[EL] Justice Scalia's hocus pocus

[Thomas J. Cares]

Scalia performs poetry slam:
http://markfiore.com/mark-fiore-blog/item/cartoons/scalia-poetry-slam.html

On Tue, Jun 30, 2015 at 1:05 PM, Schultz, David A. <dschultz at hamline.edu>
wrote:

> In the closing days of the 2015 Supreme Court term Justice Scalia’s
> dissents seemed to have reach a new level of bitterness.  He also seems to
> be mistaking name calling with reasoned dissent.  In King v Burwell it was
> “Jiggery-Pokery” or “pure applesauce” and in Glossip v. Gross Scalia
> summarizes his views of Bryer’s dissent as mere “gobbledygook."  I don’t
> know about you folks but I find this name calling to be unprofessional and
> a distraction from the merits of any argument he really wishes to make.
>
> But I am even more perplexed than ever on the appeal of Scalia in terms of
> some thinking he is a great justice or legal scholar.  From a political
> science perspective it is clear that ideology more than principled argument
> frames and defines his opinions.  Moreover, his continued abrasive style
> stymies his influence on the bench.
>
> Twenty years ago Chris Smith of Michigan State and I did the first book
> published examining Scalia’s jurisprudence.  The title was *The
> Jurisprudential Vision of Justice Antonin Scalia (a book, to paraphrase,
> David Hume, which fell stillborn from the press). * I pulled the book off
> the shelf today and read our conclusion.  Let me quote a couple of
> paragraphs:
>
> Our analysis in this book reveals many consistent themes in Justice
> Scalia's decision-making.  Scalia is supportive of property rights,
> corporate interests, the death penalty, and the loosening of the
> restrictions imposed by the exclusionary rule and Miranda v. Arizona
> (1966).  He is hostile to Roe v. Wade (1973), a constitutional right to
> privacy that encompasses a women's right to an abortion, and a variety of
> speech, press, religious, and associational rights recognized in the last
> fifty years as important to American democracy.  Scalia is also generally
> skeptical of legislative power, yet supportive of the majoritarian process
> over individual rights.  He has applied his preferred interpretive
> methodology, his understanding of the constitutional framers, and his views
> of separation of powers to redefine the basic structure of American
> politics and political institutions, including that of the federal
> judiciary.  With respect to the formal outcomes advocated by Scalia, he
> supports the kind of conservative agenda that one might have expected from
> a justice appointed to the high court by President Reagan. . .
> Scalia espouses a conservatism that distinguishes him from Chief Justice
> Rehnquist and Justices O'Connor and Kennedy.  Unlike Rehnquist, O'Connor,
> and Kennedy, who seem content simply to advance their policy preferences
> through the advocacy of conservative case outcomes, Justice Scalia seeks to
> accomplish broader ends by rethinking the political philosophy and values
> that have defined American constitutional jurisprudence since the New
> Deal.  We have described Scalia's new thinking as the articulation of a
> post-Carolene Products. jurisprudence.
>
> What amazes me is that 20 years later this description still is accurate.
> What made me think also of this description is that in the Obergefell case
> he referred to long-standing traditions on marriage and how they should be
> respected as having constitutional validity.  Again 20 years ago we wrote
> how Scalia consistently invoked long-standing traditions as an argument to
> reject recognition of individual rights.  Twenty years later he is still
> doing it.  At least he is consistent. Scalia loves to quote the phrase
> “consistency is the hobgoblin of small minds.”  Maybe that tells us
> something.
>
> --
> David Schultz, Professor
> Editor, Journal of Public Affairs Education (JPAE)
> Hamline University
> Department of Political Science
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>
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