[EL] Justice Scalia's hocus pocus

[Schultz, David A.]

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
1536 Hewitt Ave
MS B 1805
St. Paul, Minnesota 55104
651.523.2858 (voice)
651.523.3170 (fax)
http://davidschultz.efoliomn.com/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/
Twitter:  @ProfDSchultz
My latest book:  Election Law and Democratic Theory, Ashgate Publishing
http://www.ashgate.com/isbn/9780754675433
FacultyRow SuperProfessor, 2012, 2013, 2014
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