Some tiny creature, mad with wrath,

Is coming nearer on the path.

--Edward Gorey

Location: Pittsburgh, Pennsylvania, U.S. Outlying Islands

Writer, lawyer, cyclist, rock climber, wanderer of dark residential streets, friend.

Tuesday, April 19, 2005

Hey DeLay, While You're At It You Better Impeach Scalia, Too

Finally, someone states the obvious in a major venue: Adam Cohen convincingly demonstrates that Scalia has just as readily indulged a sort of judicial activism in service of partisan conservative ends as the supposedly run-amok liberal judges in the federal system and around the country.

Justice Scalia's views on federalism - which now generally command a majority on the Supreme Court - are perhaps the clearest example of the problem with the conservative attack on judicial activism. When conservatives complain about activist judges, they talk about gay marriage and defendants' rights. But they do not mention the 11th Amendment, which has been twisted beyond its own plain words into a states' rights weapon to throw minorities, women and the disabled out of federal court.

The 11th Amendment says federal courts cannot hear lawsuits against a state brought by "Citizens of another State, or by Citizens or Subjects of any Foreign State." But it's been interpreted to block suits by a state's own citizens - something it clearly does not say. How to get around the Constitution's express words? In a 1991 decision, Justice Scalia wrote that "despite the narrowness of its terms," the 11th Amendment has been understood by the court "to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms." If another judge used that rationale to find rights in the Constitution, Justice Scalia's reaction would be withering. He went on, in that 1991 decision, to throw out a suit by Indian tribes who said they had been cheated by the State of Alaska.

Cohen goes on to state what is obvious to honest Court-watchers, but conveniently ignored by right-wing pundits (just as they ignore the fact that, when they were in the minority, Republicans blue-slipped and filibustered more than their share of judicial nominees):

Justice Scalia likes to boast that he follows his strict-constructionist philosophy wherever it leads, even if it leads to results he disagrees with. But it is uncanny how often it leads him just where he already wanted to go. In his view, the 14th Amendment prohibits Michigan from using affirmative action in college admissions, but lets Texas make gay sex a crime. (The Supreme Court has held just the opposite.) He is dismissive when inmates invoke the Eighth Amendment ban on cruel and unusual punishment to challenge prison conditions. But he is supportive when wealthy people try to expand the "takings clause" to block the government from regulating their property.

Thank goodness someone is watching. No we can only hope someone is listening, so people start to realize what scoundrels are the judiciary-bashing GOP blowhards (I want to be clear that not every Republicn is marching to DeLay's tune, and the scoundrel label doesn't apply to them, at least not with regard to the judicial issue).

UPDATE: Apologies for not nodding toward Orin Kerr, who reached the same conclusion a week ago. Still, though, with due respect, VoCon is hardly the New York Times.


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