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The Inconsistency of the Majority Justices With Their Previously Expressed Views

Alan M. Dershowitz

in Supreme Injustice: How the High Court Hijacked Election 2000

Aims to demonstrate that, during the (Bush vs Gore) US presidential election of 2000, by any reasonable standard of evaluation, the majority justices of the US Supreme Court failed to test the US ... More

Aims to demonstrate that, during the (Bush vs Gore) US presidential election of 2000, by any reasonable standard of evaluation, the majority justices of the US Supreme Court failed to test the US constitutional system in ways that it had never been tested before, and did so not because of incompetence, but because of malice aforethought. Contrasts the prior decisions and writings of the particular majority justices with the opinions that they joined in this case; the dramatic discrepancies found raise troubling questions. Moves from this concrete evidence to a more speculative consideration of what may have motivated these inconsistencies. The different sections of the chapter look first at the decisions of Justice Antonin Scalia, Justice Sandra Day O’Connor, Justice Anthony Kennedy, Chief Justice William H. Rehnquist, and Justice Clarence Thomas. The following speculative sections first ask generally why each justice behaved as they did, and then go on to devote separate sections on the motives of each of the five justices.Less

Scalia, the Environment, and the Modern Standing Doctrine

Evan Tsen Lee

in Judicial Restraint in America: How the Ageless Wisdom of the Federal Courts was Invented

This chapter focuses on Antonin Scalia. In 1983, as a young judge on the D.C. Circuit, Scalia published a law review article called “The Doctrine of Standing as an Essential Element of the Separation ... More

This chapter focuses on Antonin Scalia. In 1983, as a young judge on the D.C. Circuit, Scalia published a law review article called “The Doctrine of Standing as an Essential Element of the Separation of Powers.” In it, he laid bare many of his beliefs about the relationship among the three branches of the federal government. Scalia's theory of standing doctrine—as protection against courts telling majorities how best to pursue their own interests—resonated the most deeply in the environmental cases, where it was obvious that all citizens were similarly vulnerable.Less

The Formalist Crusade of Antonin Scalia

in Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations

This chapter describes Antonin Scalia's orginalism, which is distinctive in several respects and is more concerned with restricting judicial lawmaking than with the value of popular sovereignty. It ... More

This chapter describes Antonin Scalia's orginalism, which is distinctive in several respects and is more concerned with restricting judicial lawmaking than with the value of popular sovereignty. It is not believed that Scalia has successfully resolved the internal tensions in his thinking. His recent theoretical writings seem to have reverted to a more simplistic version of originalism. His best-known opinion on the separation of powers is his dissent in a case concerning the constitutional status of the independent counsel. Originalism plays a limited role in some of Justice Scalia's most notable opinions despite its centrality in his thinking about judicial review. Hence, despite his views on originalism, he has tended in practice to invoke entrenched interpretations of constitutional provisions by either the Court itself or by long-standing public consensus.Less

Implementation

Jeffrey Brand-Ballard

in Limits of Legality: The Ethics of Lawless Judging

This chapter addresses two basic questions about implementing selective optimization: (1) to what extent should judges disclose or conceal the fact that they selectively optimize, and (2) are judges ... More

This chapter addresses two basic questions about implementing selective optimization: (1) to what extent should judges disclose or conceal the fact that they selectively optimize, and (2) are judges psychologically capable of internalizing selective optimization? It considers some familiar sexual orientation cases decided by the U.S. Supreme Court, including Lawrence v. Texas and Romer v. Evans. It is argued that some of Justice Antonin Scalia’s dissenting arguments demand a response and that selective optimization offers one. The chapter argues that although judges have a pro tanto duty of candor, this duty is often overridden in suboptimal-result cases. It is sometimes permissible, therefore, for judges to advance fallacious legal arguments without admitting it—for them to deviate surreptitiously. Some implications of selective optimization for the treatment of precedent are explored, as is the relationship between selective optimization and Cass Sunstein’s judicial minimalism. Finally, recognizing that consciously obeying selective optimization may be psychologically impossible for some judges, the chapter considers the possibility of unreflective judicial conformity to selective optimization.Less

Reading with Guns: District of Columbia v. Heller

John Frow

in On Interpretive Conflict

This chapter explores a 2008 US Supreme Court case that brings into play two starkly contrasted readings of the Second Amendment to the US Constitution: a textualist or “originalist” reading written ... More

This chapter explores a 2008 US Supreme Court case that brings into play two starkly contrasted readings of the Second Amendment to the US Constitution: a textualist or “originalist” reading written for the majority by Justice Antonin Scalia, and a “contextualist” reading written by two of the dissenting justices. The Court’s discovery of a previously unarticulated constitutional right (the right of private citizens to carry guns for self-defense) is firmly rooted in the libertarian principles of the US gun lobby. Yet its judgment in this case is made as though it were entirely free of any such context: the Court endows the text of the Constitution with an absolute authority and envisages its own decision-making processes as taking place within an apparently timeless and transcendental institution. That interpretive institution is, however, neither timeless nor transcendental but rather a field of self-reinforcing authority that enables and contains dissenting views and is composed of quite heterogeneous materials: a multiplicity of legal domains, a network of material and immaterial orderings, disparate forms of discourse, and the pre-judgments and tacit understandings that underpin them.Less

Affirmative Action Baby

Corey Robin

in The Reactionary Mind: Conservatism from Edmund Burke to Sarah Palin

This chapter analyzes Justice Antonin Scalia and his originalist jurisprudence. It suggests that Scalia's mission is to make everything come out wrong. A Scalia opinion, according to New Yorker ... More

This chapter analyzes Justice Antonin Scalia and his originalist jurisprudence. It suggests that Scalia's mission is to make everything come out wrong. A Scalia opinion, according to New Yorker writer Margaret Talbot, is “the jurisprudential equivalent of smashing a guitar on stage.” Scalia may have once declared the rule of law the law of rules, but rules and laws have a particular frisson for him. Where others look to them for stabilizing checks or reassuring supports, Scalia looks for exhilarating impediments and vertiginous barriers. Where others seek security, Scalia seeks sublimity. Scalia has said that, “being tough and traditional is a heavy cross to bear. Duresse oblige.” That, and not fidelity to the text or conservatism as it is conventionally understood, is the idée fixe of Scalia's jurisprudence.Less

Aspect-Blindness in Religion, Philosophy, and Law: The Force of Wittgensteinian Reading

Christopher C Robinson

in Wittgenstein and Political Theory: The View from Somewhere

Aspect-blindness is a condition that Wittgenstein posits in order to create a contrast to the experience of changes in aspect. This chapter examines the relationship between language-games and ... More

Aspect-blindness is a condition that Wittgenstein posits in order to create a contrast to the experience of changes in aspect. This chapter examines the relationship between language-games and aspect-blindness. Can some language-games be so rigid they curtail linguistic creativity extensively enough to induce aspect/meaning blindness, and vice versa? Does the experience of aspect-blindness give an intimate view of the effect of ideology on perception? This chapter defines ideology in Marxian terms as a super-structural or cultural effect that masks reality and directs vision away from the social sources of pain and leaves the sufferer, a person or a class, with no recourse other than seeking relief in religion or stoicism. This chapter also examines Plato's early dialogue, ‘Euthyphro’, and Antonin Scalia's opinion in the case of Michael H. v. Gerald D.Less

Literal Meaning, the Dictionary and the Law

Christopher Hutton

in Language, Meaning and the Law

This chapter looks more closely at some issues and trends in legal interpretation and legal decision making, against a background of debates in the United States in particular between originalism, ... More

This chapter looks more closely at some issues and trends in legal interpretation and legal decision making, against a background of debates in the United States in particular between originalism, textualism (Scalia) and the idea of living constitution. Both law and linguistics deploy the idea of literal meaning, but it is hard to find a convincing account of this problem. Courts use dictionaries to help with problems of interpretation but their approach is open to the charge of inconsistency. Linguists offer their own approaches to help in the identification of legally relevant meaning, but these are also problematic. Judges employ dictionaries because they offer an apparently objective framework, without any reference to the actual facts of the case.Less

Making It Up as We Go Along

in Constitutional Conscience: The Moral Dimension of Judicial Decision

In James B. Beam Distilling Co. v. Georgia, the Supreme Court rejected the propriety of employing “selective prospectivity” in civil litigation: when in a civil case the Court announces a new rule of ... More

In James B. Beam Distilling Co. v. Georgia, the Supreme Court rejected the propriety of employing “selective prospectivity” in civil litigation: when in a civil case the Court announces a new rule of law and applies the new rule in that case, it concluded that the judiciary is obliged to apply the new rule to the parties in other pending civil actions as well. Justice Antonin Scalia explained that in his view the employment of selective prospectivity amounts to an unconstitutional judicial exercise of the power to make law. What (if anything), based on the account this chapter gives of constitutional decision, enables us to speak of constitutional law as anything other than a series of decision points with no necessary connection over time? The answer must lie in large measure in the ongoing cultivation of the constitutional virtues, and this chapter argues that it is possible, primarily through the process of public discussion and criticism of the constitutional decisions of officials.Less

Can Congress Protect Special Prosecutors from the President?

Andrew Coan

in Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law

Can Congress constitutionally restrict the president’s power to remove a special prosecutor? In a 1988 case called Morrison v. Olson, a nearly unanimous Supreme Court held that the answer was yes. ... More

Can Congress constitutionally restrict the president’s power to remove a special prosecutor? In a 1988 case called Morrison v. Olson, a nearly unanimous Supreme Court held that the answer was yes. Only Justice Antonin Scalia dissented. This chapter recounts the dramatic story of that case and the subsequent developments that have caused many commentators to question the vitality of the Court’s ruling. Partly for this reason and partly for reasons of ordinary politics, Congress seems unlikely to pass legislation protecting special prosecutors any time soon. As a result, the responsibility for protecting special prosecutors now rests where it has for most of U.S. history—squarely on the shoulders of the American people.Less

The Unrealized Precedent of DAVIS V. BANDEMER

Nicholas R. Seabrook

in Drawing the Lines: Constraints on Partisan Gerrymandering in U.S. Politics

This chapter examines the involvement of the Supreme Court of the United States in litigation relating to partisan gerrymandering, paying particular attention to a case that attempted to apply the ... More

This chapter examines the involvement of the Supreme Court of the United States in litigation relating to partisan gerrymandering, paying particular attention to a case that attempted to apply the previously established Davis v. Bandemer precedent to congressional elections: Vieth v. Jubelirer. It begins with an overview of Badham v. Eu, which arose from the redrawing of California's congressional districts in the aftermath of the 1980 census and its most significant holding: that the Bandemer precedent, which had initially been applied to the drawing of state legislative districts only, also extends to the drawing of congressional districts. The chapter then considers the circumstances surrounding the Vieth case, in which the alleged political gerrymander concerned the reapportionment plan for the congressional districts in the state of Pennsylvania rather than those for the state assembly. It also analyzes the Supreme Court's 2004 decision in Vieth, focusing on Justice Antonin Scalia's plurality opinion and Justice Anthony Kennedy's concurring opinion.Less

Gerald R. Ford

Steven G. Calabresi and Christopher S. Yoo

in The Unitary Executive: Presidential Power from Washington to Bush

This chapter illustrates the difficulty Gerald R. Ford faced in defending the prerogatives of the executive branch, given that Watergate had effectively destroyed public confidence in the presidency. ... More

This chapter illustrates the difficulty Gerald R. Ford faced in defending the prerogatives of the executive branch, given that Watergate had effectively destroyed public confidence in the presidency. Ford also lacked the mandate and the broad base of political support needed for vigorous presidential action. Instead of acquiescing in congressionally imposed invasions on the unitariness of the executive branch, however, Ford held firm and defended the unitariness of the executive with the aid of his assistant attorney general for the Office of Legal Counsel, Antonin Scalia. The first two major issues of the Ford presidency emerged one month into his administration, when he pardoned both former president Richard M. Nixon and many individuals who had evaded the draft during the Vietnam War.Less

In Scalia’s Shadow

Robert P. Saldin and Steven M. Teles

in Never Trump

This chapter explores the creation of Checks and Balances, a new group of conservative legal critics of the Trump administration. From his racist attack on the federal district judge ruling on the ... More

This chapter explores the creation of Checks and Balances, a new group of conservative legal critics of the Trump administration. From his racist attack on the federal district judge ruling on the Trump University case and suspicions that he would appoint his own sister to the Supreme Court, to his threats to revise libel law so as to silence his rivals and his nearly total lack of constitutional discussion, Donald Trump was almost no prominent conservative lawyer's first choice. Once he dispatched all his Republican rivals, however, conservative lawyers were in a quandary. The death of Antonin Scalia, the most celebrated conservative jurist of his generation and a leader of the conservative legal movement, put the future of the Supreme Court squarely on the ballot. Once the character of Trump's governance became clear, Checks and Balances emerged to criticize the administration's legal conduct.Less

Mountains and Sea

Jefferson Decker

in The Other Rights Revolution: Conservative Lawyers and the Remaking of American Government

The Reagan era proved difficult for conservative public-interest foundations, which lost key legal talent to the administration and struggled to maintain the same level of fundraising without a ... More

The Reagan era proved difficult for conservative public-interest foundations, which lost key legal talent to the administration and struggled to maintain the same level of fundraising without a Democratic administration to oppose. Mountain States Legal Foundation nearly collapsed after bringing a lawsuit about the cable television industry that proved unpopular with its board of directors, and Capital Legal Foundation went out of business after bringing a difficult libel action against CBS. But Pacific Legal Foundation won a major, precedent-setting case in the US Supreme Court. Nollan v. California Coastal Commission determined that regulators could not force a homeowner to grant public access to his dry beach in exchange for a building permit. And it showed that the Supreme Court wanted to determine when a government regulation might constitute the “taking” of private property without compensation.Less

Conclusion

Ilya Somin

in The Grasping Hand: 'Kelo v. City of New London' and the Limits of Eminent Domain

The Conclusion summarizes events in New London since the Court’s decision, recapitulates some key lessons of the book, and discusses the future of public use. Nine years after the Kelo decision, the ... More

The Conclusion summarizes events in New London since the Court’s decision, recapitulates some key lessons of the book, and discusses the future of public use. Nine years after the Kelo decision, the condemned property still lies empty. But the controversy sparked by the Kelo takings has led to real progress for property rights. In addition to stimulating effective reforms in some states, it has undermined the seeming consensus in favor of a very broad definition of public use. The controversial and the closely divided nature of the decision also make it more likely that Kelo will ultimately be overruled or limited by the Court, a result that would be consistent with the Court’s current doctrine on how to determine whether a precedent should be reversed. Like previous reform efforts, the Kelo story demonstrates that efforts to strengthen protection for constitutional rights are most likely to succeed if they combine legal and political action rather than focus on one approach exclusively.Less

Conclusion

Ilya Somin

in The Grasping Hand: "Kelo v. City of New London" and the Limits of Eminent Domain

The Conclusion summarizes events in New London since the Court’s decision, recapitulates some key lessons of the book, and discusses the future of public use. Nine years after the Kelo decision, the ... More

The Conclusion summarizes events in New London since the Court’s decision, recapitulates some key lessons of the book, and discusses the future of public use. Nine years after the Kelo decision, the condemned property still lies empty. But the controversy sparked by the Kelo takings has led to real progress for property rights. In addition to stimulating effective reforms in some states, it has undermined the seeming consensus in favor of a very broad definition of public use. The controversial and the closely divided nature of the decision also make it more likely that Kelo will ultimately be overruled or limited by the Court, a result that would be consistent with the Court’s current doctrine on how to determine whether a precedent should be reversed. Like previous reform efforts, the Kelo story demonstrates that efforts to strengthen protection for constitutional rights are most likely to succeed if they combine legal and political action rather than focus on one approach exclusively.Less