Brennan and Marshall regularly criticized the death penalty decisions of the court outside of their decisions. I assume we then would all agree that those two detracted from the respect of the Court and should have been shouted down.
PS: As far as I am concerned, judges should speak out more. It would eliminate the ridiculous charade that goes on now in Congress where nominees refuse to answer any questions about anything lest it taint their ability to later render decisions.
William Brennan and John Marshall and Thurgood Marshall? John Marshall was, and I think you must agree, a partisan on and off the court–see, for instance the Aaron Burr treason trial. His example is so far in the past as to have no effect on the perceptions of a public the bulk of which has no clear recollection of the murder of John Kennedy and nothing about Warren G. Harding’s dalliances. Justice Brennan, to my recollection and understanding, was a gentleman who never went any farther in public than reiterating the rational of his own decisions, without disparaging the opinions, reasoning, wisdom and motives of those who did not join in his opinions. The same is true of Thurgood Marshall while he was a serving justice.
As far as applauding no holds barred public debate by the Justices outside the court, I think I have made my point on the need to maintain public respect for the court as forcefully as I can. Look at the regard the public holds for Congress as an institution; look at the regard held for the President, this one or the last several, or any since the revered G. Washington, farmer. Is that what you want for the arbitrators of the rules we live by? Do you really want to turn the court into the same sort of God damned World Wrestling Foundation spectacle that is Congressional debate and Presidential election campaigns?
When one Justice decides to publicly deride the reasoning, wisdom, learnedness, intellectual honesty and integrity of his brethren outside the priviliged limits of his own written or oral opinion (which is just what Justice Scalia did), he places his own ego above the integrity of the institution. That is not a good thing.
Aw dammit, Spavined Gelding, why’d you have to go off and make my point in such a calm and reasonable manner? Where’s the fun in that? 
It is the consequence of remaining in the cool northern climate. Removing to the Gulf Coast where you are submerged it the general Texas atmosphere of over heated political discourse has addled your poor old brain. Come back to the Good Side, Minty, return to the sweet Upper Mississippi Valley, and you will be restored to deep passion expressed with decorum. Screw those Yahoos, Cowboys and Roughnecks that run things south of the Brazos. Come to where cows are for milking, not for roping.
Cows are for barbecuing, you barbarian.
Yes, you certainly have a point there. Maybe we should have all of our governmental decisions made behind closed doors, outside of the public arena, and only with the display of a unified front without any messy displays of dissent.
Since the Republicans hold the Presidency & the House, and there is sort of a tie in the Senate, and the conservatives hold a majority of the seats on the Supreme Court, I guess that means the liberals and Democrats just need to shut up and get with the program until they can win an election such that they take control of the branches of government. What a nice, decorous, clean & tidy place Washington would be as a result. And the Pit, for that matter…
We can now close all the Pit threads on the war, the Plame matter, the California recall, etc., since we must not have any criticism of the wise decision of our beknighted government.
We have a Hawkeye love fest going on here, Schplebordnik, if that is indeed your name, which I very much doubt. 
Let us old boys enjoy ourselves for a moment as we reminisce about what Professor Bonfield, the Screaming Eagle, would say about all this.
On the merits, you deliberately misconstrue what I say. The Supreme Court is a unique institution. It is expected to conduct its business with decorum and gravatas. Its deliberations are private, and deliberately so in order not to be disturbed or diverted from a high-minded search for truth and reason. That is not to say that its proceeding s are closed to public scrutiny–after all the arguments and the opinions are public. The court’s deliberations are very properly concealed so that the public is shielded from the process by which the great legal issues of the day are decided. The public ought not to be allowed to view the spectacle of Justice Scalia standing on his chair screaming at Justice O’Conner that she is a homo loving bitch with no viable concept of the incorporation of the Bill of Rights into the 14th Amendment.
The court is different from the Congress and the Executive. It is wrong headed to suggest that its deliberations ought to be conducted with the same rough and tumble enthusiasm as those of the other two branches.
I’ve got no relationship whatsoever with Iowa, thank you.
Your argument is constructed of gossamer. Where exactly do all the esteemed traditions come from, and what exactly are their function?
I’m a lawyer. The courts are not church and the law is not religion. Decorum and gravitas have their place (and the President and Congress have their own traditions in that regard), but not where they impede the exchange of ideas. That’s why they put the 1st Amendment first.
At the Supreme Court level, much of what is being done is politics, pure and simple. I’d prefer to see more honesty and openness about what’s going on there.
I’ve never heard of a SCJ screaming about a recent opinion in public, ever. It shows a complete lack of respect for the institution. All this over consensual conduct between adults in their homes.
Shouldn’t we stone adulterers? I’m feeling conservative right now, let’s say. Then, at least, we have a victim to avenge. It’s right there IN THE BIBLE!
I wonder why, of all the stupid religious crimes on the books that have been wiped out over time, this one drives some conservatives crazy? It’s not like arresting someone for sodomy absolves the “sin” or makes them have faith in the Lord. It’s just a waste of time, money, and law enforcement resources – if the philosophical arguments don’t appeal to you.
Hey, you had Bonfield for a prof? How cool is that? I spent my last two years of school studiously avoiding Administrative Law. So tell me, was Sandy Boyd there when you were in school? Hines for Property, right? Ah, good times.
Your point about the essential privacy of the Court’s decisions is well-taken, by the way. There’s currently a lawsuit filed in federal court in San Antonio against the Texas Supreme Court, seeking to force the justices to make public their votes on petitions for review. I am, needless to say, entirely opposed to that ridiculous and pointless intrusion on the dignity and authority of my state’s highest court.
Minty, I had Art Bonfield for Constitution in second year. Art hadn’t written the administrative procedures chapter to the Iowa Code back then, so no Admin Law. I had Charlie Davidson for Property. All I know is how to gain title to a wounded deer. Duncan Hines taught a real estate transactions course where I got is serious trouble for insolence and talking back. I was Al Weidis’s research ass’t third year (he died unexpectedly a year or two ago) and worked for Sandy Boyd proofreading footnotes on an International Law article after the bar exam and before active duty some 45 days later. I had Sam Fahr for Criminal Law and Ron Carlson for Criminal Procedure and, hold on to your ten-gallon hat, Mason Ladd himself for Evidence. Clearly it was a long time ago. I see that Hines is retiring. Dean Vernon (Conflicts of Laws) is dead–a good man, may he rest in peace.
Dewey, minty, and other DSMB jurisconsults:
Can you, in 100 words or less, give me a clear statement of Scalia’s judicial philosophy, other than “I’m right; all those other idiots on the court are wrong, except when they agree with me” that seems to express his attitude :dubious:
I don’t agree with Sandra Day O’Connor’s positions in general. But I can understand and respect her position: The court should practice judicial self-restraint. It should give great deference to the idea that a Legislature can read the Constitution and found its laws on that undertanding. It should be loath to find “penumbral rights” unless they are clearly implied in the actual text (My example that freedom of speech implies freedom to be heard would be an example of clear implication). Nonetheless, respect for stare decisis means that decisions founded in a different philosophy that have become important elements of the law of the land should be upheld in general, unless a clear violation of textually founded rights or powers commands a majority of the court to reverse a previous decision.
Scalia is widely respected as a deep thinker with a strong conservative philosophy. But bluntly, I fail to grasp that he has such a philosophy. I’ve read some of his opinions and a little of his non-opinion writing, and I fail to see a clearly articulated philosophy articulated. Bluntly, I feel like the little kid in the fable, who cannot understand why everyone is admiring the emperor’s new clothes.
Schplebordnik, we Iowans and former Iowans and temporary Iowans share a mystic bond that those of you beyond the Land Between the Rivers cannot share or understand. To a great extent it is overcompensation for the state’s insignificance in the great scheme of things. Our only President, for Christ’s sake, is Herbert Hoover and he got the hell out of here as soon as he got into long pants. The mind set is illustrated by a mock headline in a parody of The Des Moines Register, the newspaper that likes to think that it is the newspaper that all Iowa depends on: World Ends–Many Iowans Die.
That the workings of the US SupCt is politics on a different level in self-evident. There is a long history of the Court’s involvement in questions that are both political policy and traditional law stuff. Marburry v. Madison was a political case in which Justice Marshall took the opportunity to assert a new concept of the Court’s power. Dred Scott was a political case. The Slaughterhouse Cases were political, as were the New Deal cases —do you really think that the only issue was Upstate New York dairies? Brown v. Board of Education was political. The same with the Pentagon Papers and the New York Times slander cases and the Warren Court’s criminal procedure cases. Certainly the Florida election case was politics. When ever the Court sets national policy or intrudes into the election process it is political. That is unavoidable.
The process is, it seems to me, about as open as it can be. The briefs and arguments are public. The decisions are public documents. But they are law cases and need to be decided based on the traditional processes of the law, not on opinion poles, money raising and the passions of the moment or the expediencies of party and cause. In order to retain its influence and power the Court must at least pretend to remain above the political affray.
But of course the process is political. People are appointed to the Court based on their political inclinations and or cronyism or as a reward for past political service. It does not always work out as expected. Witness Justices Warren, or Frankfurter, or Souter.
Be that as it may, the last thing the Court needs is for its members to give up all pretense of dispassion and fair mindedness and hold themselves out as partisans of one view of policy, culture or history impervious to logic, argument or fact. That undermines the Court’s standing. Once the Court’s standing is undermined its decelerations can be ignored. While the appointment of, for instance, Tom Delay to the Court would certainly liven things up it would not be helpful.
As far as outcome based decisions are concerned, see my first posting, above.
Scalia is a textualist, meaning he believes that one should look to the words of the text of what is being interpreted as those words were understood at the time they were written. It is distinguished from originalism (the other major branch of strict constructionism) in that it does not look to the intent of those writing the interpreted text – only the words on the page and the understood meanings of those words at the time they were written count. Reference to things like James Madison’s personal letters are verboten.
That’s it in a nutshell, which is of course too brief to be truly accurate. Happily, unique among the other justices, Justice Scalia has written a book entitled A Matter of Interpretation: Federal Courts and the Law in which he lays out his jurisprudential philosophy in some detail. He also gives space to legal scholars critical of his philosophy (and replies to each). It is not a long book – 149 pages – and is an enlightening read.
The problem,Dewey, is, as pointed out in a long post with an excerpt above, is that Justice Scalia’s adherence to a textural interpretation of the Constitution is inconsistent and opportunistic. I contend that the textural view he espouses is a mere fig leaf for what is basically a result based analysis.
That is not the topic here. The topic is the good Justice’s tendency to go ballistic and public when his particular take, be it text based or result based, is not shared by his brethren. In fairness to you, however, you were asked a direct question and you answered it quickly and directly. That is to your credit.
Scalia is a strict constructionalist when it suits him, and a crybaby the rest of the time.
I would disagree; I think the fact that Scalia has on rare occasions deviated from his stated methodology only proves he’s human, not that he’s lying. No one is perfectly consistent 100% of the time, and Scalia is far more consistent than most. **
A topic to which I’ve alread replied in several prior posts. But if you’re so concerned with remaining on the topic of the OP, why aren’t you bitching out Polycarp for asking an off-topic question?
To further the hijack, I just need to add that I feel that I’ve been sucked into some kind of twilight zone episode, because, I too am a graduate of the University of Iowa Law School. Until this thread, I had no idea that minty and Spavined Gelding were graduates also, which makes me wonder what, precisely, the odds are that three people who know nothing about each other, all are lawyers, all who live in different parts of the country (Chicago here), who all post on the same message board, would be graduates of the same law school. Must be something in the water in Iowa City. Or something in the beer at the Deadwood. I’m astounded. Must be the “mystic bond” Spavined Gelding mentioned earlier.
And, oddly enough, I just spoke with the fine Dean Hines a couple weeks ago at Homecoming. He is looking forward to a fine retirement, but will, of course, still aid the law school in shaking the money tree. I, like minty completely avoided Admin. Law, and Bonfield, but had I did take a seminar with the illustrious David Baldus. It sounds like I’m a tad bit younger, having missed Boyd and Fahr, and the others.
Very odd indeed.
Now, somebody was saying something about Scalia?
We’re going to fight, fight, fight for I-o-wa . . .
(Class of 2000 here, by the way. Spavined Gelding, IIRC, was late 60s/early 70s.)
As for Scalia’s judicial philosophy, calling the man a “textualist” is basically meaningless. Heck, I’m a textualist. Obviously, we have rather different takes on a lot of those texts.
I wanted to revisit this, so I went back and re-read the post in question. It is a reprint of two paragraphs from a missive from a law professor listserv.
Its first paragraph simply confuses originalism for textualism, and thus doesn’t really address Scalia’s stated philosophy in any meaningful way. The crux of the criticism is that Scalia didn’t look to the original intent of the drafters of the 14th amendment in dissenting in the recent Michigan affirmative action case. But of course Scalia wouldn’t do so – he’s a textualist, not an originalist (indeed, much of his book is devoted to the problems of originalism). Scalia would only look to the text – here “equal protection of law” – and to what that text meant in 1868. He would not look to the things the excerpt notes, such as the existence of affirmative-actionish legislation by the 1868 Congress.
The second paragraph essentially says that Scalia uses stare decisis when convenient to hide from the unpleasant effects of his jurisprudential philosophy. It is not a new criticism; Laurence Tribe raises much same point in his portion of Scalia’s book. And Scalia addresses it squarely: stare decisis is an exception to any given interpretational scheme (not just strict constructionist schemes) that basically says “these prior decisions were wrong, but the costs of undoing those decisions is so high that they should stand anyway.” Scalia sums up: “As I have explained, stare decisis is not part of my originalist [read: textualism, not original intent] philosophy; it is a pragmatic exception to it.”
And yes, there is a danger of a judge importing his own views by the selective use of that doctrine. As Scalia puts it, “I do not claim that originalism [read: textualism, not original intent] inoculates against willfulness; only that (unlike aspirationalism) it does not cater to it.”
Scalia further points out that he seeks to use consistent rules in deciding when and where to use stare decisis as a hedge against this sort of willfulness. See, e.g., Scalia’s dissent in Walton v. Arizona, stating that stare decisis exists “for the purpose of introducing certainty and stability into the law and protecting the expectations of individuals and institutions that have acted in reliance on existing rules,” and that when precedents are so contradictory as to fail to fulfill that purpose, they should be discarded.
The criticism’s text faults Scalia on grounds that “It is unlikely that [he] would vote to overturn Bolling v. Sharpe, but he would love to overturn precedents like Roe, Casey, Stenberg, Eisenstadt, and Carey.” But there’s both a time factor and an expectation factor in Bolling (a companion case to Brown v. Board) not found in the other cases – the other cases were decided decades later, and have not met with anywhere near the societal acceptance as the court’s decisions desegregating public schools. Indeed, to use one obvious example, a pretty big chunk of the population has devoted significant time and energy to trying to undo Roe. If NOW is to be believed, there is an expectation by most that every presidential election determines whether or not Roe will remain good law. That being the case, there isn’t the same kind of societal reliance on that particular rule as there is on Bolling, and thus, perhaps, less need for the kind of certainty provided by the faithful application of stare decisis.
More to the point, it’s a bit silly to say that Scalia’s jurisprudence is just his own imposition of conservative thought on society via the judicial process. Scalia’s opinions often run counter to what conservative politicos are advocating. His search and seizure opinions have already been noted – the traditional view is that the left prefers greater protections for criminal defendants, while the right is more concerned with law and order. Yet Scalia found infrared scanning unconstitutional.
Or consider his dissent in BMW v. Gore. A conservative shibboleth is the capping of punitive damages. Yet in BMW, Scalia dissented against imposing a constitutional limit on the size of punitive damage awards on basic textual grounds – i.e., there’s nothing in the text of the constitution that prevents large damage awards.