Oddly enough, he didn’t actually call the Pledge case decision bullshit. He actually indicated that it flowed from precedent – that the high court’s establishment clause jurisprudence provided “some plausible support” for that decision.
So, side point: Is it possible that Scalia is criticizing the trend in religious jurisprudence, but would consider affirming the Pledge decision on stare decisis grounds?
“I was under the impression that Supreme court judges are the highest justices in the land by virtue of their command of constitutional, and that includes Justice Scalia.”
Well, you’re wrong. That’s how it SHOULD be, but the picking is done according to political leanings more than anything. That’s the bitch of the whole thing.
We certainly have had Justices who were not constitutional scholars. E.g., s Earl Warren had been Governor of California and District Attorney in Alameda County.
However, that general principle doesn’t apply here. Antonin Scalia WAS a leading Constitutional scholar before he was appointed to the Court. His experience, his lectures, and his writings since have only strengthened his background. Lots of lawyers disagree with Scalia’s Constitutional approach, but nobody disputes his command of Constitutional matters.
Absolutely right. Scalia’s a serious legal scholar. Seriously scary, but also a legitimate pick for the Court.
Compare and contrast with Bush II’s upcoming first nomination. Oh, how I long for the day when december opens the inevitable GD thread about it.
That’s exactly how I read his comments. I don’t think he’ll decide the case on stare decisis, but he left open that possibility.
Again, I don’t think that’s what he’s saying. I think his point is that the test for what’s allowed under the Establishment Clause shouldn’t be whether something “gives a leg up to one religion or another, or to theism over atheism.” I think his argument is that the Establishment Clause was intended to be more lenient than that, and was never intended to construct a “wall of separation between Church and State.”
Of course, it’s kind of hard to tell what he meant to say without reading his actual comments.
Excuse the bump, but there’s news out of the Supreme Court today. First, to nobody’s surprise, the Court has agreed to review the Pledge of Allegiance case. Second, to my complete surprise, Justice Scalia appears to have recused himself from the case.
Why are you surprised?
Because if Scalia had thought he’d be required to recuse himself from the case, he never would have opened his mouth in the first place.
It is good news. Unlike minty, however, I’m really not that surprised. IMO, Scalia is, by and large, a good judge, even if I don’t think he’s a particularly good legal theorist.
Sua
P.S. Of course, my definition of “good legal theorist” is one who agrees with my interpretation of the law. 
A cynic might say that a 4 4 tie, with the “casting vote” recused - for merely incidentally expressing “the obvious” - might achieve more at the ballot box than a 5 4 “vote” for something with little practical effect.