Inspired by Minty Green’s superb pit thread, has Supreme Court Justice Antonin Scalia crossed the line of apparent impartiality and now step down from the Court?
Sure, we all know each Justice carries their own biases and political leanings with them when the cross the threshold and become a member of the SCOTUS. We all know appointments to the Court carry political over/undertones. Yet doesn’t elevation to the final adjudicating body in the land confer a responsibility that later opinions and decisions should at the very least respect the Constitution, the People and the continuation of the Republic?
And yes, we all know each Justice is invited to speak at engagements outside of the Court. Pundits scrutinize every word of every speech for clues as to how each Justice may vote on the next case.
This time, has Justice Scalia gone too far? Yeah, we know he’s a conservative. We can make almost sure bets how he votes on cases. Yet with this speech has he crossed the line? Has he tainted himself beyond all reproach that any future opinions he may issue will not be based upon the facts of the case but a political agenda he shares with others?
Hate to break the news to you, but Supreme Court opinions have been based upon the political opinions of the particular Justice writing them (or group of justices) for at least 200 years.
Oh, and the highest court of appeal decides cases with little reference to the facts of the case but almost entirely on the basis of the law that governs those facts and (as in Lawrence) the application of the U.S. Constitution to that law.
Scalia definitely has a rather strange fixation on homosexual sodomy, but so did Brennan and Marshall on the death penalty and Douglas on intellectual property.
If he regularly commented out of court on how he intended to rule on decisions on specific future cases, perhaps he should resign. Other than that, I say no.
I see nothing wrong with him speaking in front of an audience about a past case and essentially explaining what went into the desenting opinion. It’s no secret.
Scalia believes that a vast majority of politically controversial cases are the subject for legislative action, not judicial action.
He went overboard in being too specific about the “under god” case in a public speech. That was beyond the bounds of propriety. But that he’s made known his stance on the correct way to interpret the Constitutin in a general sense doesn’t disqualify him.
If he stepped down, there’d be only one textualist left on the Court out of nine, and that one is a bit of a literalist to boot. I’d rather have Scalia around to keep Thomas a bit limber on some things and to remind him that texts have authors and audiences. But of course what we think of Justices’ interpretive theories doesn’t make or break them, otherwise I’m sure we could form a committee to oust Stevens for that nonsense of citing the European Court of Human Rights as an authority this summer.
As a law student, I’ve read a lot of cases. A whole fucking lot, if I don’t mind saying. Scalia stays true to his textualist roots even when it ends up with a result favoring the “left-wing” position. I trust his position to be consistent in that respect. I was disappointed that he let his feelings be known in this specific case, but it was no surprise, as it fits with his methodology.
Estrada wasn’t qualified because he refused to discuss his judicial philosophy in sufficient detail or indicate how he would rule in controversial cases. Now Scalia should resign because he did
Wait, he ridicules a case saying “Saying It Ignores the Constitution” and you want him to step down because he does not respect the Constitution? Rex gave a prime example of what you are hinting Scalia does when Stevens chose another foreign body to compliment his druthers (no pun intended) rather than the Constitution.
Scalia’s speech was intemperate and inappropriate to the dignity of his office, but in no way violates any rule of judicial ethics. I’d be very happy if he decided to retire, but I do not in any way believe that last night’s speech compromised his ability to impartially judge future cases.
He shouldn’t step down, but it’s a mistake to call him a textualist. Sure, he’s happy to play the textualist card when it suits his purposes, but he’s more than happy to absolutely mangle text when it gets him his way. For the most egregious case of this I know of, look at the takings cases he and Brenann shot back and forth at each other, starting with Grand Central. Both justice abuse the hell out of the language of previous opinons.
And let’s not forget that textualism itself doesn’t exist in a strict sense; I doubt Scailia would say that there’s no such thing as a substantive due process right or right to contract, even though these things both rely on going beyond the language of the due process clause.
Also- yea, what the heck is up with Scailia’s obcession with homosexuality? His dissent in Romer (I think it was Romer- the California case striking down the state constitutional amendment prohibiting protective legislature for homosexuals) was basically “The gays are going to get us! We have to stop them!” written out over twelve pages.
What I really love in this Associated Press account, though, is this sentence: “Scalia is a hero of conservatives who favor a strict adherence to the actual text of the Constitution.” The “actual text”–as opposed to…what, exactly? The A.P. writer didn’t mean to prove Scalia’s point. But she did.
Ditto. Also, I imagine the other justices feel a little embarrassed. IMHO, a Supreme Court Justice should be much, much, MUCH more reserved than he is. I mean, he sometimes strikes me as some sort of talk radio personality.
