Comments on: Scalia Slams Judicial Activism

By: New World Man - fool enough to lose it

New World Man - fool enough to lose it — Sun, 27 Mar 2005 16:14:13 +0000

Decentralize the Court
There is a problem with constitutional jurisprudence that's only getting worse: coalitions of five life-tenured, unaccountable justices amending the constitution the easy way instead of the actual way the constitution says it should be amended. There ...

By: rick kerns

rick kerns — Thu, 24 Mar 2005 06:45:36 +0000

What's the remedy? What's the penalty for lawyers sitting on benches who usurp the power and tear up the basic fabric of our democracy?
The Judiciary Committees of the Congress should be composed mainly of non-lawyers who will hold hearings on illegitimate decisions and bad judges. Impeachments and contesting judicial grabbing of power should be a regular feature and role of Congress.

By: Testing Account

Testing Account — Fri, 18 Mar 2005 02:45:25 +0000

Why do we need legislatures?
Read Antonin Scalia's speech about Constitutional misuse by judges, then this post of mine where I addressed "Alice in Won...

By: James Joyner

James Joyner — Tue, 15 Mar 2005 19:30:04 +0000

Katherine: I don't disagree that even judges living by Scalia's rules will sometimes disagree. For example, new technologies will come along and bend the meaning of "interstate commerce" such that reasonable people will disagree. Scalia isn't being inconsistent in this case, though. It's true that one could stretch the "plain meaning" of the equal protection clause to extend to gay marriage. But Scalia doesn't invite that. Instead, he calls for "interpreting the Constitution according to its text, as understood at the time it was adopted." Rather clearly, since gay marriage would have been anathema at the time, it was far, far outside the intent of those who wrote it.

By: Katherine

Katherine — Tue, 15 Mar 2005 19:09:58 +0000

Brown v. Board of Ed and Loving v. Virginia are wrong according to Scalia's theory. He tries to distinguish them, and I'm glad he does, but it's a totally unconvincing attempt. To me the plain language of the 14th amendment makes it illegal to deny the vote to women or, say, gay people. Scalia's theory says that's incorrect. I don't think he's DELIBERATELY misreading the text to get the political result he wants, but I do think that he is misreading the text in a way that he wouldn't if he didn't like the results. When we hear that the 14th amendment allows Jim Crow, there's a gut reaction--"That can't be right"--that plays a big role in our decision and sets us down one path or another in our legal reasoning. It happens with liberals too. When conservatives read Roe v. Wade, they think "that can't be right"--and they see the internal flaw in the decision's logic long before liberals do. That's why you can't divorce politics from judging. Which is not to say one shouldn't try to do it. It's like objectivity in journalism--not attainable, but a goal worth striving for.

By: James Joyner

James Joyner — Tue, 15 Mar 2005 17:05:39 +0000

Julian: I think that's right. I've got no problem with the Constitution overriding the will of the majority; that's what written constitutions do. I have a big problem with judges imposing their personal view of justice on the majority, however.

By: Julian Sanchez

Julian Sanchez — Tue, 15 Mar 2005 17:01:44 +0000

Well, I think we can at any rate agree on this: Talk about "circumventing the democratic process" or "denying the will of the people" isn't a particularly useful way of framing the question. When a court strikes down a legislatively enacted statute in the name of a constituional right, it's "overruling the will of the people" more or less by definition, and we agree that's what courts are there to do: check majorities. The real question is: Was the question rightly decided or not? If the judge correctly applied the law, then the "will of the majority" is beside the point. If the judge wrongly applied the law, then THAT's the objection, and it doesn't even really matter if opinion polls show 51% actually approve of the result after all.

By: Confederate Yankee

Confederate Yankee — Tue, 15 Mar 2005 16:22:28 +0000

Scalia Shows His Mettle
If there was any doubt Justice Antonin Scalia is qualified to be Chief Justice, that doubt was erased yesterday in a 35-minute speech where he blasted the recent 5-4 Supreme Court decision to overturn the juvenile death penalty based on "evolving not...

By: James Joyner

James Joyner — Tue, 15 Mar 2005 15:40:58 +0000

Jim: Heh. No, merely polite disagreement. I'll gladly share another bottle of pinot noir with Julian next time I'm in DC.

By: Jim Henley

Jim Henley — Tue, 15 Mar 2005 15:39:17 +0000

Well now I'm sad. I like you AND Julian, and you've both now referred to each other as your "friend." In mediaspeak that means you hate each other's guts. Bummer.

By: Just Me

Just Me — Tue, 15 Mar 2005 15:31:06 +0000

I really like Scalia. I think he made some very good points about judicial activism in his dissent on the juvenile death penalty case.

I think one problem with the current way of thinking is that we think dumb laws always seem to amount to some constitutional violation, when in fact they are really just dumb laws. If a person doesn't like a dumb law, they should seek to change it through legislation, debate it and advocate for their position, they shouldn't seek the courts as their first recourse.

Some laws really are dumb laws, but if we find some kind of constitutional right subject in every dumb law, eventually the courts are going to render themselves about as useless as they are rendering the legislative proccess.

By: JackLewis.net

JackLewis.net — Tue, 15 Mar 2005 15:22:43 +0000

Give 'em hell, Tony
Supreme Court Justice Antonin Scalia vents about the problem most of us also see as destroying the nation: In a...