SULLY ON SCALIA

Andrew Sullivan argues Antonin Scalia lacks the proper temperament to be a judge:

What troubles me about Antonin Scalia is not so much the substance of his views (although I share very few of them) but the angry, sarcastic, bitter tone of his judgments. David Broder had a similar take last week. Part of what it takes to be a judge, in my mind, is a certain indifference to passionate advocacy, a sense of moderation, and prudence. If someone cares as passionately as Scalia does about the moral issues in what he has called the “culture war,” and if he isn’t even interested in moderating these passions in his judicial rulings, then it strikes me that he is not acting as a justice should act: with dignity, care, distance, and respect for alternative arguments. It’s the tone that’s off. It can be amusing, bracing, shocking, interesting; but it certainly isn’t a judicial tone.

I disagree with Sully on this one, as regular readers might expect. I read Scalia’s tone as an indication of frustration with his colleagues’ willingness to flout the Constitution and judicial precedent to arrive at a political outcome they desire. Scalia often rules in ways that result in policy outcomes he dislikes but that nonetheless comport with his understanding of the law and the proper role of judges in it. To me, that’s the essence of judicial temperament.

FILED UNDER: Law and the Courts
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Paul says:

    Sully lets his crusade impare his judgement.

  2. Kevin Whited says:

    Ah, yes, Sullivan advising Scalia on letting specific political passions *ahem, pardon that term, but I couldn’t help myself* overwhelm one’s good judgment. He’s surely one to advise in that area.

  3. bryan says:

    I would like to ask what some other “activist” justices have said in their dissents (or majority opinions for that matter) that is “less than judicial.” I’m curious, for instance, about the opinions of Justice Thurgood Marshall?

    I would wager that there’s quite a bit of battling that goes on in dissenting opinions.

  4. James Joyner says:

    Scalia is somewhat more sarcastic than the norm, I’d wager. But, yes, dissenting opinons are almost without fail more lively and biting than the majority opinon.