Friday, June 15, 2012

Thou shalt not impeach the integrity of the Supreme Court's motives

I'm not sure what I was expecting when I clicked on the NY Times' short article about Scalia's new book.  I should have known it would turn out to be the kind of legal journalism I despise.
Justice Antonin Scalia picked the right moment, then, to deliver more than 500 pages of hints, in a book to be published next week. He wrote it with Bryan A. Garner, and it is an overview and summation of the justice’s approach to making sense of statutes and the Constitution. 
It is also studded with telling asides and intimations about past and future decisions. 
Justice Scalia writes, for instance, that he has little use for a central precedent the Obama administration has cited to justify the health care law under the Constitution’s commerce clause, Wickard v. Filburn. 
In that 1942 decision, Justice Scalia writes, the Supreme Court “expanded the Commerce Clause beyond all reason” by ruling that “a farmer’s cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause.” 
That position is good evidence, particularly when coupled with Justice Scalia’s skeptical questioning at the arguments in the health care case in March, that the administration will not capture his vote.
Can't we all acknowledge that Scalia's objection to the health care law comes from party-driven ideology first and his detailed analysis of Supreme Court precedent second?  When we pretend that the justices are acting in good faith, we immunize their decisions from criticism.  It's the Curse of the Law Student: when you can't question the other side's integrity without causing fainting fits, every argument always ends, somehow, delving deep into the utterly pointless minutiae of constitutional law.  At which point everyone who isn't completely myopic stops caring. Whoever wins, we lose.

In reality, judges who decide on highly political issues are usually relying on the same highly political considerations as the rest of us.  They shouldn't be insulated from political criticism in the process.

The Times writer probably realizes this too--even a Supreme Court reporter couldn't fail to miss the ridiculous and convenient inconsistencies in some of the positions Scalia takes in the book:
Justice Scalia acknowledges one powerful limit on his commitment to textualism. Court precedents must ordinarily be respected even when they were based on misguided readings of the relevant texts, he writes, under the doctrine of “stare decisis,” which is (according to Mr. Garner’s “Dictionary of Modern Legal Usage”) Latin for “to stand by things decided.” 
But there are exceptions to the doctrine, Justice Scalia writes. For instance, he says, “the Supreme Court should not give stare decisis effect to Roe v. Wade,” the 1973 decision that identified a constitutional right to abortion.
But the strangeness goes mostly unremarked upon, because it would impolitic to suggest that the Sacred Nine think anything like normal human beings.

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