June 28, 2007

Scalia mocks minimalism.

Linda Greenhouse shows where Justice Scalia has recently expressed his antagonism toward the more moderate style of the Chief Justice.

In the issue ads case (Wisconsin Right to Life): "This faux judicial restraint is judicial obfuscation."

In Freedom From Religion, the case that restricted standing to use the Establishment Clause to challenge Executive Branch decisions: "Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions."

But the liberal lawprofs consulted by Greenhouse don't seem too impressed by what she wants to portray as a rift among conservatives:
As Prof. Jack M. Balkin of Yale Law School wrote on his blog, Balkinization, “It is the difference between bomb throwing and dismantling.”

... Prof. Erwin Chemerinsky of Duke Law School observed that Chief Justice Roberts, who has taken the conservative position in every ideologically divided case this term, could hardly be described as less conservative than Justice Scalia.

Prof. Mark Tushnet of Harvard Law School, whose recent book, “A Court Divided,” explored the differences among Republican-appointed members of the Rehnquist court, said that “a consolidated conservative majority, not a divided conservative majority,” was now in charge.
I tend to agree with this. Roberts (with Alito) and Scalia (with Thomas) are not at cross purposes. How shocking it would have been if the Court in those two cases gone ahead with the overruling that Scalia recommended. What a gift it would have been to the Democratic presidential candidates, who would have impressive new substance for scaring people about what another Republican President would do to the Court.


J.P. said...

Greenhouse wants to show us that Scalia is still keeping up with his antics while also agreeing with Roberts' results at almost every turn.

In order to do that, she quotes some of Scalia's boilerplate barbs (Roberts decision is "disingenuous," etc.), and then quotes law profs noting that they don't disagree on the results.

When one understands what Greenhouse is trying to do with the article, her quotes support her thesis rather than undermine it.

Simon said...

As notable as what those profs say is who Greenhouse quotes: Erwin Chemerinsky. Walter Dellinger. Mark Tushnet. Jack Balkin. Not exactly people who are at odds with Greenhouse's theory. Indeed, the sole comment by anyone who couldn't be described as a legal liberal at best and a crit at worst is from Rick Garnett, who provides a sensible enough assesment that Greenhouse squirrels away at the end.

Lamppost journalism, Ann. Lamppost journalism.

And then, of course, there's good old fashioned misrepresentation journalism, such as Greenhouse's assertion that Justice Scalia "once accused Justice Sandra Day O’Connor of holding 'irrational' views that 'cannot be taken seriously.'" This is carefully phrased to suggest that Scalia was speaking generally of Justice O'Connor's views, rather than of specific suggestions advanced in an opinion, while avoiding an outright misquote. What Scalia's Webster concurrence actually said couldn't be taken seriously was specifically "Justice O'Connor's assertion that a ‘fundamental rule of judicial restraint' requires us to avoid reconsidering Roe," (citations omitted) and what he actually called "irrational" was "the new concept that Justice O'Connor introduces into the law in order to achieve her result, the notion of a State's 'interest in potential life when viability is possible.'" Why did Scalia think that was irrational? Because "'viability' means the mere possibility (not the certainty) of survivability outside the womb, 'possible viability' must mean the possibility of a possibility of survivability outside the womb. Perhaps our next opinion will expand the third trimester into the second even further, by approving state action designed to take account of 'the chance of possible viability.'" Naturally, Greenhouse neither names the case nor links to it, meaning that readers who don't already know the case she's talking about, which is to say, those who don't know how blatant a misrepresentation she's slipped past them, are left with little option but to trust Greenhouse's assertion.

J.P. said...

This is carefully phrased to suggest that Scalia was speaking generally of Justice O'Connor's views

That's a strange reading. Given that the whole piece was about Scalia's opinions, it'd take a willful misreading to think that the passage referred to anything but an opinion.

Not exactly people who are at odds with Greenhouse's theory.

The theory, such as it is, is non-controversial: Scalia's textualism is distinct, and in tension with, the minimalism of Roberts and Alito. Garnett's comments are in full accord with this fairly obvious assessment.