January 10, 2007
Antonin Scalia: The Best Friend of Mexican Criminals on the SCOTUS
You know it's ( sometimes lone) dissents like this that always made me clearly prefer Justice Scalia to the late Chief Justice. Sure, there's a good level of playground "I'm so right and you're so wrong" about his tone. But his willingness to stick his neck out on principle and precision like this has led him to occasionally be "right" on cases in which his brethern might not be (I'm not stating that's true or not in this case).
Posted by armand at January 10, 2007 10:59 AM
| Posted to Law and the Courts
i disagree that justice scalia is all that likely to stick his neck out on principle, as you put it. too many reviews of his decisions to count have pointed out his uncanny abilities to leverage his "principles" to reach outcomes that appear salutary to his manifest big-c Conservative worldview, often to the detriment to his jurisprudential coherence over multiple cases.
for dogged adherence to principle come what may, believe it or not, i much prefer justice thomas (who was in dissent in Raich v. Gonzalez (medical marijuana), among others). i think as his positions mount and morph, it has become very hard to identify a robust principle of any sort that holds clear throughout scalia's jurisprudence.
I don't disagree with your view exactly. Sure, Thomas does this too (not surprising, since he and Scalia and Stevens are the 3 most common lone dissenters on the current Court), maybe more often, and sure, Scalia isn't really all that consistent in putting his principles ahead of his politics. But he does sometimes do it (most famously I guess in the flag burning case), and the fact that he does it all makes him preferable (to me) than some right-wing justice who SAYS they are a textualist or whatever, but really doesn't ever depart from their political/ideological orthodoxy, regardless of the facts at issue - and are seemingly more likely to enforce it depending on who the parties are and who they tend to fit the justice's usual political/ideological position.
and you're suggesting rehnquist was like that? because on the current court, reservations about alito preserved for later consideration, i think scalia's the worst of the lot on this front, unless stevens or ginsburg is even worse on the other side of the spectrum.
Well I had Rehnquist in mind, yeah. It was rather remarkable that whatever the issue or context he (almost) always found a way to the "conservative" result (those big Court databases that whoever it is compiles have him as clearly the most "conservative" justice of the las several decades; though I have some issues with how they code liberal and conservative).
I haven't noticed a similar level of ideological (as opposed to legal principle) consistency in Ginsburg, and certainly not in Stevens.
I guess the whole point of this is just that while for many years everybody and his brother has ranted against Scalia as being the "principled when it suits his politics" justice, I'd always thought that Scalia wasn't really the worst at that, it was the old CJ. But I suppose perhaps Scalia is the 2nd worst at it.
I think it's too early to tell about the new two. Though I have yet to see anything that clearly shows they won't be to the right of Scalia.