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Wednesday, October 1, 2008

Reagan Appointees Criticize Scalia Activism

Following the June release of the Supreme Court’s decision in District of Columbia v. Heller, Alliance for Justice noted that the five conservative justices who signed onto the majority opinion ignored precedent and decided the case solely on the basis of conservative ideology. We noted the hypocrisy of the opinion, written by Justice Antonin Scalia, probably the justice most critical of so-called “judicial activism,” which set aside almost 200 years of precedent to reinterpret the Second Amendment as a guarantee of individual gun ownership. Now, it seems two prominent conservative judges share our view.

According to an Associated Press article, Fourth Circuit judge J. Harvie Wilkinson and Seventh Circuit Judge Richard Posner, both Reagan appointees and noted conservative legal scholars, have publicly criticized Justice Scalia “for engaging in the same sort of judicial activism he regularly disdains.” Judge Wilkinson, who President Bush considered for a Supreme Court appointment in 2005, suggests that “the 5-4 decision in Heller…would have come out differently if he had been chosen for the court.” Judge Posner wrote in an article in The New Republic last month that “[t]he decision…is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology.”

We’re glad that the irony isn’t lost on everybody. Justice Scalia frequently touts his doctrine of “originalism,” repeating it to University of Minnesota students just last week. Yet, as we’ve seen time and again, he is more than willing to set aside his originalist principles if it means strengthening conservative doctrine. Maybe now we can move past the debate over code-words like “judicial activists” and “strict constructionists.” But, we won’t be holding our breath.

3 comments:

R Linder said...

Scalia has grown more and more incautious about masking the ideological basis for his decision making, and, as the article points out, at this point it is nakedly obvious. But to close watchers of Scalia and the court it has been evident for well over a decade.

I remember having a discussion with my dissertation adviser during the early 90s about this very subject and making arguments for Scalia's judicial activism even then. It was just cloaked in a thicker velvet glove, but no less real.

Mark said...

I heard Scalia from a 60 minutes podcast. His trumpeting of originalism and his adherence to that philosophy was sickening. He spews garbage and thinks that because he in a Supreme that it has validity. He is a pompous jerk. When someone points out Bush v Gore, he says "get over it" When someone points out that his conservative buddies overturn more laws that the "judicial activist" he says that it is the fault of "activist" legislatures. How absurd! Furthermore, in defending his bizarre originalism, he claims that if you want to have privacy rights or some other right that the courts have granted without legality, go ahead and have your legislature pass a law. What, so his conservative buddies can overturn the "activist" legislatures laws? The adults should take over the Supreme Court and send Scalia back to his cave.

tony said...

thank goodness that "conservatism" is finally and irrevocably debunked.
No more of that nonsense for future generations.
And Ronnie Raygun meant medicare when he gave that freedom speech , as in we will speak of freedom lost once the poor can go to the doctor...finally we can go back to land of the free and home of the brave.