Over at the VC, David Bernstein has a quick analysis of the Raich decision that includes this statement:
Justice Scalia's concurrence, unlike Justice Thomas's dissent, does not address the original meaning of the Commerce Clause. This reflects a pattern with Scalia, apparent also in his affirmative action, First Amendment, and other opinions: he is much more likely to resort to originalist arguments when they can be used to undermine Warren Court precedents that conflict with his deeply held moral and political views than when such arguments would either undermine his political views or challenge precedents that are not on the social conservative (tempered, as in First Amendment cases, by Scalia's academic elitist solicitude (which I share) for freedom of expression) "hit list."
Bingo. For Scalia, far too often, originalism is a useful both as rhetorical strategy and as a tool with which to beat up those he disagrees with. But when the logical outcome of originalism is contrary to his goals, originalism goes right out the window. Thomas is far more consistent.
- Log in to post comments
More like this
David Bernstein and Randy Barnett have interesting posts up at Volokh about the growing split among conservative originalists. Barnett's post came first and he notes that when conservatives today invoke the idea of "judicial restraint" in opposition to judges "legislating from the bench", they are…
Jay at STACLU has a post that is little more than a rote recitation of all the favorite conservative catchphrases about judicial nominations. It makes a good starting point for discussing the fact that the typical rhetoric we hear from conservatives on constitutional law references things that…
Publius, of Legal Fiction, has written an entry about the uproar over Sen. Reid's statement that Clarence Thomas has been an "embarrassment to the court". It's worth reading. While he's harsher on Thomas than I would be, he does hit on an important distinction in how one can judge a judicial…
Jack Balkin has a couple of fascinating essays on how easily originalism is used to justify a particular result, an argument I have long made myself. I'm not an enemy of originalism, nor am I a "living constitutionalist", and I think that both original intent and original understanding or original…
And that's exactly what "judicial activism" should be defined as. When one's ideology takes primacy over the rule of law.