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An Odd Test:

According to the New York Times, Sen. Joe Biden (D-Del.) said:

My question is, Is Justice Roberts going to be a Scalia, a Rehnquist or maybe a Kennedy? If I think he's going to be a Justice Scalia, who I like personally very much, I vote no. If I think he's going to be a Kennedy, I vote yes. If I think he's going to be a Rehnquist, I probably vote yes because it won't change anything.

I'm not sure I understand how this reasoning works. I can see why Sen. Biden might vote for a moderate conservative like Kennedy rather than for a solid conservative like Scalia or Rehnquist. But given that Scalia and Rehnquist are very near each other on their bottom lines -- Scalia is a little to the right of Rehnquist on a few things, and Rehnquist is a little to the right of Scalia on a few other things, but on balance they are very close -- why would Biden vote for another Rehnquist but not for another Scalia?

I can imagine some law-and-order hard-liners who might prefer Rehnquist to Scalia, since Scalia has on some occasions taken a broader view of some criminal procedure rights than Rehnquist has, and in cases in which Scalia's vote counted; in nearly all the criminal procedure cases where Scalia has voted to the right of Rehnquist, Rehnquist was not the swing vote. But I have no reason to think that Sen. Biden is bothered by Scalia because Scalia is too soft on crime.

Or is this just a "speak no ill of the dead" convention at work here? Yet surely that would have been as well served by just avoiding the Rehnquist comparison. So I'm pretty puzzled by this.

SimonD (www):
I have a head cold, so this may not be entirely lucid, but hopefully the point will be adequately transmitted...

I don't know, of course, but perhaps it's because Scalia rejects substantive due process and Rehnquist (to my knowledge) never really did. Scalia is clearly more of an iconoclast than Rehnquist (which is precisely why he inspires such strong reactions, both for him and against him), but as I discussed the other day on Althouse, and earlier today here, Scalia doesn't just challenge the sort of outcomes that Biden wants, Scalia's judicial philosophy challenges the entire underlying legitimacy of the process at which those outcomes are reached.

What's struck me as odd is that the Dems on the committee have questioned and judged seemingly on nothing other than outcomes. The idea that process matters more than outcome is seemingly alien to them, and thus no doubt seems extraordinarily radical to them - not to mention extremely dangerous, because the process Scalia advocates would cut them off on a number of fronts.

So if they're talking about a nominee who they simply disagree with on the outcomes, they can simply say "well, we want a judge who FEELS differently, who reaches other outcomes", but when you're talking about Scalia, you're talking about someone who rejects the entire premise that what kind of outcomes a judge wants is relevant.

I hope that made some sort of sense...It seemed a coherent thought when I started. ;)
9.16.2005 8:33pm
Mark H.:
It seems an exercise in futility to try and apply logic to Biden's thinking process. Yes, he does land a few reasonable and logical points from time to time (perhaps one out of twenty over the past 33 years), but it's entirely a haphazard function of catch as catch can. So you shouldn't feel too puzzled at all.
9.16.2005 8:38pm
Stephen Kaus:
As a paleoliberal, it pains me to say that (1) Biden would be an even worse candidate than Kerry and (2) these gasbags have learned nothing since they let Clarence Thomas off the hook by asking him nothing substantive and overly sanitizing their rare prime time appearance 14 years ago. Rehnquist pretended to care about the process as he reached the same conclusions as Scalia, which seems to have fooled Biden.
9.16.2005 8:48pm
LiquidLatex (mail):
Get used to Biden as he will likely be your next president. /derail over

In the 'pays moderate attention to legal developments but is no by means an expert' section that I and others are in, Scalia is seen as much more of a far-right extremist than Rehnquist was. Scalia is flat out evil to many. Rehnquist at a glance seems much more reasonable on many issues that are 'more important than' other issues that Scalia in depthly is further to the left of.

For example, if you were to run a poll over at DailyKos of only Rehnquist and Scalia, Rehnquist would likely get more favorable mentions of his position on a few cases. I would be surprised at anything but a fraction of people thinking Scalia was the 'least worst' of the two.
9.16.2005 8:55pm
SimonD (www):
Scalia is flat out evil to many.
Something that I continue to regard as utterly preposterous, and evidence that the vast majority of non-legal people (I mean, the Kossacks and their ilk, not people like Ronald Dworkin who have actual and cognizable philosophical differences with him) who disagree with Scalia simply know nothing about his jurisprudence. They are people like Joe Biden who are only concerned with results, not how those results are reached; people who believe the Federal government either has, or should have, plenary powers. Which is precisely why Scalia is so profoundly dangerous to liberals, and must therefore be demonized, because if the public at large stopped believing - even tacitly - in this result-oriented view of the courts, liberals and conservatives alike would have to win elections to push their agenda, rather than doing it through the courts.
9.16.2005 9:08pm
Glenn W Bowen (mail):
Biden said that because he had to, and can, say something; I would guess most of his performance was due to political debt, and, campaigning before the camera. He knew Roberts was a shoo-in, so he used the hearings as a primary speech on the record. Biden's hot-headedness and delivery are the entities of of a man who has the power of the congress with which to intimidate. This time it only revealed the buffoonishness of a man who stated "Yeah, go ahead and continue not answering the question."

My comments seem to drift off the topic, but I find them a viable response to what Prof. Volokh has questioned.
9.16.2005 9:15pm
Lab:
His dissent in Lawrence is simply odious.

It is only natural that he is disliked by many pro-rights groups.
9.16.2005 9:47pm
Stephen Kaus:
He is flat out evil to me. He does not believe that the Constitution should be interpreted as an evolving document. He would not have voted for Brown v. Board of Education. He would have ruled the Emancipation Proclamation unconstitutional. He advances an appalling combination of disdain of both government and individual rights at the same time. At the same time, Scalia is rude and arrogant. What's not to like?

If Roberts had testified in accordance with Scalia's views, his path would not be nearly so lubricated.
9.16.2005 9:57pm
Sha_kri:
All this debate needs to be geared to what exactly the role/function/purpose is of the Supreme Court.

To me it seems clear that it is to interpret the meaning of the Constitution and apply that. Outside of common law, the Judicial branch should not be making or changing the law. I am no fundamentalist and know its going to happen a little, but the Judicial branch is just way over abusing their authority.

If the Judges were held to their oath to uphold the Constitution, then it would not matter very much if they were liberal or conservative....professionalism would be the appropriate issue.
9.16.2005 10:00pm
Sha_kri:
"He does not believe that the Constitution should be interpreted as an evolving document."

What is the source of this professed power? Where does it come from? Where does it say that Justices can change the law to their personal liking?
9.16.2005 10:05pm
magoo (mail):
I had the same reaction to Biden's odd differentiation, and I did immediately attribute it to the Chief's recent death. First they canonize O'Connor, and now the Chief. It's all politics. Biden knows most people's sympathies are with the Chief and his family (Dershowitz being a notable exception), and so Biden panders.

Professor Volokh, you might consider a post/thread on whether a lawyer violates the obligation to promote public confidence in the legal system by saying things like "Justice xx is evil," and also whether that ethical canon, if so applied, would violate the 1st Amendment.
9.16.2005 10:37pm
DJ (mail):
Actually, Stephen Kaus, Scalia has affirmatively stated that he would have joined the Court in Brown v. Board (or, as you put it, voted "for Brown"). Is he lying?
9.16.2005 10:41pm
frankcross (mail):
Scalia has a few prominent non-conservative decisions, but in the overall count, he is clearly more conservative than Rehnquist has been.
9.16.2005 10:44pm
Daniel Chapman (mail):
My 1L constitutional law professor began the first week by saying "Scalia will be the villain in this class... because I think class is more fun when there's a villain, and I don't agree with Scalia."

It's all about writing style, in my opinion
9.16.2005 10:49pm
SimonD (www):
Stephen:
He does not believe that the Constitution should be interpreted as an evolving document.
No he doesn't, and neither do quite a substantial of other very smart people, starting with the founding generation. Jefferson, for example, is widely reported to suggest the need for a new constitution every thirty years, toaccomodate the changing needs of the people. If you think the constitution's meaning should change with society, why would there be any need? In any instance, I don't think it should be interpreted as a living document because that would render as a minor aristocracy whichever subgroup is charged with the interpretation of what a document that governs out lives means at any given time. I dont think taht government by platonic guardian is a good idea; your view is evidently different, and I simply disagree. That doesn't mean that I think you're evil, I just think you're wrong. You evidently have a different way of thinking about people who disagree with you.

He would not have voted for Brown v. Board of Education.
Really? Well, I say Scalia would have voted for Brown, and I base that statement on this:
"The customary invocation of Brown as demonstrating the dangerous consequences of this principle is unsupportable. I argue for the role of tradition in giving content only to ambiguous constitutional text; no tradition can supersede the Constitution. In my view, the Fourteenth Amendment's requirement of "equal protection of the laws," combined with the Thirteenth Amendment's abolition of the institution of black slavery, leaves no room for doubt that laws treating people differently because of their race are invalid. Moreover, even if one does not regard the Fourteenth Amendment as crystal clear on this point, a tradition of unchallenged validity did not exist with respect to the practice in Brown. To the contrary, in the 19th century, the principle of "separate-but-equal" had been vigorously opposed on constitutional grounds, litigated up to this Court, and upheld only over the dissent of one of our historically most respected Justices." (Rutan v. Republican Party of Illinois, 497 U.S. 62, 96 n.1) (Scalia, J., dissenting) (Internal citations removed)


So I say you're wrong, and if you say Scalia would have voted against Brown, on what do you base your statement? Likewise:
He would have ruled the Emancipation Proclamation unconstitutional.
Please provide evidence for this statement that is slightly more pursuasive than
"he is evil" or "he is rude". I wrote above that the people who dislike Scalia have no clue about his jurisprudence, and if your intention was to prove the point, I think you're doing a good job so far.
9.16.2005 10:53pm
Alex Robbins (mail):
I'm just a law student, so maybe I'm missing something here, but I don't understand how Scalia is to the right of (the late) Renquist. Can anyone help me out with some examples? Without doing a Lexis search or anything, here's what I get off the top of my head (apologies for any mistakes):

Renquist left of Scalia on: can't think of anything categorically right/left

Scalia left of Renquist on:
1) Overturning large damage verdicts for plaintiffs
2) Military detention inside US
3) Infrared police snooping of house without warrant
4) Flag burning
5) Sentencing guidelines

Unclear issues where left/right lines are blurred (so could arguably go either way):
1) Government taking property from poor black people and giving it to big corporations
2) Outlawing weed

Okay, I understand that Scalia can be a lot more combative (some would say "vitriolic") than Renquist. But anyone can be vitriolic. Moderates, so long as they have strong opinions all over the places (if you define moderates that way), certainly can be. But what substantive things has Scalia done to earn him the "more conservative" label -- after all, both Renquist and Scalia would overturn Roe, both voted for Bush in the 2000 election case, and both were against Lawrence.

So what's up?
9.16.2005 10:54pm
magoo (mail):
Prof. Cross writes: "Scalia has a few prominent non-conservative decisions, but in the overall count, he is clearly more conservative than Rehnquist has been."

The issue raised by the post is not whether he's more conservative in the results he reaches. The issue is whether he is so much more conservative or radical in result or apprach that it makes sense for Biden to say that a Scalia-esque nominee is disqualified while a Rehnquist-esque nominee is not. The only reasonable answer to that question is no, IMHO.
9.16.2005 11:04pm
Eric Muller (www):
I think you're reading Biden far too hard, Eugene, looking for him to make sense when what he's making is politics.

All he's doing now is positioning himself to be able to vote for Roberts, so that he can more plausibly and forcefully vote against the next nominee. So he needs to have a reason to vote for Roberts, and saying that he's like Rehnquist and won't change anything does the trick for him.

My guess is that most other Democrats, except perhaps Kennedy and Schumer, will end up doing the same thing.

I think it's a mistake to look for much in the way of sense from anything the Senate Democrats say about Roberts at this point. It's all about the nomination to come.
9.16.2005 11:09pm
Stephen Kaus:
The emancipation proclamation was in 1863. The 13th Amendment was ratified in December 1865. I guess it depends on how long it took the case to reach Scalia. As for Brown, that's right, I don't believe the man. Neither did Justice Stevens. Of course, in 1990 he is going to say he would have voted for Brown.

As for the role of the Court, I am not going to cure you all of your views on this comments page. In my view, it is an important function of the Court to prevent the minority and the powerless from being unfairly overridden by an intolerant majority or the powerful. I believe that the Constitution generally has the tools with which this can be done and that the idea that there is an objectively correct decision is often nonsense. We thought we knew what the commerce clause meant when I was in law school, but we apparently were wrong. In this sense, Roberts appears to be an improvement over Rehnquist.

Also, if he is on the Court for 30 years, I suspect he will hire an African-American law clerk.
9.16.2005 11:21pm
SimonD (www):
In my view, it is an important function of the Court to prevent the minority and the powerless from being unfairly overridden by an intolerant majority or the powerful.
Which I suppose explains why Scalia voted AGAINST the court's living constitution bloc in Kelo? The reality is - and this was one of the things Roberts said which I actually liked - if the constitution is on the little guy's side, the little guy wins, and if the constitution is on the big guy's side, the big guy wins. Period. It is not a legal defense to say that you are marginalized and powerless, and it is within the purview of the Congress - not the courts - to deal with questions of social justice.

Only when a law comes into conflict with what is actually in the constitution should it be struck down, not because it offends some Judge's notion of what's fair. Did you just skip Lochner v. New York and that whole period or something? Or do you think that the only thing that matters is results, and anything goes sa long as you get the results you want? Problem with that theory is, if you give Judges the power to strike down laws on no basis other than because you don't like them, you'd better hope that you get Judges who think like you!

And if your argument against Scalia is really as extensive as "I don't believe him", "he's rude", "he's evil", I don't think it is the non-anti-Scalia faction which needs "curing".
9.16.2005 11:35pm
Roy Lofquist (mail):
Dear Sirs,

United States Senators, particularly those who hold lifetime sinecures, live in a bubble. Nobody dares to disagree with them. Certainly not anyone who sits in the chair. Certainly not their staff. Their most inane blatherings are treated with great respect by their colleagues and sycophants. This accounts for the incoherent statements by Kerry and most other Senators who run for President.

Regards,
Roy
9.16.2005 11:35pm
Alex Robbins (mail):
Correction on my last -- Scalia and Renquist both dissented in Kelo (somewhat playfully described as "Government taking property from poor black people and giving it to big corporations"). But the question still stands, for anyone out there who thinks Scalia is more conservative than Renquist (was): why?
9.17.2005 12:04am
wilson (mail):
"Jefferson, for example, is widely reported to suggest the need for a new constitution every thirty years" Jefferson as framer? I thought he was in France.

Gripes with Scalia: 1) Too political or theoretical. Preaches a half-baked theory of originalism, rather than "calling balls and strikes." Be a professor or a politician if you want to propound and defend overarching theories. Otherwise, be traditionally judicial. 2) Insensitive to conflict of interest re Cheney.
9.17.2005 12:22am
John S (mail):
Scalia is/was much more willing to turn precedent on its head than the late chief. The Miranda reaffirmation is a classic example.
9.17.2005 12:29am
John S (mail):
At least in Kelo the property owners received a fair market valuation that some unfortunate folks in Texas didn't when they were lowballed by government to pave the way for a new baseball stadium.
9.17.2005 12:32am
Simon (391563) (mail) (www):
As John S. mentions, I think one potential explanation is CJ Rehnquist's opinions in Hibbs and Dickerson. Not sure that is one that Biden relies on, but sets up an interesting argument about whether those cases or Hamdi are more salient.
9.17.2005 12:48am
Cornellian (mail):
I think what Biden doesn't like about Scalia as compared to Rehnquist is Scalia's tendency towards vitriolic bombast in place of legal reasoning. Thomas is a principled originalist. Scalia is an originalist until he doesn't like the result, then originalism is casually tossed aside (e.g. Raich v. Ashcroft, one of many examples). Rehnquist had a due respect for those who disagreed with him - a far cry from Scalia's contempt and disdain for those who disagree with him. If you're going to switch your judicial philosophy from one case to the next to get the result you like, then you're really not in a position to complain all that much that others are doing the same.
9.17.2005 1:00am
Cornellian (mail):
I wish someone had told Scalia that before he decided that one person growing marijuana in her backyard for her own personal, non-commercial use constituted interstate commerce. As I said above, Scalia is an originalist only when it reaches a result he likes.

Only when a law comes into conflict with what is actually in the constitution should it be struck down, not because it offends some Judge's notion of what's fair. Did you just skip Lochner v. New York and that whole period or something? Or do you think that the only thing that matters is results, and anything goes sa long as you get the results you want? Problem with that theory is, if you give Judges the power to strike down laws on no basis other than because you don't like them, you'd better hope that you get Judges who think like you!
9.17.2005 1:05am
James B. Shearer:
Rehnquist was somewhat more liberal than Scalia and Thomas. Consider the analysis of court voting patterns by Lawrence Sirovich. Compare how often justices differed from Ginsburg. O'Connor(.25214), Kennedy(.2671), Rehnquist(.30769), Thomas(.36572) and Scalia(.36966). By this measure Rehnquist was intermediate between "moderate conservatives", O'Connor and Kennedy, and "solid conservatives", Thomas and Scalia. Also of course Rehnquist was less abrasive than Scalia.
9.17.2005 1:19am
arbitraryaardvark (mail) (www):
In kelo the property owners have yet to receive fair compensation.
As a justice, Rehnquist voted and wrote conservatively. As the chief, unless the insiders know more than i do, he was fair and balanced in running the court. I think Biden thinks that Scalia or Thomas as chief would try to be revolutionaries and go in interesting new directions, where Roberts seems pretty comfortable with the status quo, which might just be an act. I base this partly on Scalia's speeches, partly on his dissents. There doesn't seem to a strong chance Roberts plans to pull together a gang of five and start running the country to suit his own preferences. Let's check back on that in 5 or 10 years.
9.17.2005 1:22am
Jason Fliegel (mail):
I don't think Senator Biden was trying to make a nuanced legal analysis. I think he was trying to satisfy the Democratic base that he was not simply being a rubber stamp ("If I think he's going to be a Justice Scalia ... I vote no.") while leaving himself enough room to vote to confirm Judge Roberts, thereby demonstrating that he's willing to be bipartisan and reach across the aisle.
9.17.2005 1:52am
SimonD (www):
Scalia is/was much more willing to turn precedent on its head than the late chief. The Miranda reaffirmation is a classic example.
I think Dickerson was just a case of the Chief voting tactically. Rehnquist could either vote for the result and write the opinion himself, or he could cote against, and face an opinion written by Stevens. Unlike Scalia, Rehnquist did not see victory and loss as monolithic; there were degrees of failure which were more acceptable to him than others. Regrettably, Nino has not learned this lesson.
Scalia is an originalist until he doesn't like the result, then originalism is casually tossed aside (e.g. Raich v. Ashcroft)
I will defend Scalia's result in Raich, even though I don't agree with it. Scalia'as argument was basically that the necessary and proper clause has a wide scope to allow Federal action to regulate the interstate market for drugs. I don't agree with his concurrence, but I don't think that it necessarily deserves the demanding for excommunication that were hurled in Scalia's direction after the judgement was handed down, and I don't think that the result is impossible to justify within the Scalian rubric.
9.17.2005 2:05am
SimonD (www):
of course Rehnquist was less abrasive than Scalia.
You say abrasive, I say direct. Some say he's rude, I say he's blunt. I appreciate that in a chap.
9.17.2005 2:07am
stealthlawprof (mail) (www):
There is a lot of danger in overestimating Biden's intelligence with all of this. SimonD's original post may be the answer — Biden might realize that Rehnquist's minimal (but still extant) version of substantive due process was not as dangerous to Biden's policy expectations for the Court as Scalia's outright rejection of substantive due process. A less sophisticated reason might be that Biden simply senses less long-term danger from Rehnquist's pragmatic decisions than Scalia's prose that is exquisitely written and far-more-theoretical (and thus perhaps more likely to influence future cases). Finally, others may be correct. Biden is not smart enough for any of this; he just knows that his base thinks Scalia is the devil incarnate, and he figures he can score points by assuring the base of his opposition to the devil.
9.17.2005 2:55am
DJK:
While I respect the Sen Biden's comment might come from the man as a lawyer, I think it comes from the man as politician. In other words, put aside the legal reasoning. Justice Scalia has become a bogeyman for anyone left of center.

Yes, some of the reason is the substance of his opinions. To cite the extreme, if his jurispridence matched Justice Ginsberg the left would be fine with him even though he was appointed by the arch enemy (see Justice Stevens, e.g.).

But substance is only part of the equation in politics. One would have to be egregiously vain to think that you could identify all the reasons someone achieves the status that Scalia has, but I think some of the less rational reasons include the tenor of his wiriting, the fact that he seems not to be beholden to an establishment in that his votes can't be easily determined by knowing whose ox will be gored, his looks (yes I know it's superficial but this is politics) . . .

Scalia is simply the guy the left loves to hate and Rhenquist isn't (so much). I hate to spoil the fun, but really, don't over analyze this one.
9.17.2005 3:25am
randal (mail):
I think Biden's just setting up the politics for nominee number two. The implication of his willingness to replace Rehnquist with Rehnquist-prime is that he expects an O'Connor-prime to replace O'Connor.
9.17.2005 5:32am
Rhadamanthus (mail):
I think there's another point in drawing an analogy between Roberts and any current members. Even Kennedy's greatest supporter, and I am not one of these, would not call him a leader on the court. However Justice Scalia and Associate Justice Rehnquist were. When he became Chief I felt Rehnquist lost some of his conservative leadership, probably due to the administrative work and the need to be the leader that the public see.

My point is this. Will Roberts be a leader like Scalia or a follower like Kennedy? My original belief was that he will be a Kennedy type who will be reluctant to break new ground and would identify himself not as a conservative but as a middle of the road justice. Suc a character in POTUS eyes will make a great CJ because nothing will be lost in leadership, he can now try and appoint someone who can add to Scalia's leadership and groud-breaking efforts.
9.17.2005 6:09am
randal (mail):
I've never thought of Scalia as a leader. I think the rest of the court thinks he's kindof ridiculous and abrasive. Leadership (in adult life) requires some amount of diplomacy and an ability to listen. Scotus isn't boot camp.

You seem to be confusing leadership with tenacity. They're not mutually exclusive, but Scalia lacks one. I actually think Roberts will be a tenacious leader. But probably not in your eyes, which only count ideology as a valid source of strength.
9.17.2005 8:40am
Pete Freans (mail):
If you are looking for groundbreaking legal analysis from Sen. Biden, you may be disappointed. While his blue-collar style seems more suited in the House of Representatives, I guess that is what makes him unique among his senatorial colleagues. To his credit, he articulates his views in a manner that his nonlawyer constitutents can easily understand and digest. For that reason, I have respect for him. In addition, his state has annually saved me hundred of dollars in tax-free shopping so I am reluctant to criticize.
9.17.2005 10:02am
Brad (mail):
I know some of the previous commenters have made this same point in different ways, but I believe Biden made his point because Scalia is generally seen as much more conservative than Rhenquist by the general public, who knows much less about the actual jurisprudence of these judges than those legal eagles among us who are commenting here at the VC. I realize that some among us may quibble over whether the perceived difference is actually a difference in practice, but I don't see how that would actually matter to Biden when he made the statement. He was clearly using his statement to appeal to his base and their biases, which is exactly what we should expect a politician to do.
9.17.2005 10:48am
Cornellian (mail):
Yes, that was Scalia's argument, and my point was why is there not a single reference to original intent in Scalia's decision, not a single reference to what the framers of the interstate commerce clause or the necessary and proper clause thought, or whether the legislation in Raich would have been considered interstate commerce as that term would have been generally understood at the time of the Constitution's enactment? He selectively employs original intent when it gets the results he likes, and ignores it when, as in this case, it doesn't lead to a result he likes. He's certainly not the only judge on the Supreme Court to do so, but given the vitriol of his decisions when others depart from original intent, it looks worse when he does it.

"I will defend Scalia's result in Raich, even though I don't agree with it. Scalia'as argument was basically that the necessary and proper clause has a wide scope to allow Federal action to regulate the interstate market for drugs. I don't agree with his concurrence, but I don't think that it necessarily deserves the demanding for excommunication that were hurled in Scalia's direction after the judgement was handed down, and I don't think that the result is impossible to justify within the Scalian rubric."
9.17.2005 11:18am
John S (mail):
"that the necessary and proper clause has a wide scope to allow Federal action to regulate the interstate market for drugs. "

The same thing could be said for guns as well but Scalia voted against the federal authority in US v. Lopez.
9.17.2005 1:00pm
DanB:
I think you're all putting too much legal thought into this, and not enough political thought.

Scalia and Rehnquist were so similar that there is no objective way to say that Roberts is more like one or the other. They're both more conservative than Biden, or pretty much any other Democrat, would like. Saying "I'd vote for another Rehnquist, but not another Scalia" is just Biden's way of preserving his options. If it looks like Roberts has a chance of being defeated, Biden can claim he's "a Scalia" and vote against him; if it looks like Roberts is going to be confirmed, Biden can label him "a Rehnquist" and vote for him. Either way he gets to be on the winning side, and either way he looks like he carefully studied Roberts' credentials and ideology.
9.17.2005 1:08pm
Katherine:
It's NOT the results of Scalia's cases that bother me so much. And I admire his bluntness and personal integrity. But I think originalism is wrong (not in the sense of morally wrong but in the sense of incorrect) and Constitution-killing.
9.17.2005 3:42pm
SimonD (www):
Justice Scalia has become a bogeyman for anyone left of center. Yes, some of the reason is the substance of his opinions. To cite the extreme, if his jurispridence matched Justice Ginsberg the left would be fine with him even though he was appointed by the arch enemy.
I'd go further than that. I think if his jurisprudence matched Justice Ginsberg, the left would not only tolerate but positively EMBRACE Scalia's combatativeness. They would call it "speaking truth to power", and they would love his willingness to cut through the mindless sophistry and say what's on his mind, for exactly the same reasons that many (not all) of us who are fine with his jurisprudence as it stands like his personality. I think the distaste is almost entirely a function of an overinflated caricature of the results he reaches, a caricature promulgated by the same sort of people who will defend Roe to the death without ever having actually READ the opinion of the court, let alone the dissent.

I'm baffled by the note that Scalia's looks may play into the reason the left dislike him. I mean, he's a balding, slightly overweight, Italian-American heading into his 70s; not exactly Adonis, I'll grant you. But then, neither is Michael Moore, neither is Bill Clinton, and I can't think of any of the Democrats current cheerleaders who is. If your pin-up is Howard Dean, either you have a thing for middle-American hockey dads, or you need to ajust your prescription. ;) Granted, I'm in a minority of one insofar as I think that Hillary Clinton has actually become very attractive in middle age, but I doubt that it's her looks that make Democrats willing to forgive her for anything.

Regarding Scalia as a leader, I think Tushnet is right that Scalia's abrasiveness doesn't make him a natural leader on the court, and may even have hindered his ability to carry the results. And that's from someone who LIKES that Scalia is direct and blunt. Prof. David Wagner - someone else who can hardly be sounted as a detractor of Scalia - remarked the other day that:
A student asked me this morning whether I was disappointed that Our Hero didn't get the nod for Chief. No, and for the same reason I never thought he would be chosen. The job doesn't play to his strengths at all. It would pressure him to get "moderate," as it did to Rehnquist; and it comes with a bag of administrative responsibilities that would unacceptably divert him from his mission of explaining the Law and proclaiming the Truth.
While I agree with this, my reasons for wanting Scalia as Chief had everything to do with opinion assignment. As much as I appreciate that Scalia's goal may be more to influence the strategic direction of the court rather than every day decisions - as was Rehnquist's goal, by many accounts - reading his opinions (and dissents, in particular) in the last couple of terms, the frustration at routinely losing cases which should have been no-brainers (Roper seems a prime example) seems palpable, and I think it's negatively affecting his output. I can't help that I'm impatient. ;)
9.17.2005 3:50pm
SimonD (www):
Katherine:
It's NOT the results of Scalia's cases that bother me so much. And I admire his bluntness and personal integrity. But I think originalism is wrong (not in the sense of morally wrong but in the sense of incorrect) and Constitution-killing.
Could you expand on why you think that, perhaps?

I tend to think that people's view on originalism tends to have a lot to do with their view on what the constitution IS, so perhaps make particular reference to that.
9.17.2005 3:52pm
SimonD (www):
Cornellian:
[M]y point was why is there not a single reference to original intent in Scalia's decision, not a single reference to what the framers of the interstate commerce clause or the necessary and proper clause thought, or whether the legislation in Raich would have been considered interstate commerce as that term would have been generally understood at the time of the Constitution's enactment? He selectively employs original intent when it gets the results he likes, and ignores it when, as in this case, it doesn't lead to a result he likes.
Well, technically Scalia never employs original intent:
"The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words." (Source)
I'm not going to expend too much time defending an opinion I don't agree with, because I would have joined Justice Thomas' dissent in that case, which I think rests on much more solid originalist, and textualist footing. But I don't agree that Scalia's opinion is utterly ridiculous, and he provides a perfectly reasonable justification in his concurrence, which is far, far more convincing than the opinion of the court. It just isn't as convincing as Justice Thomas' dissent.
9.17.2005 4:01pm
Challenge:
To the topic of the thread:

Maybe Rehnquist's Miranda decision earned him more currency in the liberal world than we conservatives would think.

Also Scalia in emblematic to both conservatives and liberals. Rehnquist is perceived, I think rightly, as less rigid and doctrinaire. Though they are both solid conservatives.

On the Scalia as chief question:

I do not think Scalia is as abrasive as so many think. Maybe I am wrong. But my reason for wanting him as chief is that he is the most articulate, eloquent defender and expositor of originalism/textualism in the entire judiciary. I would have loved Scalia to have been Scalia before the judiciary committee. While some fine jurists are not great debaters, Scalia is as powerful in oral argument as he is in written. I care deeply about presenting originalism and textualism to the American people, and I think Scalia has the tools, and with the additional exposure of chief he would have had the platform. But, alas, that will never be.

I think it is also wise, as Reagan did with Rehnquist, to appoint conservatives who are known inside and out. Rehnquist earned his conservative bonafides when he was the "loan ranger" and nobody could think of him as a potential squish. Roberts' endorsement of substantive due process, of the outcome of Griswold, and his support for "privacy" rights are troubling to any true judicial conservative.
9.17.2005 4:08pm
SimonD (www):
Roberts' endorsement of substantive due process, of the outcome of Griswold, and his support for "privacy" rights are troubling to any true judicial conservative.
One slight rejoinder I'd offer to that is that there is an originalist argument which argues that Griswold was correctly decided. To be clear, I do not buy into this idea, but there is a reasonable argument made that the ninth amendment was understood to permit the judiciary to enforce unenumerated rights, but only those rights which were widely understood to be natural and inviolable rights at the time of ratification. Under this rubric, marital privacy could be argued to have constituted a right in 1791, and therefore Griswold could have reached the right result. I do not buy into this, though, because I don't believe that the ninth amendment creates justiciable rights, and I feel that the nith amendment has a very different (and none-the-less important) purpose and function to that proposed by the advocates of unenumerated rights. I thought I'd add though that there is an argument - and a perfectly coherent, reasonable argument, at that - made that I'm wrong about this.
9.17.2005 4:20pm
Challenge:
"To be clear, I do not buy into this idea, but there is a reasonable argument made that the ninth amendment was understood to permit the judiciary to enforce unenumerated rights, but only those rights which were widely understood to be natural and inviolable rights at the time of ratification."

I do not believe that is a reasonable argument. Sorry. You are kinder than I.
9.17.2005 4:34pm
eng:
Its all well and fine to say that the court should protect the powerless but behaving as if it *obvious* who the powerless is is fool hardy.

The problem with the doctrine of "protect the little guy" is that it endorses the view that the court should pick its preferred victor and work the law until is can find a result in favor of that person.

Can you not see the utter corruption that this position brings?


As for this point about living/evolving constitutions. Can you honestly claim that's an accurate way to frame the debate? Again (and I'm getting repetitive here), I really like the way Professor Barnett framed the issue. Applying the constitution requires you both determine what it says and to determine how what it says applies to the situation at first. I believe he calls this interpretation versus construction.

In so doing he argues quite well I think that original meaning IS NOT necessarily strict constructionist.

It is in that latter case were you encounter mismatches between your jurisprudence and current events, but resolving that defect by no means implies you need or should abandon an attempt to first determine what the words meant when they were written.
9.17.2005 5:16pm
Niner:
SimonD and Challenge,

Do either of you care to offer any support for why you reject the idea that the Ninth Amendment protects unenumerated rights?

I'm not a lawyer, but that certainly seems like the plain meaning of the Amendment to me.

It seems there is also some support in the framers 'intent', if you care about such things. From the James Madison center:

"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution."
-Madison

link
9.17.2005 5:30pm
John S (mail):
I'm not a lawyer but am curious - can Loving be defended on originalist grounds?
9.17.2005 5:35pm
SimonD (www):
Do either of you care to offer any support for why you reject the idea that the Ninth Amendment protects unenumerated rights?
Yes. I have done so at some length in two replies here, and I am working on an (interminably delayed) essay that covers much the same ground.
9.17.2005 5:41pm
SimonD (www):
I'm not a lawyer but am curious - can Loving be defended on originalist grounds?
I realy don't know much about Loving, I don't think I've ever even read it. My initial, gut reaction - and I don't mean to endorse this result - would be that a law that prohibited marriage between two people based on their race would indeed fail an equal protection challenge. In his Lawrence dissent, Scalia noted:
The objection is made, however, that the antimiscegenation laws invalidated in Loving v. Virginia, 388 U.S. 1, 8 (1967), similarly were applicable to whites and blacks alike, and only distinguished between the races insofar as the partner was concerned. In Loving, however, we correctly applied heightened scrutiny, rather than the usual rational-basis review, because the Virginia statute was "designed to maintain White Supremacy." Id., at 6, 11. A racially discriminatory purpose is always sufficient to subject a law to strict scrutiny, even a facially neutral law that makes no mention of race.
(Lawrence v. Texas, 539 U.S. 558) (Opinion of Scalia, J., at 16)
9.17.2005 5:52pm
John S (mail):
"because the Virginia statute was "designed to maintain White Supremacy."

How is that so? I thought Scalia hated legislative intent. One could argue it was just designed to keep races pure, not necesarily putting one race above the other.
9.17.2005 5:56pm
Challenge:
Niner,

I have absolutely no problem applying the "plain meaning" of the Ninth Amendment in the federal context. If you're familiar with the "incorporation" controversy, then you can understand why one would object to applying the Ninth Amendment's "plain meaning" against states. Especially because the Ninth and Tenth Amendments were not rights per se, but were instead intended as a way to emphasize the limits of federal power.
9.17.2005 7:12pm
Marcus1:
In Lawrence, Scalia said that the majority's ruling threatens state laws against masturbation. He also said there's no equal protection problem, because gay people can still have heterosexual sex.

The other day, they were talking about determining whether Roberts has a heart. Scalia clearly does not. He's arrogant and ideological to the point that no reasonable person would expect to change his mind about anything. This is why he shouldn't be a judge. Rehnquist is conservative, but doesn't display this lack of judiciousness.

It's not just about how they vote on the outcome. It's about making sure that they're doing it on a proper basis. I think that's Biden's objective.
9.17.2005 7:34pm
Marcus1:
Mark,

>It seems an exercise in futility to try and apply logic to Biden's thinking process. Yes, he does land a few reasonable and logical points from time to time (perhaps one out of twenty over the past 33 years), but it's entirely a haphazard function of catch as catch can. So you shouldn't feel too puzzled at all.<

Is that less than you can say about George W. Bush?
9.17.2005 7:36pm
Matthew G.:
I like a lot of things about Justice Scalia, but I really won't ever be able to respect him after his dissent in _Lawrence v. Texas_. And I refer not to his reasoning -- which in many cases was probably right -- but to the substantial portion of the dissent he gave over to endorsing many of the irrational stereotypes that persist about gay people. Had he confined himself to saying there was no basis in the law for the Court's holding, his opinion would have been quite reasonable. Sadly, he exposed his inner bigot in a way that was both offensive and totally unnecessary to his dissent.

I don't know if that's what was on Biden's mind, but it's what was on mine when I read the quote.
9.17.2005 7:57pm
Challenge:
Matthew G,

It's been awhile since I've read Lawrence. I don't recall being shocked or offended. Maybe you can cite what you believe was hateful or bigoted. Thanks
9.17.2005 9:34pm
adam (mail):
I agree with Matthew.

master chief
Hookah Kings
9.17.2005 10:01pm
Randy:

Lawrence v. Texas
Sorry no pin-point citations

"The Texas statute undeniably seeks to further the belief of it's citizens that certain forms of sexual behavior are 'immoral and unacceptable,' -- the same interest furthered by criminal law against fornication, bigamy, adultery, adult incest, bestiality, and obscenity."

"Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditional attached to homosexual conduct"

"The Court views it as "discrimination" which is the function of our judgments to deter. So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seeming unaware that the attitudes of that culture are not obviously 'mainstream'; that in most states what the court calls 'discriminations' against those who engage in homosexual acts is perfectly legal"

Also in Romer v. Evans, 517 U.S. 620 (1996).

"In holding that homosexuality cannot be singled out for disfavorable treatment, the Court… places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias."
9.17.2005 10:55pm
Rambler (mail):
What bothers me about what Biden said, is the dumb idea that it is okay to vote for a Supreme Ct. nominee because he or she is believed to be of the same ilk as the one who just died or retired. The present "make-up" of the court will then somehow be preserved. When Scalia dies or retires, will it then be okay to put another acknowledged reactionary on the court? I hope not.
9.18.2005 12:01am
Challenge:
Randy, I'm still not getting it. What's hateful or bigoted in any of that?

In your first quote, Scalia is saying bans on homosexual sodomy are bans promoting majority sexual morality. That interest in sexual morality is the basis behind laws which prohibit incest, bestiality, et al. That is a legitimate point--if sexual morality is an illegitimate basis of law, then it follows that those laws will be imperiled.

The second quote you cite is a small portion of a larger point--that America's legal culture is quite distinct from American culture more broadly. His citing this fact should not be controversial.

Third citation is more of the same.

Once more, the fourth quotation you provide is, I think, something which is not controversial. The Court is saying, at least in the eyes of the Constitution, more or less, that discrimination on the basis of homosexuality is the same as religious or racial discrimination. That is, I think, a pretty unremarkable observation. Does pointing it out translate to bigotry?

I've read Lawrence several times. Each time other than the first is because people claim Scalia's bigotry is so evident. Each time I read it, I find no evidence of that proposition. Ditto with Romer.
9.18.2005 3:15am
Roger Sweeny (mail):
To get back to the original question, why would Biden say it?

We all have stories that we believe about how the world works--we have to; we need to generalize and "make sense of" things. Within the stories ("models," "meta-narratives") are smaller stories, with plots that make sense and characters we can keep track of.

Antonin Scalia is a deliberately provocative writer, in dissent often acidly taking down those he disagrees with. So, to most readers of the New York Times, he is the wild-eyed conservative activist, dangerous, dangerous, dangerous. William Rhenquist, who might have played this role 20 years ago, plays the more stolid, bureaucratic "Chief." No precedents beloved of the conventional wisdom have been overturned during tenure so he must not be so bad, not so extreme.
9.18.2005 9:59am
Randy:
Challenge,

I actually didn't say anything about Scalia being a bigot, I just provided some quote that I thought were most relevant to the issue. I agree with you that none of those comments "prove" that Scalia is a bigot, they all have some (relatively) neutral explanation, but at the same time I do think they are quite suspect.

The first comment compares consensual homosexual intimacy with bestiality; certain religious fanatics might believe that these are in the same category, but I hardly think there is a "moral majority" that holds this type of archaic belief.

In the second quote Scalia gives credence to some sort of "homosexual agenda" conspiracy, whether or not a majority of people believe in something like this I hardly think that it is proper material for a judicial opinion.

I don't feel like going through every point or deeply explaining why they would lead me to believe the man has an extremely unenlightened view of homosexuality (and is willing to give legal effect to an even more bigoted form) because I doubt I'm going to convince anyone. Perhaps one either reads the opinion and says to themselves, "that's not something an unbiased person would say," or they don't. He certainly don't say anything inconsistent with a moderately bigoted perspective (he does give lip service to the idea that he doesn't hate gay people), and you can hardly expect any more explicit anti-gay statements. If you are willing to by the, "just giving effect to other people's beliefs," he didn't say anything more bigoted then the court in Plessy.
9.18.2005 10:34am
Anon7 (mail):
When is Scalia-style orignialism silly? When trying to determine the legality of using thermal imaging, wiretaps, and directional microphones in police surveillance by applying 220 year old definitions of what constitutes a "search."
9.18.2005 1:09pm
Randy:
Note also that, contrary to your reading, in the fourth (Romer) quotation Scalia is disagreeing that homosexuality should be treated with the same scrutiny as racial or religious bias. He accuses the court of placing them on the same level and finds the idea to be outrageous.
9.18.2005 3:36pm
Challenge:
"He accuses the court of placing them on the same level and finds the idea to be outrageous."

I think most people agree with that. Are most people bigots? One can find both morally wrong, but not view them as equivalents.

On the bestiality issue: Sexual morality is the basis of such laws, yet in Lawrence that is what the Court found to be an illegitmate basis of law. Certainly there are many ways to distinguish bestiality from homosexuality, and they are of course very different things. But I don't think it should be in question, and it should be quite unremarkable and uncontroversial to any honest observer that Lawrence did in fact undermine and erode the basis of laws against incest (especially consentual), polygamy, and bestiality. Similarly, in Romer, the majority's decision implied quite clearly that Utah (and I believe Arizona) were violating the Constitution with their constitutional prohibitions against polygamy. One can make that assertion about a poorly crafted and conceived decision without believing they are truly moral equivalents.
9.18.2005 4:58pm
Challenge:
If someone would have said in 1955 that Griswold, which created an uncontroversial right to contraception within marriage (a right which was never in jeopardy), would lead to a right to abortion on demand and homosexual sodomy, I think that person would have been condemned much as Scalia has been for his comparisons to polygamy, bestiality, etc.

But they would have been right. When Court's create poorly thought-out sophistries to reach their desired outcomes, the legal principles they created ad-hoc persist and reappear, taking on a life of their own.
9.18.2005 5:04pm
Randy:
I have little interest in continuing this conversation, but I would like to point out one glaring inconsistency. First, you supported your initial, incorrect, interpretation of the Romer quotation, stating that treating discrimination against gays with the same scrutiny as religious or racial bias was uncontroversial. Then when presented with the correct interpretation, that Scalia was outraged by the idea the would be treated similarly, you turned a complete 360, stating it was uncontroversial that discrimination against gays would not be considered on the same level as other forms of discrimination.

It seems you are willing to agree with anything the man says.
9.18.2005 9:40pm
Challenge:
Re-read what I wrote, Randy.

The Court is saying[Romer majority opinion], at least in the eyes of the Constitution, more or less, that discrimination on the basis of homosexuality is the same as religious or racial discrimination. That is, I think, a pretty unremarkable observation. Does pointing it out translate to bigotry?
9.18.2005 10:44pm
Hoystory (mail) (www):
John S,

Just for the record with Kelo decision. I think if you google it, you'll find that the people who had their land taken from are only getting "fair market value" for what their land was worth five years ago when the city first tried to take it. All of the increase in the land's value since then as a result of the recent increase in housing values is going to the new owners.


Those who believe in the adage "when it rains, it pours" might take the tale of the plaintiffs in Kelo v. New London as a cue to buy two of every animal and a load of wood from Home Depot. The U.S. Supreme Court recently found that the city's original seizure of private property was constitutional under the principal of eminent domain, and now New London is claiming that the affected homeowners were living on city land for the duration of the lawsuit and owe back rent. It's a new definition of chutzpah: Confiscate land and charge back rent for the years the owners fought confiscation.

In some cases, their debt could amount to hundreds of thousands of dollars. Moreover, the homeowners are being offered buyouts based on the market rate as it was in 2000 .


Those people continue to get the shaft. Don't sugarcoat it.
9.19.2005 5:44am
John S (mail):
Never meant to sugarcoat it, Kelo is outrageous. This isn't the the first such case and Bush's Texas Rangers stadium deal is just as outrageous. In that case they even convinced the local government to pay for the "public use" that supposedly was being engaged via eminent domain. It doesn't seem to be those on the right so outraged about Kelo ever showed such outrage towards the other case(s).
9.19.2005 11:05am
Justin (mail):
"When is Scalia-style orignialism silly? When trying to determine the legality of using thermal imaging, wiretaps, and directional microphones in police surveillance by applying 220 year old definitions of what constitutes a "search.""

That's not WHEN Scalia is scalia, that's simply evidence THAT Scalia is silly. The same problems occur when determining whether JDP is cruel and unusual, whether gays deserve equal protection under the law of the 14th amendment when we all agree that as of now those suffering from pedophilia and the animal equivalent do not, or whether a medical marijuana compact is creating an interstate instrument.

The fact is, though the Constitution is not perfect, and we should not all interpret it like Dworkin (but see Kelo), we should interpret the original STRUCTURE of it to conform with modern technology and understanding of social norms. That the Constitution is not a "statute" used to be obvious even to what we now call "originalists". Structuralism was, in fact, the ORIGINAL method of Constitutional interpretation (see M'Colloch v. Maryland). Absent the useful political rhetoric, and the abundance of people either deluded or pretending to be deluded into not just the preference but the absolute rightfulness of their theory, originalism and a form of textualism that depends on the impossible fiction of a word that holds meaning divorced from intent would be academic jokes.
9.19.2005 11:07am
John S (mail):
Challenge, I encourge to you read Randy Barnett's excellent comment about Lawrence. The decision is founded in liberty and not the right to privacy. Many/most of the other morality laws you cite have at least plausible arguments about public interest that justify them. Texas admitted in Lawrence that the only reason for the statute was to reflect the majority's moral opinion about the behavior.

Randy's piece shows how this attitude could lead to tyrannical government, something it seems would be very inconsistent with those who founded this country.
9.19.2005 11:17am
Challenge:
There is a public interest argument about sodomy laws that can be made.

Gay men are at insanely disproportionate risk for HIV/AIDS transmission, and other STDS, such as syphillis. Outlawing gay sex, then, is rationally related to a legitimate state interest of reducing STD risk.

Do I think that's a super-duper argument? No. Do I like sodomy laws, heterosexual or homosexual? Absolutely not.

That said, moral revolusion IS a a legitimate basis for law--even when I disagree with it. We outlaw bestiality because we are disgusted by it, no other reason. We outlaw polygamy because we are morally revolted by it. We outlaw incest even in cases where nobody will know and there is no possible chance of conception and it is completely consentual. We outlaw incest because we are disgusted by it, not because it is a reasoned "public policy."

To those who have conceded that their reasoning for Lawrence would allow two brothers to have sex free from government's intrusion (what about their marriage equality?), or that polygamy must be allowed, I feel a Posner quote found in an exchange of his with nutcase Peter Singer (discussed above) is an apt one; "I admire the clarity of your thought and your intellectual courage in pursuing the logic of your philosophy all the way—to its unacceptable conclusions."
9.20.2005 9:24pm