The Daily Sandwich

"We have to learn the lesson that intellectual honesty is fundamental for everything we cherish." -Sir Karl Popper

Location: Boston, Massachusetts, United States


Tuesday, February 20, 2007

Is he a dream? (Oooohhh!) Or a dud? (Awwww...)

Two stories on Antonin Scalia, the reactionary judge who made the news most recently for having a Cheney-esque "Go fuck yourself" moment with an inquisitive journalist.

Is he pulling the strings at the Supreme Court? Between now and late June, the court is set to hand down decisions in four areas of law — race, religion, abortion regulation and campaign finance — where Scalia's views may now represent the majority.

In each of those areas, the retirement of centrist Justice Sandra Day O'Connor and her replacement with Justice Samuel A. Alito Jr. figure to tip the court to the right. That would give the 70-year-old Scalia the chance to play a part that has largely eluded him: speaking for the court in major rulings.

Scalia does not see shades of gray in most legal disputes; instead, he favors clear rules and broad decisions.

Or do we have nothing to worry about?

To put it bluntly, the changes brought in by the Roberts-Alito duo might well prove neither "profound" nor "lasting." Not to sell either man short. They are both first-rate legal minds, talented and collegial men, and seemingly secure in their own intellectual directions--the very sort of people who tend to affect the Court in the long run. This is Greenburg's point. Instead of appointing people who would be changed by the institution of the Court and drift leftward, Bush chose people who had sufficiently well-developed judicial philosophies to remain true to judicial conservatism and move the Court toward themselves.

Yet the confirmation of every new justice provokes the earnest conviction that a new day has dawned. Genuine new days are few and far between. The Court's institutional conservatism--that is, its general slowness to change and the modesty of its shifts when it does move--is deep enough to make almost all such predictions look bad in retrospect. The judiciary is a very big ship, and one with nine pairs of hands on its wheel.

I'm leaning closer to the LAT's interpretation. While a long-term view can make you sound just too wise for words, it ignores the immediate impact of pending rulings. After all, there are now 4 reactionaries on the Court who are quite outspoken about their contempt for progressivism, their eagerness to decide constituional questions on their religious beliefs, and other things one generally doesn't associate with impartial jurists.