Saturday, May 01, 2004

In Re Scalia the Outspoken v. Scalia the Reserved - A Reinterpretation

This New York Times article largely consists of liberal law profs talking about Scalia, with Douglas Kmiec thrown in for good measure. Be sure to read the whole article. But let me present some of their statements.

"'He ranks with Holmes and Jackson as a writer,' said Cass R. Sunstein, a law professor at the University of Chicago, referring to Justices Oliver Wendell Holmes Jr. and Robert H. Jackson."

Or maybe he meant Sherlock Holmes and Jesse Jackson. Who's heard of those other guys?

"But Stephen Gillers, who teaches judicial ethics at New York University, draws a different comparison: 'Since World War II, I think it's fair to say, the extrajudicial conduct of only three justices have become significantly newsworthy in a harmful way: Fortas, Douglas, Scalia.'"

Oh come on. This isn't impeachment stuff. And if Gillers thinks it is, why didn't he include Rehnquist on his list? He went through the same thing 30 years ago. Fortas and Douglas had shady deals with "foundations" that in reality were interest groups paying them off, or so the story goes. Scalia just doesn't understand 28 USC 455.

"'His writing style is entertaining in the way that shouting matches on `Hardball' are entertaining,' said Mark Tushnet, a law professor at Georgetown. 'Nobody persuades anyone by shouting on `Hardball.'"

Quite right. Scalia's opinions have had little or no play in our legal culture or in the academy. His ideas on originalism, administrative law, etc, haven't influenced anybody. He's made no mark on the law. That's Antonin Scalia: never persuaded anyone. If only he'd settle down and write like Justice O'Connor.

"'When I worked for him, he had a set of principles, and those principles led to principled results, which were sometimes conservative and sometimes liberal,' said Lawrence Lessig, a law professor at Stanford who was also a law clerk to Justice Scalia. 'I don't understand anymore how his jurisprudence follows from his principles.'"

I'm pretty sure Lessig is actually talking about himself.

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