NYT Editorial: Scalia is an activist judge too! (You'll love this one)

[Nothing Without Hope]

Here are the last four paragraphs of an article that will make you glad to see some truth at last. Enjoy!

http://www.nytimes.com/2005/04/19/opinion/19tue3.html?th&emc=th
EDITORIAL OBSERVER
Psst...Justice Scalia...You Know, You're an Activist Judge, Too
By ADAM COHEN
Published: April 19, 2005

(snip)

Justice Scalia likes to boast that he follows his strict-constructionist philosophy wherever it leads, even if it leads to results he disagrees with. But it is uncanny how often it leads him just where he already wanted to go. In his view, the 14th Amendment prohibits Michigan from using affirmative action in college admissions, but lets Texas make gay sex a crime. (The Supreme Court has held just the opposite.) He is dismissive when inmates invoke the Eighth Amendment ban on cruel and unusual punishment to challenge prison conditions. But he is supportive when wealthy people try to expand the "takings clause" to block the government from regulating their property.

The inconsistency of the conservative war on judges was apparent in the Terri Schiavo ordeal. Mr. DeLay, an outspoken critic of activist courts, does not want to investigate the federal trial judge and the United States Court of Appeals for the 11th Circuit for judicial activism, but for the opposite: for refusing to overturn the Florida state courts' legal decisions, and Michael Schiavo's decisions about his wife's medical care.

The classic example of conservative inconsistency remains Bush v. Gore. Not only did the court's conservative bloc trample on the Florida state courts and stop the vote counting - it declared its ruling would not be a precedent for future cases. How does Justice Scalia explain that decision? In a recent New Yorker profile, he is quoted as saying, with startling candor, that "the only issue was whether we should put an end to it, after three weeks of looking like a fool in the eyes of the world." That, of course, isn't a constitutional argument - it is an unapologetic defense of judicial activism.

When it comes to judicial activism, conservative judges are no better than liberal ones - and, it must be said, no worse. If conservatives are going to continue their war on the judiciary, though, they should be honest. They do not want to get rid of judicial activists, a standard that would bring down even Justice Scalia. They want to rid the courts of judges who disagree with them.

ed;typo

[Dogmudgeon]

1. There's a very good reason for that

It's because Scalia is an arrogant hypocrite.

--p!

[Nothing Without Hope]

3. I wish I could ignore the copyright laws and give you the whole article

It's one to relish, and I could only give a little of it. I finally broke down and registered for the free online NYT headline delivery service and web access - and I'm glad I did. This article was a kind of reward.

They are ALL arrogant hypocrites, it's part of the neocon character. At some future date they will be at each other's throats, I think. They are so full of hate and greedy pride, it's only honor among thieves that holds them together now.

ed:typo

[Dogmudgeon]

12. Thanks, but I was able to get the whole article

The members of the "Rectal Right" been like this for years, irony-addicted hypocrites. Right now, they're only getting by because of the culture war. Soon, even that won't be enough.

It will have taken a few decades to end their reign. The sad part will be the broken lives and bodies they leave behind when they finally do fall from power.

--p!

[calimary]

17. Remember "situational ethics" - one of the big Clinton put-downs that

these vile people spewed so frequently during the Monica affair? Well, sounds like something VERY close to their own hearts. Um - can I get a tour of that nice glass house you live in, Mr. CONservative?

[indepat]

10. Scalia is the type of sanctimonious hypocrite who IMHO interprets the law

to fit his already warped misconceptions.

[xchrom]

2. i feel so cutting edge.

du should be proud of itself --leading msm by how long?

[Nothing Without Hope]

13. yeah, it sure took them a long time to figure it out - or rather, to ADMIT

it! Interesting that there is another progressive OpEd in this edition:
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=115x22432
Thread title: NYTimes: THE MISSING ENERGY STRATEGY (about time it was noticed!)

[Demit]

4. This writer sees the logical inconsistency, and we see it here at DU...

The wonder is that more people in the media, and the rest of the country, don't. My fear is that the radical Right is wearing us all down, gradually shifting us away from a standard of logic, so that we will meekly accept whatever they say and forget that we were ever once able to persuade by a thing called logic.

[Nothing Without Hope]

5. We need to write the NYT and praise this article. Cohen deserves SUPPORT

You know the neocons are going to organize a bonfire under Adam Cohen's chair because he dared to write this article. He needs our support. More generally, this progressive, logical viewpoint needs to be pushed. Editors respond to numbers and tone of letters/emails. Let's give them some - you KNOW the neocons will be blasting away.

Does anyone have a good email address for sending comments about this op-ed piece? There wasn't one given on the page with the article.

[annabanana]

6. here's the LTTE email:

[e-mail]

[Nothing Without Hope]

7. Thanks! I urge whoever has time and access to read the complete article

and write an email of support for this refreshingly logical, truthful article. You know they're going to get lots of hate mail about it.

[dbt]

8. Irony Detectors In Total Meltdown!

Lemme see do I grok this. Fat Tony was worried about the electoral process, which was proceeding according to the law, making us "look like a fool in the eyes of the world."

So he and the other Traitors install bu$h in the White House. Hoppin' Jesus, Tony, what the fuck do we look like NOW?!?!?

Verily, I grok not.

[Nothing Without Hope]

9. His irony detectors - along with his conscience and his integrity - are

totally insulated behind a wall of arrogance. He does not live in the same world we do, I'm convinced.

[ebayfool]

11. This is very, very, VERY nice - kicking for more LTTE!

Thanks for the early morn lift, NWH!

[Nothing Without Hope]

14. My pleasure, dj! And while you're on a roll, check out this OTHER

progressive OpEd in today's NYT, linked to upthread:
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=1732615&mesg_id=1732693

[wabranty]

15. McCulloch v. Maryland argues against strict constructionism

Anyone who has read the Federalist Papers and the opinion in McCulloch v. Maryland (http://www.infoplease.com/ce6/history/A0830864.html) can see that the Supreme Court allows for a loose interpretation of the Constitution. The Founding Fathers realized that constitutional flexibility was needed because we cannot predict the future and thus the Constitution has to adopt to the changing times. Law is slow to change but it must change inevitably or it becomes useless.

And the most telling argument against strict constructionism is the Ninth Amendment. It is interesting to me how the strict constructionists spend thousands of pages on precisely parsing the Second Amendment but the Ninth Amendment is "merely an inkblot" according to Bork (http://caselaw.lp.findlaw.com/data/constitution/amendment09/). That is because the Ninth Amendment can form the basis for the rights of environmental quality, free artistic expression, and the supremacy of individual rights over corporate rights. And how does Scalia square Bush v. Gore with the Constitution's Guarantee Clause which clearly states that it is the duty of the Congress to guarantee a republican form of government in every state (http://caselaw.lp.findlaw.com/data/constitution/article04/18.html#2). Maybe Scalia took the phrase "republican form of government" too literally.

[Lexingtonian]

21. don't even try

'Strict constructionism' is the way of interpreting the Constitution to enforce the social and economic order of a colonial society.

Here's some of John Dean's expose on Rehnquist. And, at the bottom of the page, Rehnquist's definition of a 'strict constructionist'.

http://writ.news.findlaw.com/hilden/20011101.html

If you ever want to see a full blown 'strict constructionist' travesty, have a look at the majority opinion in Richardson v Ramirez. Then look at the Marshall/Brennan dissent....

http://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=429887

[Nothing Without Hope]

16. kick! n/t

[suigeneris]

18. And just imagine, this guy is high on the list for Chief Justice nt

[Nothing Without Hope]

19. So amazing, it's an up is down world - he other favorite is Thomas. n/t

[Nothing Without Hope]

20. kick n/t