Posted by: Harold Knight | 09/27/2010

The Troubling Scalia Supreme Court

“For too long, Justice Scalia [and conservative politicians have] been allowed to paint a caricature of nonoriginalists as jurists who are dying to impose their personal preferences on an unwitting nation.”
James E. Ryan. “Does It Take a Theory? Originalism, Active Liberty, and Minimalism.” Stanford Law Review 1623,1636 (2006), 58.

“Thus, Scalia repeatedly indicates that his ideas about judicial role depend on a PARTICULAR VIEW of democratic theory and ‘principle,’ rather than on undecorated historical facts.”
Craig Green.

TODAY I LAUNCH A NEW PROJECT HERE ON MY BLOG. I have added a page “The DELETERIOUS Scalia Supreme Court” (see page link above).

The purpose of the page is to document on a continuing basis the actions, writings, and speeches of Justice Antonin Scalia imposing his conservative political and religious views on our nation through his ex-officio leadership of the Supreme Court. His concept of “originalism” is to law what “inerrancy of the scriptures” is to fundamentalist christians. It is dangerous.

I will continue to post on that page (until it becomes so unwieldy that it’s useless—and then I will find a new way to continue the project) citations of and quotations from articles in both scholarly and non-peer-reviewed publications about the disastrous effects on our democratic and republican processes brought about by Antonin Scalia’s writings, both in his court opinions and in public forums.

Below is the author’s abstract for the first article I have referenced.

Green, Craig. “An Intellectual History of Judicial Activism.” Emory Law Journal 58.5 (2009): 1195-1263.

Craig Green is Associate Professor of Law, Temple University; J.D., Yale Law School. Professor Green’s attribution: “This Article is dedicated to Justice David H. Souter, a judge with great wisdom and kindness. May his example endure.”

Author’s Abstract:

Over the past six decades, the term “judicial activism” has become an immensely popular tool for criticizing judges’ behavior. Despite the term’s prominence, however, its meaning is obscure, and its origins have been forgotten. This Article seeks to correct such deficiencies through a detailed conceptual and historical analysis of judicial activism.

First, the Article analyzes legal rhetoric, describing the post-war origins of the phrase “judicial activism, “ its eighteenth- and nineteenth-century prehistory, and its rise to prominence in the late twentieth-century. Second, the Article rejects as incoherent modern definitions of judicial activism, and instead describes a functional “concept” of activism based on unenforced norms of judicial propriety. Because judges make many decisions without supervision by other public officials, debates over judicial role are crucial to our legal system’s operation. These debates—regardless of whether they use the word “activism”—illustrate why the concept of judicial activism remains inescapably important. Third, the Article offers a two-part, common-law method of determining whether particular decisions or judges are activist. This method contrasts with other ways of evaluating activism such as textualism, originalism, and jurisprudential theory. If widely adopted, the proposed approach to judicial activism might yield clearer perceptions of judicial behavior and might reduce destructive schisms between expert and non-expert discussions of judicial role.


%d bloggers like this: