NYT: Even in Agreement, Scalia Puts Roberts to Lash
- From: kuacou241@xxxxxxxxx
- Date: Fri, 29 Jun 2007 13:01:31 -0000
New York Times
June 28, 2007
Supreme Court Memo
Even in Agreement, Scalia Puts Roberts to Lash
By LINDA GREENHOUSE
WASHINGTON, June 27 - It's not every day that one Supreme Court
justice, even one as rhetorically unrestrained as Justice Antonin
Scalia, characterizes another justice, let alone the chief justice of
the United States, as a wimp and a hypocrite.
Yet Justice Scalia did something very close to that, not once but
twice, in separate opinions on Monday. As a result, he has served to
lift the curtain a bit on the differences within the powerful five-
justice conservative bloc that has marched in lock step through much
of the term, bent on reshaping the law and, in several important
areas, well on the way toward doing so.
In the campaign finance case, he accused Chief Justice John G. Roberts
Jr. of "faux judicial modesty" for writing an opinion that in Justice
Scalia's view effectively overturned the court's 2003 campaign finance
decision "without saying so." The clear implication was that the chief
justice lacked the courage or honesty to overturn the precedent openly
as Justice Scalia himself would have done.
"This faux judicial restraint is judicial obfuscation," he said.
And Justice Scalia was scathing in his criticism of an opinion signed
by Chief Justice Roberts that limited, but did not completely abolish,
the right of taxpayers to go to court to challenge government
expenditures that promote religion. Justice Scalia would have gone on
to shut the courthouse door completely, not simply limiting but
overturning the precedent that the new ruling invoked.
"Minimalism is an admirable judicial trait," Justice Scalia said, "but
not when it comes at the cost of meaningless and disingenuous
distinctions."
It made no difference that Justice Samuel A. Alito Jr., another
reliable member of the conservative bloc, was the author of that
opinion that Chief Justice Roberts joined. Justice Scalia was clearly
taking aim at the chief justice, openly mocking his much publicized
goal of lowering the court's temperature through unanimous and
jurisprudentially modest decisions.
Justice Scalia is, of course, well known for his verbal barbs. Few
colleagues during his 21 years on the court have escaped his insults,
not even Chief Justice William H. Rehnquist. He once accused Justice
Sandra Day O'Connor of holding "irrational" views that "cannot be
taken seriously." A book published in 2004 under the title "Scalia
Dissents" celebrated what it called the justice's "unique
communication skills."
But what was notable about his attacks on Chief Justice Roberts this
week was that the two were on the same side. They were in dispute not
over outcomes, but over how far and how fast to move the law. As Prof.
Jack M. Balkin of Yale Law School wrote on his blog, Balkinization,
"It is the difference between bomb throwing and dismantling."
Liberals are quick to point out that this may well prove to be a
distinction without a difference, because throughout the term, these
two justices have been arriving at the same bottom-line conclusions.
Prof. Erwin Chemerinsky of Duke Law School observed that Chief Justice
Roberts, who has taken the conservative position in every
ideologically divided case this term, could hardly be described as
less conservative than Justice Scalia.
Prof. Mark Tushnet of Harvard Law School, whose recent book, "A Court
Divided," explored the differences among Republican-appointed members
of the Rehnquist court, said that "a consolidated conservative
majority, not a divided conservative majority," was now in charge.
But Justice Scalia has never been a particularly patient man, and at
71, with the conservative ascendancy at the court perhaps at its peak
for the foreseeable future if Republicans lose the White House next
year, he sees little to gain from incrementalism or its appearance.
And even liberals who do not share his agenda concede his point that
if a precedent is going to be overruled in all but name, it is better
for all concerned to acknowledge the overruling as a fact.
"It's neither minimalist nor restrained to overrule cases while
pretending you are not," Walter E. Dellinger III, who served as acting
solicitor general in the Clinton administration, said in an online
conversation on Slate. Mr. Dellinger's point was that "there can also
be a significant cost to the coherence of the system" if lower courts
are in the dark as to which precedents they must still rely on.
Chief Justice Roberts, operating on a long timeline at 52, may be
responding to a different imperative. Openly overturning numerous
precedents early in his tenure would invite criticism that the Roberts
court has an agenda to "radically shift American law," said Thomas C.
Goldstein, a student of the court who argues there often.
The conservative alliance at the court may be fractious but not
fragile, strong enough to withstand Justice Scalia's "tweaking and
needling," as Prof. Richard W. Garnett of Notre Dame Law School
describes it.
"I look at it as a bit of a kabuki dance," said Professor Garnett, who
clerked for Chief Justice Rehnquist and is close to the court's
conservatives. He said he had no doubt that Justice Scalia had "huge
respect for the new chief as a person and as a lawyer."
What is visible now, he said, is the latest iteration of the endless
struggle between the need for stability in the law and the desire to
correct previous mistakes.
"Different people who call themselves conservatives resolve that
tension in different ways," Professor Garnett said, adding that
Justice Scalia was "laying down markers, making sure the arguments are
out there to be used in later cases."
http://www.nytimes.com/2007/06/28/washington/28memo.html
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