Over at the VC, David Bernstein has a quick analysis of the Raich decision that includes this statement:
Justice Scalia's concurrence, unlike Justice Thomas's dissent, does not address the original meaning of the Commerce Clause. This reflects a pattern with Scalia, apparent also in his affirmative action, First Amendment, and other opinions: he is much more likely to resort to originalist arguments when they can be used to undermine Warren Court precedents that conflict with his deeply held moral and political views than when such arguments would either undermine his political views or challenge precedents that are not on the social conservative (tempered, as in First Amendment cases, by Scalia's academic elitist solicitude (which I share) for freedom of expression) "hit list."
Bingo. For Scalia, far too often, originalism is a useful both as rhetorical strategy and as a tool with which to beat up those he disagrees with. But when the logical outcome of originalism is contrary to his goals, originalism goes right out the window. Thomas is far more consistent.
More like this
Noah Graubart has an excellent essay on the varieties of judicial conservatives, particularly in respect to the Alito nomination.
You'll recall that last week, Sam Walker told Radley Balko that Scalia had gotten his research considerably wrong in his opinion in Hudson v Michigan.
Justice Scalia gave a speech in Puerto Rico yesterday in which he bashed the idea of a "living constitution" (and rightly so, I think, this idea
I must be really predictable in what I write about. For the second time this week, someone emailed me a link to an article that I already had open on my screen with the intention of writing about.
And that's exactly what "judicial activism" should be defined as. When one's ideology takes primacy over the rule of law.