Justice Scalia as Civil Libertarian

Author and lawyer Scott Turow opines in the New York Times Magazine today that Justice Anton Scalia is a civil libertarian who may decide against the Administration in terror cases.

On Scalia's originalist philosophy:

Justice Scalia is led to these seemingly divergent positions by his unyielding adherence to a school of constitutional interpretation called originalism. To Scalia, the Bill of Rights means exactly what it did in 1791, no more, no less. The needs of an evolving society, he says, should be addressed by legislation rather than the courts.

On the warrantless wiretap challenge when it gets to the high court:

It appears most likely that when the wiretapping program inevitably reaches the court, the justices will have to weigh the president’s claim of inherent authority against the statute in place when the program began. The statute explicitly says its warrant procedure is “the exclusive means” to wiretap calls to or from the U.S. for national security reasons.

Scalia has seldom been a consensus builder on the court, preferring to stick with his own views rather than troll for votes. But his occasional alliance with the court’s more liberal justices could be struck again in future terror cases. The result would be an unequivocal declaration that executive power must yield to constitutional liberties, even when the nation is on the prolonged war footing we seem to have adopted.

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    Quite some time back I posited... (4.00 / 1) (#1)
    by Bill Arnett on Sun Nov 26, 2006 at 11:48:43 AM EST
    ...the theory that it may be the "strict constructionist" judges appointed by rethugs for years that may prove the undoing of this program and the MCA which took away habeas corpus.

    Scalia will indeed, IMO, rule against the warrantless wiretapping and, especially, against the MCA.

    He will rule on the wiretapping in accord with established law and will certainly agree that we are neither being invaded and are not in civil rebellion, the two prerequisites for suspension of habeas corpus.

    I thought at the time and still do think of the rich irony in this.

    Hoisted on their own petard!

    liberal in disguise? (none / 0) (#2)
    by Edger on Sun Nov 26, 2006 at 12:12:46 PM EST
    Contrary to the caricature, Scalia has delivered some surprisingly "liberal" opinions over the years. In 1989, three years into his tenure on the High Court, he ruled with the majority that flag burning was a constitutionally protected form of expression. (Centrist O'Connor and liberal John Paul Stevens were among the dissenters.) More recently, in Hamdi v. Rumsfeld (2004), Scalia joined Stevens in a dissent that went far beyond the majority opinion in arguing for drastic restrictions on executive power to detain terror suspects without due process. (His frequent ideological ally, Thomas, took the most pro-government position in a separate dissent.)

    --Antonin Scalia, Judicial Activist

    Your description of Scalia's dissent (none / 0) (#6)
    by Big Tent Democrat on Sun Nov 26, 2006 at 12:36:22 PM EST
    in Hamdi is not accurate in my view.

    It is worthy of a post. I may take it up.


    Not my description... (none / 0) (#8)
    by Edger on Sun Nov 26, 2006 at 12:41:58 PM EST
    ...but it was a question.

    I haven't followed his decisions very closely - I'm not a lawyer - I hope you do a post.


    Civil Libertarian? Hmmm... (4.00 / 1) (#7)
    by Pete Guither on Sun Nov 26, 2006 at 12:36:46 PM EST
    Taking a look at Scalia's opinion in Hudson does not give as much room for confidence.  There, he was somehow able to assert  with a straight face that increased levels of police professionalism make it unnecessary to be concerned about the potential for abuse.

    Just as we must "trust" the police to use their powers wisely in the government-asserted threat of drugs, he might make a similar argument that we must "trust" the government to act responsibly and only use their powers against the government-asserted terrorist threat.

    I would like to believe otherwise -- certainly traditional conservative principles would clearly oppose such governmental infringement on individual rights, but Scalia tends to use his principles to support his personal beliefs.

    Scalia and Hudson (4.00 / 1) (#10)
    by scribe on Sun Nov 26, 2006 at 02:05:55 PM EST
    RE the "increased level of police professionalism" Scalia trumpeted, I'm sure that will go down well with the families of the three men (the groom and two of his groomsmen) shot down leaving a club - apparently his bachelor party.  

    None of them were armed.

    None of them resisted arrest, nor did the police even try, it seems.

    The police fired a total of at least 50 shots.

    One of the shots hit a parked train a couple blocks away.

    One of the swine fired thirty-one shots.  From his service pistol.  (Which meant he reloaded, uh, at least twice.)

    The sum and substance of Scalia and his jurisprudence is that he can be relied upon to do - or write - whatever he deems to be in the long-term interest of enhancing the power and influence of Corporate America and his dear huntin' buddies in the Repug party.  That includes enhancing the power of organized religion, of which he is a huge supporter.  He usually goes off on one of his tirades in favor of individual rights only when it is clear (a) his vote will not make a difference in the outcome or (b) he needs to throw some meat to the screamers.

    Most of what he writes is dicta, anyway.


    heartily disagree (none / 0) (#3)
    by Big Tent Democrat on Sun Nov 26, 2006 at 12:18:25 PM EST
    with Mr. Turow who will discover otherwise about Scalia.

    why? (none / 0) (#4)
    by Edger on Sun Nov 26, 2006 at 12:22:00 PM EST
    Because Scalia (none / 0) (#5)
    by Big Tent Democrat on Sun Nov 26, 2006 at 12:35:24 PM EST
    is no true originalist, an empty phrase in any event, who has shown no indications of seeing a limited Executive powe rin wartime, imo.

    I have written on Scalia's intellectual disingenuousness in the past, including a post here at TalkLeft.


    I agree (none / 0) (#9)
    by squeaky on Sun Nov 26, 2006 at 12:42:37 PM EST
    Scalia's 'originalism' is a smoke screen. He took a bite of the apple long ago and that put his wayback machine permanently out of order. He does whatever he wants. Mostly a wingnut appeaser, certainly not to be trusted to do the right thing.

    The legal realist in me (none / 0) (#11)
    by Molly Bloom on Sun Nov 26, 2006 at 02:25:33 PM EST
    says Scalia will vote whichever way he percieves helps the conservative cause and justify it with some pretext of constitutional philiosphy.

    For the laymen see this fairly shallow discussion (got to start somewhere) and keep in mind, while Posner claims he is a legal realist, Frank, Arnold, Llewellyn et al, would most certainly dispute the claim and note Posner's pose is exactly what they railed about.  


    Thanks... (none / 0) (#12)
    by Edger on Sun Nov 26, 2006 at 03:31:55 PM EST
    Pete, Scribe, Molly, Squeaky, & Big Tent... most everything else I find on the web about Scalia supports what you've all said here except the one article I linked to earlier. It appears he relies much less on reasoning and constitional rights and safeguards than on his compassionate(?) conservatism. Hell of a guy to have making law. A real sweetheart.

    the concept of (none / 0) (#13)
    by cpinva on Sun Nov 26, 2006 at 09:43:00 PM EST
    "original intent", or "strict constructionism" is a farce. the first constitutional convention left no written record of the proceedings, save the final version of the constitution itself. there are no committee hearing minutes to refer to, as there are presently, when attempting to divine legislative intent.

    all that remains are the personal recordations of the individual participants. these do not represent the intent of the whole, merely that of the solitary author's.

    to infer meaning of the whole, from these disparate parts, penned well after the fact, is to perpetrate a fraud on the country.

    simply put, we have no clue what the supposed original intent was, save that printed. i think this was done intentionally, to force the document to be a living, growing thing, as opposed to a stale, lifeless piece of parchment.

    for scalia, or any jurist, to opine an adherence to "original intent" is to admit he hasn't a clue.

    And then (4.00 / 1) (#14)
    by aw on Sun Nov 26, 2006 at 09:51:04 PM EST
    you can get into that can of worms regarding what the original intent was towards women and slaves.  

    Not to mention (none / 0) (#16)
    by scarshapedstar on Mon Nov 27, 2006 at 08:40:16 PM EST
    The original intent regarding the right to own flintlock rifles.

    Sorry to crash the party (none / 0) (#15)
    by scarshapedstar on Mon Nov 27, 2006 at 05:54:51 PM EST
    Let's keep in mind that this guy thinks we don't even have a right to vote, shall we?