Scalia: Judicial Activist

If you ever hear a conservative decry judicial activism yet offer praise for Antonin Scalia, please call them out on it.  It is hard to imagine a more egregious example of judicial activism than Scalia’s performance in oral arguments over the Voting Rights Act.  The idea behind judicial activism is that judges insert their views in the place of democratically-elected officials.  Sometimes, this is clearly appropriate (e.g., Brown v. Board of Ed), but there’s something to be said for the idea of deferring to the duly-elected representatives of the people unless you’ve got a very clear and compelling reason not to.  Then again, if you are Scalia, not so much.  The Post editorial sums it up nicely:

“It was clear to 98 senators, including every senator from a covered state, who decided that there was a continuing need for this piece of legislation,” Justice Elena Kagan said, in what might seem a self-evident point.

But not to Justice Scalia. “Or decided that perhaps they’d better not vote against, that there’s . . .none of their interests in voting against it,” he said. Later he elaborated on why he feels free to dismiss this particular congressional action: “I don’t think there is anything to be gained by any senator to vote against continuation of this act. . . . They are going to lose votes if they do not reenact the Voting Rights Act. Even the name of it is wonderful: the Voting Rights Act. Who is going to vote against that in the future?”

This is a stunning line of argumentation. Congress is empowered to write legislation enforcing the Fourteenth and Fifteenth Amendments. But if Justice Scalia doubts the purity of lawmakers’ motives, then apparently this power is limited. We wonder how the justice is able to discern what lay within the hearts of these 98 senators. We also wonder how many challenged acts of Congress would survive if the court saw fit to strike down any that were enacted by lawmakers considering, in part, their reelection prospects.

Indeed.  Also note, how easily the Post eviscerated Scalia’s logic here.  I’ve just never understood this cult of Scalia the brilliant jurist.

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Photo of the day

Very cool collection of photos from when the White House was completely gutted during a 1950 renovation (I had no idea).

Window openings provide bursts of light into the cavernous interior of the White House, supported only by a web of temporary steel supports. The exterior walls rest on new concrete underpinnings, which allow earth-moving equipment to dig a new basement. (National Archives)

Hard to believe that’s the White House.

On journalistic position taking

Among most political journalists, there is a strong norm of not taking a side, which all too often results in the knee-jerk centrism, “both sides are wrong” or “both sides do it” approach that so distorts the reality of American politics.  I love the point Tomasky makes here that this approach is absolutely advocating a point of view:

Someone like Fournier probably thinks that he’s not supposed to take positions. But in these three columns, he took a position whether he knows it or not: He took the position that a president who has cut spending three times as much as he has increased revenue, and whose current offer, a mostly even mix of cuts and revenues, is backed by three-quarters of the American people, is being no more reasonable than a minority party that says our way or the highway whose position is supported by 19 percent of the people.

Those positions are not equivalent. To write as if they are equivalent is to perpetrate a lie. [emphasis mine] Or at least two lies: in the immediate case, the lie that the Republicans are engaged in anything resembling good-faith bargaining; and in the broader sense, the lie that the GOP is a normal political party by our historical norms, just a slightly more intense version of the Democrats of the 1980s or the Whigs of the 1840s. They are not that.

As long as journalists keep pretending that this approach is somehow not taking a point of view or “playing it down the middle” they are doing a huge disservice to the American public.

 

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