Prof. Geoffrey Stone of U of Chicago law school destroys the dissenters

[hifiguy]

from marriage equality:

Assertions of this sort might be warranted if they were made by justices who actually believed in the principle of judicial restraint. There have, in fact, been justices in our history -- Justices Felix Frankfurter and John Marshall Harlan are examples -- who sincerely believed in judicial restraint as a matter of principle. In their view, justices of the Supreme Court should be modest in their interpretation of the Constitution, always giving the benefit of the doubt to the elected branches of government. Under this approach, justices should defer to the judgments of the elected branches -- unless their judgments clearly and unequivocally violated the Constitution.

If justices like Frankfurter and Harlan had written the words quoted above, one would at least have had to respect the sincerity of their commitment to the principle of judicial restraint. But Chief Justice Roberts and Justices Scalia, Thomas and Alito are in no way adherents to this principle. To the contrary, in decision after decision they exercise an often fierce form of judicial activism, a form of activism that is completely incompatible with their self-righteous paeans to judicial restraint in Obergefell.

These four justices, for example, have embraced and defended aggressive and wholly unrestrained interpretations of the Constitution in order to hold unconstitutional laws regulating campaign expenditures and contributions; they have joined in aggressive and wholly unrestrained interpretations of the Constitution in order to hold unconstitutional laws permitting affirmative action programs; they have joined in aggressive and wholly unrestrained interpretations of the Constitution in order to hold unconstitutional laws regulating the availability of guns in our society; they have joined in aggressive and wholly unrestrained interpretations of the Constitution in order to hold unconstitutional laws protecting the voting rights of racial minorities; and they have joined in aggressive and wholly unrestrained interpretations of the Constitution in order to hold unconstitutional laws designed to achieve racial integration in society.

Much more at http://www.huffingtonpost.com/geoffrey-r-stone/the-same-sex-marriage-dec_b_7679502.html

[spooky3]

1. Thank you for posting this. My impression of these four - Scalia in particular - is that

he decides, usually on reactionary or emotional grounds, the outcome he wants. He then tells his clerks to strain, squirm, or whatever it takes to develop something that resembles an argument to justify the outcome. So it is no surprise that many of his decisions are contradictory and unprincipled.

I would like to see more legal scholars "call it as it is" with Scalia and his friends. I have never understood why some think he is so bright, when he is clearly incapable of drawing logical conclusions, understanding and using empirical evidence, or applying the most basic principles, in order to decide a case. To say nothing of his complete moral emptiness...

[hifiguy]

2. Judge Richard Posner called out Scalia big time

in a review of Scalia's book a couple of years back: http://www.newrepublic.com/article/magazine/books-and-arts/106441/scalia-garner-reading-the-law-textual-originalism

Posner called him an intellectual fraud and a phony and backed it up. Scalia is nothing but a blowhard, Fred Flintstone or Ralph Kramden in judicial robes.

As Posner painstakingly explained, so even dullards could understand it, in his opinion of last summer in the WI and IN cases, this is hornbook equal protection law.

[spooky3]

3. I especially like this line: "OMITTING CONTRARY evidence turns out to be Scalia and Garner’s

favorite rhetorical device."

Thanks.

[First Speaker]

4. Posner is a genuine conservative, and as such anathema to frauds like Scalia...

...I'd be delighted if he--Posner--got the next Supreme Court appointment, just so we could see Scalia's head explode...

[hifiguy]

5. Posner cordially despises Scalia

and is intellectually honest.