Thank you for taking a look at this. If it weren't for the fact that I might have this Prof. for a teacher next term, I'd consider giving it a critique myself.

The biggest problem I had with the article is where he's making Scalia out to be counterproductive, as if his dissents somehow caused Goodridge. I can't imagine the fantasyland in which Massachusetts justices would have ruled otherwise on gay marriage, but were suddenly swayed by Scalia's prose.

Posted by A. Rickey at November 30, 2003 12:56 AM

A nice piece, Curmudgeon. My compliments to the chef.

The simple fact is that substantive due process is the camel who's gotten way more than his nose under the tent now. I may agree or disagree with the results reached as matters of policy; but as matters of constitutional law, substantive due process is indistinguishable from "we're pretending the Constitution sez this because we think that'd be really cool. Oh, and like, fair, man. Fair. Yeah."

Posted by Beldar at November 30, 2003 01:09 AM

Beldar is correct. Substnative due process has become the new Locher, allowing SCOTUS to act as a super-legislature which strikes down laws that are constitutional but not fashionable. Just as the conservative justices would strike down economic legislation with which they disagreed a century ago, so too do today's moderate/liberal justices do so to social legislation. Between that, O'Connor's newfound fondness for foreign courts, and the sentiment articulated in Grutter that constitutional analysis shifts with the times and mores, there is cause for concern, I would think.

George Will had an interesting quotation on this, which was:

"[U]nconstitutional" is not a synonym for "unjust" or "unwise," and the Constitution is not a scythe that judges are free to wield to cut down all laws they would vote to repeal as legislators. Legislators can adjust laws to their communities' changing moral sensibilities without creating, as courts do, principles, such as the broadly sweeping privacy right, that sweep away more than communities intend to discard.

(See this link for more from me on that quote.).

By the way, my favorite Scalia barbs are the ones on the use of legislative history. See Blanchard v. Bergeron, 489 U.S. 87, 97-98 (1989) (Scalia, J., concurring) (“What a heady feeling it must be for a young staffer, to know that his or her citation of obscure district court cases can transform them into the law of the land, thereafter dutifully to be observed by the Supreme Court itself.”); United States v. Taylor, 487 U.S. 326, 345 (1988) (Scalia, J., concurring in part) ("[I]it must be assumed that what the Members of the House and Senators thought they were voting for, and what the President thought he was approving when he signed the bill, was what the text plainly said, rather than what a few Representatives, or even a Committee Report, said it said. This text is eminently clear, and we should leave it at that."); see also Conroy v. Aniskoff, 113 S. Ct. 1562, 1567 (1993) (Scalia, J., concurring) (stating that Court should not have consulted legislative history once it concluded that statute was unambiguous and unequivocal because "that is not merely a waste of research time and ink; it is a false and disruptive lesson in the law").

Posted by Dedman at November 30, 2003 06:44 AM

Not to nitpick on a great post, but this passage struck me as odd:

Justice Scalia views his colleagues' approach to some issues—such as abortion, affirmative action, and gay rights—as not merely different from his own, but as fundamentally illegitimate.

Dorf's suggestion is both right and wrong. Scalia's textualism is on display in dissents in any number of lower profile cases.

I didn't see Dorf's statement as an assertion that those were the only issues where Scalia thinks the other side is "fundamentally illegitimate."

With that nitpicked (hopefully in a successful manner!), I agree with the subsstance of the post.

[PS - For all the champions of Scalia... where was he in FDA v. Brown & Williamson, 529 U.S. 120 (2000), a case where the majority opinion (in which he joined) probably got it right... but seemed to do everything BUT take a swipe at the plain meaning of the statute's text.]

Posted by mr p at November 30, 2003 08:58 AM