Someone on Conlawprofs posted a query asking whether the late Justice Antonin Scalia, who died yesterday at a vacation resort, his body having been found in the morning, was a good judge. The other professor suggested that Scalia was not so hot because he didn't follow the precepts of legal philosophers and other too-deep thinkers named Dworkin, Bobbit and someone else, oh, Ludwig Wittgenstein, a German speaking Swiss, as I recall.
However, we don't appoint justices by their lights and few of us, even if we're conversant with their views, would find it practical or relevant to evaluate our Supreme Court judges by their lights.
So I posted the caption question, whether anyone is a good judge, and then the following:
"Depends on whom you ask.
Conservatives want a reliably conservative justice, not some tipweight in the middle of an otherwise 4:4 court.
Liberals the reverse.
Earl Warren disappointed Eisenhower “My worst mistake.”
Souter disappointed conservatives.
SDOC disappointed people who wanted to see broad principles underlined, not what they considered salami-slicing differences.
Since appointments don’t seem to be based on the nominee’s views as to Wittgenstein, Bobbitt, or Dworkin, or even to admit having read, or not read, Roe v. Wade, we have to ask what service an appointment performs to the president who nominates and the Senate which confirms.
A political function, I submit.
This justice will serve my political agenda and help perpetuate it far after I’m gone, is the theory.
Does this happen a lot?
I doubt it, people being people whom one cannot confine simply by the nomination and appointment process.
We’d like it if justices tended their knitting, didn’t accept outside employment, and otherwise minded the sensitivies of their canon of ethics, like not providing private consultations to appointing presidents, and the like.
As to how they vote, we take what we get; this is why we have nine, not one. As in a jury of twelve, we hope that sense prevails most of the time, over the long term and that the country remains stable. We don’t want people taking over federal buildings to express their grievances over the way the country was when they wuz young.
Scalia had beliefs? So do you and I.
Is it a sin to act on those beliefs?
You tell me.
Clarence Thomas has beliefs.
Alito has beliefs.
So does RBG.
John Marshall had beliefs. So did O.W. Holmes, Jr.
We’re all apt to dissent from any other person’s views some of the time.
One of the interesting questions is how RBG and Antonin Scalia were able to be such good friends for decades despite their clashing ideological differences.
I like to see creative disagreement.
After the pope met with the patriarch for the first time in a millenium, last week, I listened to an interview with a top U.S. cleric on NPR. His Eminence extolled the get-together at long last because now we can look forward to all-agreeing.
I don’t want all-agreeing.
It scares hell out of me.
I want Scalia and RBG disagreeing, so I can more readily see what’s at stake.
And I want them each to disagree as artfully and confrontively as possible.
Both have done excellent jobs, imho."
Incidentally, we shouldn’t lose sight of the fact that the U.S. Supreme Court is not the Municipal Court of Walnut Creek or San Pablo, places where I appeared often, where the local magistrate, as far as the local citizens were concerned, was the Supreme Court.
Our top court is our major legal policy making body.
Slightly different considerations may apply.
Perhaps you see it differently.
-rs
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