Antonin Scalia

[jimmy eat jazz]

If you say so. A cursory search of the quote says you are wrong:

The primary point of contention between Hamilton and Brutus was in the well-founded concern that judges would substitute their will for the plain text of the Constitution, as exemplified by the Supreme Court's de facto revision of the Eleventh Amendment.[11] Hamilton conceded that no federal judge had the legal authority to impose his or her will on the people in defiance of the Constitution:
https://en.wikipedia.org/wiki/Federalist_No._78

But doesn't Hamilton's quote presume some consensus on what the Constitution has to say, or what it means, and thus where this consensus does not exist, then judges have greater leeway to 'impose their will' (to use the same phrase)based on what they understand the Constitution to say/mean?

My sense is that areas where such consensus exist are small relative to where it does not. Thus, originalism, as a practical guiding judicial philosophy for modern society simply cannot work in all cases.

 

[♪alt13]

If you say so. A cursory search of the quote says you are wrong:

The primary point of contention between Hamilton and Brutus was in the well-founded concern that judges would substitute their will for the plain text of the Constitution, as exemplified by the Supreme Court's de facto revision of the Eleventh Amendment.[11] Hamilton conceded that no federal judge had the legal authority to impose his or her will on the people in defiance of the Constitution:
https://en.wikipedia.org/wiki/Federalist_No._78

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. ...

Sorry, but it is clear you don't know your history or ignore it.

Done.

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.

Really just read more than a paragraph, avoid the cliff notes, and wikipedia next time.

You must be the one that is ignorant of history because you keep asserting that anything but an originalist interpretation is exercising a Justice's personal will. You seem to have missed the fact that there were centuries of common law precedence and a well developed process for setting new precedent through litigation at the time of the founding. The framers(most of them lawyers trained in common law) chose, by design, to use this process to interpret the Constitution. That's why the Supreme Court has that responsibility. This has nothing to do with exerting a Justices personal will.

 

[Nate505]

Scalia went off of past precedent in that case. There was a case in the 30s or 40s (Filbur, Wilbur, Filbert, I can't remember the name) that gave Congress power under Interstate Commerce to regulate one persons wheat field that was only used for himself. My grandparents had the Government come and kill some of their cattle meant for personal use under the same principles back in the 30s. Don't blame Scalia for following the law that was already there. He actually limited Interstate Commerce in many cases, but due to the similarity to the past case law, I believe he felt he had to rule that way.

Edit: I looked up the older case, Wickard v. Filburn.

I can definitely blame him for that one, especially when Thomas, Rehnquist, and O'Connor dissented and used pretty sound Constitutional principles to dissent. There is no honor in affirming a decision that was bad.

Oddly enough United States vs. Lopez put limits on what constitutes interstate commerce, and Scalia ruled in favor of that decision. That one involved guns. The Raich decision involved weed. I'm sure he felt he had to rule that way because guns are good and drugs are bad.

 

[AtheistPreacher]

Apparently Scalia was quantifiably the Supreme Court's funniest Justice:

https://www.politifact.com/punditfa...t-scalia-told-more-jokes-and-got-more-laughs/

By the numbers, Breyer is the new king of laughs.

 

[sirkickyass]

Fwiw it took almost 8 months for Kennedy to get sworn in following Lewis Powell stepping down, due to the failed nomination of Bork. Not quite the same situation, but worth noting.

Bork also was put through the confirmation process and was taken out on the merits of his candidacy. That wasn't obstructionism.

Scalia went off of past precedent in that case. There was a case in the 30s or 40s (Filbur, Wilbur, Filbert, I can't remember the name) that gave Congress power under Interstate Commerce to regulate one persons wheat field that was only used for himself. My grandparents had the Government come and kill some of their cattle meant for personal use under the same principles back in the 30s. Don't blame Scalia for following the law that was already there. He actually limited Interstate Commerce in many cases, but due to the similarity to the past case law, I believe he felt he had to rule that way.

Edit: I looked up the older case, Wickard v. Filburn.

This is some weak sauce. Scalia is literally one of the only people who was in a position to say that Wickard v. Fillburn was bad law and should be overturned. We're in a period of positive press coverage, but Scalia's supposed internal consistency is being overstated.

Apparently Scalia was quantifiably the Supreme Court's funniest Justice:

https://www.politifact.com/punditfa...t-scalia-told-more-jokes-and-got-more-laughs/

By the numbers, Breyer is the new king of laughs.

He was also the only justice that was actually three toads in black robe. True facts. Source: I'm a lawyer.

 

[colton]

Bork also was put through the confirmation process and was taken out on the merits of his candidacy. That wasn't obstructionism.

Agreed. I was just pointing out the time frame involved.

And that's what I think the Republicans should do here...Not be obstructionist but rather sincerely consider the people that Obama nominates and have up/down votes accordingly. If he nominates ones that are far too liberal for the Senate to approve, then I don't have a problem with them voting the nominee down. But if he nominates a more moderate one, then they should go ahead and approve him/her instead of automatically voting the nominee down just to be obstructionist, and on the chance that Republicans might control the White House next year.



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[sirkickyass]

Agreed. I was just pointing out the time frame involved.

And that's what I think the Republicans should do here...Not be obstructionist but rather sincerely consider the people that Obama nominates and have up/down votes accordingly. If he nominates ones that are far too liberal for the Senate to approve, then I don't have a problem with them voting the nominee down. But if he nominates a more moderate one, then they should go ahead and approve him/her instead of automatically voting the nominee down just to be obstructionist, and on the chance that Republicans might control the White House next year.



Sent from my HTC6500LVW using JazzFanz mobile app

Unfortunately they might have poisoned the well already to the point that it would be difficult to distinguish good natured objections to pure obstructionism. Would you agree that if Obama nominated a circuit court judge that the Senate had previously approved 97-0 that there would be no good faith basis to deny the confirmation?

 

[colton]

Unfortunately they might have poisoned the well already to the point that it would be difficult to distinguish good natured objections to pure obstructionism.

Agreed.

Would you agree that if Obama nominated a circuit court judge that the Senate had previously approved 97-0 that there would be no good faith basis to deny the confirmation?

Not necessarily... there's more data available now that they didn't have previously (namely his/her record as a circuit court judge), and the Senate makeup is different now as well.

 

[Deleted member 365]

After 20 years of a regressive Supreme Court I'm ready for 20 years of a Progressive one.

Just sayin