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Tuesday, March 23, 2010

But... but... it's original intent!

Adam Serwer of the American Prospect on Stevens, Sotomayor, Scalia and SCOTUS. Yes, today's post is brought to you by the letter "S."
Sotomayor's invocation of her experience as a Latina woman rankled conservatives, who want you to believe that there's an objective way to read the law that isn't colored by personal experience. This is why conservatives believe that the rulings they like are legitimate and the ones they don't are "judicial activism". The easy response of course, is that one couldn't imagine black judges ruling the way white judges did in a case like Plessy v. Fergueson.

While the argument isn't settled, it's plain that Sotomayor and Stevens are right that personal experience affects the way a judge rules, and that denying this, as Scalia would prefer, wouldn't prevent the kind of judicial tyranny Scalia thinks he's avoiding by telling everyone he's focused on the "Founder's intent". For example, in one recent First Amendment case, Scalia suggested that Christian crosses are appropriate memorials to the dead of other faiths:
"I don't think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that's an outrageous conclusion," Scalia said, clearly irritated by the exchange.
As the attorney in the exchange pointed out, It's patently obvious from the fact that people of other religions don't put crosses in their cemetaries that crosses are not universal symbols honoring the dead. They are Christian symbols that, in this case, honor dead Christians. Scalia is a Christian and obviously can't imagine it done any other way.

My ouija board skills aren't that great so I won't pretend to know what the "Founder's intent" was, but the Founders "intended" someone of my background to be property even as the ideas that underpin the Bill of Rights would suggest the opposite conclusion. Still, it's pretty clear that Scalia, for all his distaste of Stevens' invoking his "experience" in his opinions, does exactly the same thing. Except he and his supporters deny that he does it, which makes the danger that Scalia's reading of the law will be a matter of "whim" that much more likely. As long as those whims are right leaning, they're fine with it.

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