Scalia in Romer...

[Nelson Lund]

If a justice (or the Court) votes in favor of the petitioner in one case 
and in favor of the respondent in another, has he or it "switched 
sides"? Or is that somehow different from saying that a vote in favor of 
"individual rights" in one case and against "individual rights" in 
another constitutes "switching sides"?

Nelson Lund
George Mason


Steven Jamar wrote:

>
> To find contradictory or inconsistencies in Scalia's opinions is not 
> difficult.  Indeed most of the justices are inconsistent if one 
> chooses to either take them at their word or  views decisions at a 
> level of abstraction perhaps different from that used by the justices 
> themselves.
>
> Cases in point:  Boumediene and Heller.  Both uphold individual rights 
> against the government (habeas and bearing arms, respectively).  But 
> only one justice (Kennedy) was in the majority in both cases which 
> split 5-4.  Scalia made the most egregious argument in Boumedience -- 
> that the court's decision would result in more deaths to U.S. 
> citizens, but somehow was able to ignore that very same argument in 
> the gun control case. 
>
> As I said, if yoiu view it from this level of abstraction you see both 
> consistency in the court (uphold individual rights against the 
> government) and inconsistency in the individual justices. 
>
> This level of abstraction is, of course, not necessarily the correct 
> one to use to understand why the justices switched sides in the cases 
> -- though one could argue that it is exactly the correct one to use to 
> understand what the court as a corporate body did or "believes."
>
> Scalia regularly claims to defer to majoritarian branches, and 
> regularly does not do so.
>
> Close decisions turn on small things and weighings of often competing 
> policies and rules -- while I happen to think as a matter of 
> constitutional law both Boumediene and Heller are correct (I like one 
> and not the other as a matter of policy, though), I also think both of 
> them could have been decided the other way without really doing 
> significant violence to the constitution.  They were close cases. 
>
> Steve
>
>
> On Thu, Sep 11, 2008 at 12:58 PM, Aaron RS Lorenz <alorenz at ramapo.edu 
> <mailto:alorenz at ramapo.edu>> wrote:
>
>
>     Can someone help me understand Scalia's dissent in Romer?  The
>     quote below is Scalia's.  Did he have evidence of any "perceived"
>     (or otherwise) social harm of homosexuality? 
>
>     "remains to be explained how §501 of the Idaho Revised Statutes
>     was not an "impermissible targeting" of polygamists, but (the much
>     more mild) Amendment 2 is an "impermissible targeting" of
>     homosexuals. Has the Court concluded that the perceived social
>     harm of polygamy is a "legitimate concern of government," and the
>     perceived social harm of homosexuality is not?"
>
>     I am doing research and part of it is comparing Scalia's dissent
>     in Romer with his dissent in Lawrence and they seem contradictory
>     at times.
>
>     Thanks,
>     Aaron
>
>
>     Aaron R.S. Lorenz
>     Assistant Professor 
>     Law & Society Program
>     Ramapo College
>     Mahwah, NJ  07430
>     201.684.7732
>     alorenz at ramapo.edu <mailto:alorenz at ramapo.edu>
>
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>
>
> -- 
> Prof. Steven Jamar
> Howard University School of Law
> Associate Director, Institute of Intellectual Property and Social 
> Justice (IIPSJ) Inc.
>
>
>
> -- 
> Prof. Steven Jamar
> Howard University School of Law
> Associate Director, Institute of Intellectual Property and Social 
> Justice (IIPSJ) Inc.
>
>------------------------------------------------------------------------
>
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