Scalia ranks Kelo with Roe and Dred Scott as politically wrong SCOTUS decisions
rs at robertsheridan.com
Fri Oct 21 10:04:48 PDT 2011
When worlds collide there are survivors who keep battling on amidst the debris.
In a large sense, all Supreme Court opinions reflect world-views, expressed as political movements first, in conflict; here are a few, from:
1. The Federalists to the Anti-Federalists;
2. Strong central government versus not-so-powerful, decentralized;
3. Capital, Social Darwinism, and "Freedom of Contract" versus Labor; the Lochner-era of conservative activist-judges;
4. Reversal of the Lochner era reign of conservative judges, in the so-called (by some) Revolution of 1937 including, e.g., Caroline Products and Fn-4, followed by the New Deal or FDR court; see Scorpions, Noah Feldman's review of that court in terms of the lives and views of Frankfurter, Black, Douglas, and Jackson.
5. The mighty struggle of conservatives, especially since Roe and Nixon, to reverse this; and coming very close; typically a one-vote O'Connor or Kennedy margin, in recent decades;
6. Government power over individual life choices versus the right of the individual to choose w/o the heavy hand, or long nose, of the neighbors acting through government;
7. The postwar civil rights revolution: Shelley, Brown, the Civil and Voting Rights Acts of 1964, 1965...;
8. The privacy revolution: Olmstead, Griswold, Roe...;
9. The criminal law and procedure revolution beginning with the Warren Court;
Lord knows all I've left out, but those are the ones that occur first.
How would you cut up the melon?
For Scalia to decry, if that's what he's doing, a few decisions that he regards as being especially political, suggests that he may be leaving out the rest because he sees them fitting more easily into the spirit of their time; that doesn't make them any less political, only less unorthodox.
So, is Scalia the champion of orthodoxy in any age and time? Or does he only reject the nails that stick out and need hammering down as he views matters today?
Today anyone can decry the pro-slavery, anti-humane, anti-black, Dred Scott decision; it's like bravely opposing any of the policies of Hitler, especially the final solution, after noticing the Holocaust. I don't see Kelo in this league, somehow. A conservative whose taxes were rising and land being threatened for the betterment of his alleged neighbors might hoppingly take the contrary view.
Scalia is such a worthy debater who needs constant straightening out, don't you agree? But I can't help loving his anti-hearsay and pro-5th amendment jurisprudence.
On Oct 21, 2011, at 4:53 AM, Steven Jamar wrote:
> Prof. Steven D. Jamar vox: 202-806-8017
> Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org
> Howard University School of Law fax: 202-806-8567
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