If you share Scalia's view of such decisions as Casey, Romer, Dickerson, Stenberg, Lawrence, et al, then it is altogether rational to deploy a rhetoric that exposes the essential fraudulence of the Court's claim to be interpreting the Constitution. (One assumes that the justices themselves are part of the audience to which he means to expose it.) What Justice Scalia is trying to do, in other words, is to demystify the Court; to suggest that it is engaged in exercises of raw judicial power. (Part of that power consists of our ignorance of the fact.)Someday, if I eat all my veggies and pray very hard, I might be that good a writer. Probably not, but I can dream, can't I?
Justice Scalia is not alone in seeing things this way. From time to time, the liberal justices accuse conservative majorities of raw politics as well, with heated rhetoric. (Pick a federalism case and read the dissents.) And Scalia's aspersions against the legitimacy of the Court's "constitutional law" reflect a half-century of conservative rhetoric on the judiciary. That rhetoric still underlies the Republican party's position. Every Republican senator who says he wants a judge who will "apply" rather than "make" the law is implicitly accusing some judges of exceeding their legitimate powers.
To reject the Broder-Sullivan critique of Justice Scalia, in short, is to begin to see something important about modern judicial politics — something to which the good justice is trying to awaken us.
Tuesday, July 01, 2003
And, on a related note, Ramesh Ponnuru rocks:
Posted by Thomas H. Crown at 12:54 PM