did Scalia (uninentionally of course) help the left (user search)
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  did Scalia (uninentionally of course) help the left (search mode)
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Author Topic: did Scalia (uninentionally of course) help the left  (Read 3575 times)
freepcrusher
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« on: June 11, 2021, 12:36:06 AM »

I don't think he was hated by his colleagues the way Douglas was - but I kind of wonder if his mere presence prevented the Casey Trio from siding with Rehnquist more often (and not just on casey but a lot of cases throughout the 90s).

Ironically, Reagan never assumed he would act as a repellant. They assumed he would serve the same function as William Brennan did (who could sway the Stewarts and Powells to go his way in important cases).
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freepcrusher
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« Reply #1 on: June 11, 2021, 06:53:52 PM »

Toobin & others have offered a similar such point in their writings, yeah: basically, Scalia simply wasn't willing to concede any sort of substantive ground to those justices whose approach to the law was the opposite of the originalist interpretation which he saw himself as chained to, as said approaches just aren't reconcilable. A justice whose ideology was the opposite of Scalia's could ask Scalia, "Can you give me X in this opinion?," & Scalia's response would be, "sorry, but the Constitution meant Z then & it means Z now," & if the justice to whom he was speaking then wanted to try & see if Scalia would at least be willing to meet in the middle at Y, Scalia would just repeat himself before going on to basically piss in the wind with a dissent. He just lacked an ability to compromise that even Rehnquist - or, at least, Chief Justice Rehnquist - didn't. But that's what can happen when you give lifetime appointments to ideological purists who sit on bottomless wells of self-righteousness, & it's the same with Thomas as well: "THOMAS, J., dissenting" might as well be the same as a bear sh*tting in the woods at this point. In any event, though, it's why Rehnquist was arguably able to achieve far more for the conservative legal movement in terms of outcomes than Scalia was: because Rehnquist, unlike Scalia, was actually willing to compromise, which is what could enable a conservative justice like him to actually have input on the decisions that - although he may not entirely agree with - still matter. It's basically a study of a pretty stark contrast between trying to get the law to where one think it should be by either inching one's way there or by rigidly adhering to one's ideological beliefs.

Quite, though I wonder whether in the long run his oratorical skills have managed to shift "conservative" jurisprudence in the direction of originalism; and hence get more originalists (i.e. any Republican appointee going forward) on the Court.

It's pretty clear to me the massive impact that Scalia's unbreakable commitment to his ideology and infamous loquaciousness in doing so have been massively influential on movement conservatism as a whole, especially in the judicial field. Since Scalia's appointment Republican presidents have largely sought to appoint more in his mold to the Supreme Court and inferior courts, although this hasn't always panned out as intended (Bork getting shot down by the Senate, Scalia associate Gorsuch being a far less ideological textualist, etc).

I'm really not sure what impact it's had on "movement conservatism" other than getting them to appoint originalists -- the result of which will be a change in jurisprudence; and only an incidental change on what politicians believe.

Much of the change lies in appeals to civil religion (see Scalia's use of Biblical allusions in his opinions) and the use of a nebulous and malleable perception of the original meaning of the Constitution as a defense for preconceived ideology, which had been germinating for some time but was brought into the spotlight by Reagan's courts and is now a fundamental part of American conservatism.

Of judicial "conservatism" perhaps, but I really don't see what the "original meaning of the Constitution" has to do with political "movement conservatism."


that's the thing. Wasn't Hugo Black sort of a "lefty originalist" by today's standards? Or rather he was a textualist but was still seen as part of the court's activist wing.
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