Strengthening Constitutional Self-Government

No Left Turns

Scalia as the leader of the pack?

The LAT’s David Savage worries that in the current session, Scalia could be more influential.

Discussions - 4 Comments

I am hereby confessing to being part of Scalia’s "cult-like" following. What Savage is worrying about is just what I am looking forward to as one bright spot in a political springtime that looks otherwise quite discouraging.

Hear hear! Having Scalia as "pack leader" would be the best possible outcome for our nation. Let’s hope it falls out just that way.

Guys like Savage hate it that Scalia is smarter than them. He understands the Constitution better, is more eloquent in defending his beliefs, and they know there’s nothing they can do about it except get a simple majority on the bench whose numbers trump Scalia’s logic and jurisprudence. Looks like those days are finally over.

Interesting article. Ralph Rossum at Claremont McKenna has written extensively on Scalia and he notes that Thomas and Scalia vote on the same side about 90%, even though they take different approaches. Scalia is a textualist, originalist or traditionalist depending upon your take, while Thomas has a natural rights bend, e.g., the Declaration is enacted through the Constitution. He takes these approaches because he sees them as less dangerous than those that advocate something like a living constitution that changes with the views of the people, even if not changed in words. What the article plays down are the additions of Roberts and Alito. Rehnquist was an activist with a somewhat conservative agenda, while O’Connor was less ideological, more pragmatic and felt she needed to be the swing vote in maintaining precedents of the last 30 to 50 years, particularly on social issues. Kennedy now plays the role of protecting precedent and a middling ground. There is some evidence to suggest that Thomas has had more of an influence on Scalia than the other way around. It may be the rather silent Thomas whom is willing to push the envelope, though with less rhetorical flourish than Scalia that is the lynchpin to a more conservative court than under the last CJ.

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