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Archive for Thursday, August 2, 2012

Justice Scalia has star power

August 2, 2012

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Once, again, Justice Antonin Scalia has lived up to his growing reputation for speaking his mind in public. On Sunday, Justice Scalia went on television to talk about the things that matter to him at the moment, including the majority opinion in the Supreme Court’s recent decision in the Affordable Care Act and the appropriateness of permitting cameras in the Supreme Court to record and televise Supreme Court proceedings.

It will come as no surprise to anyone who follows the court and its justices that Justice Scalia had nothing good to say about the ACA decision. His dissent in the case was scathing. His comments since only repeat his utter disgust with the decision and Justice Roberts’ opinion invoking the federal government’s tax powers to uphold the core portions of the law. As to whether to permit cameras in the Supreme Court Justice Scalia made it clear that he is totally opposed to the idea.

Justice Scalia has been on the Supreme Court for a quarter of a century. During his long tenure he has staked out a position as a conservative, a constitutional originalist, and as a justice not afraid to say what he thinks both in his opinions and in the public forum. He loves to give speeches about his views and he is a spirited debater. He is also one of the most brilliant judges in the nation. His outspokenness as well as the substance of his opinions has made him many enemies. The tradition at the Supreme Court has been one of judicial discretion. Justices in the past rarely spoke about the Court’s deliberations in public.

For the most part, Supreme Court opinions were technical and dry in style. Justice Scalia not only has a brilliant legal mind but he has a bold writing style. When he mounts an attack he can be savage. His skills as a debater are legendary. He is a master of irony. In other words he can be an exceptionally effective advocate for his opinions. In recent years he has increasingly used his rhetorical and debating skills not only to criticize lawyers before the court whom he thinks are wrong but also his own colleagues on the court and, most recently, President Obama.

Justice Scalia’s increasing outspokenness has led to calls for his removal from the court. These demands do not seem to bother him at all. Supreme Court justices are not subject to the rules of professional conduct by which other judges must live. The only real legal constraint on Supreme Court justices is the impeachment power, a power which has almost never been used. Statements that Justice Scalia has acted unethically are meaningless if one is referring to judicial ethics. Further, while Justice Scalia may infuriate his critics by his written and spoken statements it is quite clear that they do not constitute the “high crimes and misdemeanors” necessary to secure an impeachment.

Of course, Justice Scalia knows this. He is quick to tell the press that he has life tenure and can say what he likes and be indiscreet if he wishes to be. The fact is, whether one likes Justice Scalia or not, he will stay on the Supreme Court of the United States as long as he is able and willing to do so.  Given that, we can be sure that the good justice will continue to speak his mind and, at the very least, give reporters and commentators plenty of material to write about. In that light, I have to say that I think that it is unfortunate that he opposes televising Supreme Court proceedings. I think if cameras were allowed in the courtroom the Supreme Court might well find a place among the ranks of reality television shows and Justice Scalia would find that he was a star.

Mike Hoeflich, a distinguished professor in the Kansas University School of Law, writes a regular column for the Journal-World.

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