Charles Krauthammer has a column in the Post about the differences between Justice Scalia and Justice Thomas. In the process, he points out how easy it is for politicians and advocacy groups to distort judicial rulings and why you should never accept at face value that an opinion is wrong just because you or someone else doesn't like the result:
Justice Thomas: "Dope is cool."Justice Scalia: "Let the cancer patients suffer."
If the headline writers characterized Supreme Court decisions the way many senators and most activists and lobbying groups do, that is how they would have characterized the Supreme Court decision this week on the use of medical marijuana in California. It was ruled illegal because the federal law prohibiting it supersedes the state law permitting it. Scalia agreed with the decision. Thomas dissented.
In our current, corrupted debates about the judges, you hear only about results. Priscilla Owen, we were told (by the Alliance for Justice), "routinely backs corporations against worker and consumer protections." Well, in what circumstances? In adjudicating what claims? Under what constitutional doctrine?
The real question is never what judges decide but how they decide it. The Scalia-Thomas argument was not about concern for cancer patients, the utility of medical marijuana or the latitude individuals should have regarding what they ingest.
Spot on. So as I've been urging for the last few weeks, in the upcoming Supreme Court confirmation battle, don't listen to what any group says about a nominee's previous rulings or legal writings without reading them for yourself. And that includes groups that you might otherwise agree with, whether it's People for the American Way or the American Center for Law and Justice or anyone else.
Krauthammer goes on to discuss one of the big differences between Scalia and Thomas, which is that Scalia puts far more weight on precedent even if he thinks those precedents are wrong, while Thomas pretty much ignores stare decisis. In that, I tend again to agree with Thomas. Badly reasoned decisions, like the Slaughterhouse cases, continue to distort our jurisprudence. If they are wrong, they should be overturned.
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From the atricle:
"Two years ago, Thomas (and Scalia and William Rehnquist) dissented from the court's decision to invalidate a Texas law that criminalized sodomy. Thomas explicitly wrote, "If I were a member of the Texas Legislature, I would vote to repeal it." However, since he is a judge and not a legislator, he could find no principled way to use a Constitution that is silent on this issue to strike down the law."
I would rather ask the question:
"Where in the Constitution can you find the power to criminilize something on which the Constitution is silent"?
Good reading on the courts as instruments for social change - Gerald Rosenberg's The Hollow Hope.
Read? For yourself? Something complicated like a judge's ruling on a case?
Now why would anyone (on the left or right) want to do that?? Tossing out the label 'activist judge' is so much less messy than weighing things like context...
John,
If we were talking about a federal law, yours would be the right question. Since we are talking about a state law, your question is exactly the wrong question to ask. States don't need sanction from the Constitution to pass laws; they are presumed to retain all rights not explicitly taken by the federal government. To get the Constitution involved, there has to be a right at issue that allows the Justices to strike down otherwise valid legislation.
I think Justice Thomas had it exactly right in that case.
By the way, Ed, I responded to your comment below about the Ninth Amendment. I'll have much more time to debate such matters in about a week; let's not let the discussion die entirely. It's a pleasure to debate issues like this with someone who disagrees with you, but is intelligent and reasonable and would never stoop to nasty invective. I don't get a lot of that kind of debate, so I seek it out when I can.
Patterico,
I would like the read more on your view of ninth amendent.
It seems to me that Scalia takes the same view. (At least he did in the granparent's rights case, in Washignton, I think). In that case, if I am interpreting correctly, he said that he agreed the law was contrary to the ninth amenendment, but the court should not enforce that amendment.)
I disagree with that.
By this reasoning if the socialist dominated legislature here in California decided to outlaw the consumption of animal products (or whatever wacky alternative you'd like) it would be perfectly acceptable since the right to eat meat is not specifically enumerated in the US Constitution.
No. Use your logic. John said that states need explicit constitutional authority to pass laws; I responded that under the Constitution, states don't need such authorization. The states are presumed to retain all authority not granted to the federal government. That is a state vs. federal government issue.
You are discussing a rights vs. government authority issue. Different question entirely.