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NINOMANIA

:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::


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    [::..archive..::]
    ::

    :: Monday, June 08, 2009 ::
    A Talmudic maxim instructs with respect to the Scripture: “Turn it over, and turn it over, for all is therein.” The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed. 1935). Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not.

    -- Justice Scalia, dissenting in Caperton v. Massey

    Caperton was a lose-lose from the day it was filed. If it came out one way, it would mean judges "bought and paid for" by union bosses (I chill with NRTW lawyers from time to time, and they will be happy with this outcome) would continue to hear cases against union bosses. If it came out the way it in fact did, free speech in the form of campaign contributions would/will be chilled; i.e., the speech-defying McCain-Feingold project will be advanced.

    The separate dissents by Chief Justice Roberts and Justice Scalia dwell on a different problem altogether: the expansion of Due Process jurisprudence to cover something it had never covered before (with the narrow exceptions mentioned in the second paragraph of the Chief's dissent); in this case, judicial recusals. Recusal used to be discretionary. Now -- well, there are two ways to look at it. Either the Constitution began to cover recusals on June 8, 2009; or it always did and the Supreme Court only discovered this on June 8, 2009. Neither formulation speaks well for the intellectual seriousness of constitutional law.

    And this, in an opinion by Justice Kennedy. Who says Ted Olson doesn't know what he's doing, or worse, is being dishonest with his gay marriage lawsuit? In a year or two, the Supreme Court is going to claim to "solve" the gay marriage issue -- in favor, of course -- by a 5-4 vote with a Kennedy opinion. Get ready. (The Court's refusal to hear the Pietrangelo case is not to the contrary. Wrong case, wrong time, wrong aspect of the issue, wrong advocates.)

    :: David M. Wagner 2:26 PM [+] ::
    ...

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