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Scalia flip flops

BobStackFan4Life

BobStackFan4Life

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Scalia is releasing a new book in which he finds fault with a Roosevelt-era Supreme Court decision that forms a critical part of the legal undergirding for the health care reform law. For Scalia, that’s a dramatic turnaround, because he has previously embraced the premise of that decision in an opinion he authored in 2005 that supporters of the health care law have frequently cited.
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Scalia himself cited Wickard in his 2005 opinion in Gonzales v. Raich, concurring with a 6-3 majority that said Congress may, under the Commerce Clause, prohibit a licensed medical marijuana patient from growing pot in his or her backyard even if it’s legal in the state. A central foundation for that sweeping federal power, the winning side argued, flowed from Wickard.

At the time, Scalia emphatically agreed, writing in his concurring opinion that “where Congress has authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”
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“I have always had the impression that Justice Scalia’s primary approach to judging is political,” Tim Jost, a professor of law at Washington and Lee University, told TPM. “Therefore, he will interpret the Commerce Clause broadly to support federal laws he likes but narrowly to strike down those he doesn’t.”
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http://tpmdc.talkingpointsmemo.com/2012/06/antonin-scalia-book-health-care-wickard-filburn-raich-constitution-commerce-clause.php?ref=fpnewsfeed
 
The last quote is the most obvious take and worst-kept secret regarding the Court.
 
94Deac said:
The last quote is the most obvious take and worst-kept secret regarding the Court.
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I'm sure some on here will take issue with it. Or find a (false?) equivalency with the behavior of the Dem appointed justices.
 
He is an extremist. He is farther to the right than anyone on the Court to the left.
 
Ruth Bader gives him a run for his $$.
 
UCLA law professor Adam Winkler, who is briefly quoted in TPM’s article about Justice Antonin Scalia’s reversal on the Constitution ahead of the ‘Obamacare’ ruling, explains in further detail why he believes the flip-flop is revealing.

Specifically, Winkler argues, the only thing that has changed since Scalia’s 2005 embrace of the New Deal-era ruling is the “political implications.”

He writes in an email to TPM:

This is typical Scalia. He respects precedents when they fit his conservative ideology and disregards them when they don’t. He claims that history should guide judges. But nothing about the history of the commerce clause has changed. What’s changed is the political implications of the commerce clause. When its being invoked for law and order conservatives, he favors Wickard. When invoked by liberals to support healthcare reform, he thinks Wickard is bad law. Once again, we see that Scalia’s originalism is a charade.
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http://livewire.talkingpointsmemo.com/entries/legal-scholar-explains-why-scalias-flip-flop-is
 
Least shocking political flip-flop ever. Don't these guys understand that their actions are memorialized and studied forever? You can't talk your way around your own statements on the record. Not when your sudden about-face is so clearly political. Apparently Scalia has no issue with being canonized as a political-motivated activist judge who changed his legal interpretations to support short-term preferred agendas. Most judges would bend over backwards to avoid such a legacy. I guess Scalia doesn't care about his place in history.
 
Arlington, if Thomas didn't recuse himself from voting on this case (where his wife is paid many times his salary to change the law), why would it bother Scalia to show himself to be a fraud?
 
RJKarl said:
Arlington, if Thomas didn't recuse himself from voting on this case (where his wife is paid many times his salary to change the law), why would it bother Scalia to show himself to be a fraud?
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I love every time you post this without mentioning that Kagan absolutely should have recused herself as well but didn't. It's a very amusing double standard.
 
Being able to describe how and why the bill was put together is different that being paid to vote against it. Kagan is a close call. Thomas isn't.
 
Scalia references Wickard once in his Raich concurrence, and other cases several other times. Granted, the citation for Wickard is pretty important.

Scalia is one of the brightest legal minds to ever sit on the court. To think that a guy pushing 80 hasn't challenged his own thinking is a bit ridiculous. With the Obamacare case in particular...well that one has gotta challenge the bounds of the commerce clause, even if you support it. As Scalia says himself, in some cases you simply respect precedent. At his age, I don't think he gives a fuck anymore. I doubt that he is concerned about contradictions during a 30 year career on the bench, but rather how the limits of federal power were defined or checked by his time on the bench.

Of all the jobs in our 3 branches, being a justice on the SCOTUS has to be-- by far-- the most intellectually challenging job of the three. You have to balance existing case law and precedent with new law while simultaneously determining when to respect precedent and when to dismiss it and being careful not to contradict not only the existing case law but also yourself. I love to read the SCOTUS decisions for that reason alone. To see how justices arrived at opposing positions on the same issue using the same precedents plays some serious gymnastics with my brain.
 
RJKarl said:
Arlington, if Thomas didn't recuse himself from voting on this case (where his wife is paid many times his salary to change the law), why would it bother Scalia to show himself to be a fraud?
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The two issues have nothing to do with each other. Thomas never deviates from his simplistic constitutional philosophy in his opinions. He's largely consistent in his stated interpretations. Scalia, on the other hand, is willing to write diametrically opposite takes on the same legal issue to suit whatever current purpose he is pursuing. Most judges won't put hypocrisy down on the record, because blatant hypocrisy is usually shaming. Scalia obviously doesn't give a rat's ass what people think of him, or how he will be judged by future generations. He has an agenda, and he's going to do whatever's necessary to effectuate it, even if it means making himself look foolish. He's an entirely political animal.

Hagan and Thomas both should have recused themselves. No way one was going to to do so without the other, however. In the end, it doesn't matter, since they will cancel each other out.
 
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RJKarl said:
Being able to describe how and why the bill was put together is different that being paid to vote against it. Kagan is a close call. Thomas isn't.
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No, Kagan is not a close call. Both were slam dunks for recusal, although I agree that Thomas is more obvious.
 
Spot the Wonder said:
There was no need for Thomas to recuse himself.
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It's hard to imagine a clearer cut case for recusal than Thomas. His family had a direct financial incentive regarding the law's outcome. That's bullet point one of things you should recuse yourself for. The appearance of impropriety is pretty much indisputable.

Kagan should have recused herself because of the appearance impropriety as well. She spent too much time advocating for the law in a previous position. It's a closer case, but the appearance exists, and that is the standard.
 
It also describes the entire historical jurisprudence of the Supreme Court. This particular Court is no different.
 
How is Thomas a slam dunk and not Kagen?

It should be the other way around.
 
Go said:
How is Thomas a slam dunk and not Kagen?

It should be the other way around.
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Yes, Thomas' family received the overwhelming percentage of their family income over the past two plus years to overturn the Affordable Care Act.

It's the most direct type of conflict of interest imaginable.
 
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