Wednesday, December 17
The new Holmes
Seriously, has a single judge's jurisprudence been the subject of this much academic examination since Oliver Wendell Holmes? It seems like there's a ton of law review articles scrutinizing Scalia's judicial decisions. Lexis reports 125 law review articles with "Scalia" in the title. This being the world of legal academia, most of it is hostile of course. Does Scalia drive law professors so crazy that they're just tripping over each other to be the first to catch him in some inconsistency?
I guess so. Law professors are smart people, and they're lawyers. Being lawyers, and being resentful new-class academics, they believe the world would be a better place if those who are by definition less-enlightened (i.e., everyone else) would just shut up and let them control it. Judges, like law professors, are also smart people and lawyers. Better yet, many judges (Scalia among them) are former law professors. Naturally, law professors see little to object to in judges writing the law, since they clearly do it better than legislators. Or (shudder) the people by referendum (remember the California judge who ruled that prohibiting affirmative action was unconstitutional). Scalia's influential advocacy of textualism and the separation of powers is a grave threat to this worldview. Hence the overwhelming rear-guard activity.