The James Wilson Foundation on Natural Rights and the American Founding

“Scalia’s Death Has Liberal Justices Smelling Blood”–Garrett Snedeker in The Federalist

Writing in The FederalistGarrett Snedeker details the state of oral argument at the Supreme Court in the weeks after the passing of Justice Scalia. Snedeker argues Scalia’s absence has left the liberal justices less restrained, with their conservative colleagues bearing a greater burden than ever before to sustain conservative arguments. Some excerpts:

“In the first couple of weeks since Scalia’s death, we are witnessing an unchecked and at times unhinged liberal quartet, whose positions will be less challenged because of Scalia’s absence. That is, unless Chief Justice John Roberts and Justice Clarence Thomas participate more openly and frequently in oral argument.”

“One interaction, bears close attention. To counter the liberal notion that the entire justice system would join a conspiracy to issue more warrants so police could stop and search nearly anyone, Alito suggested to counsel for the accused, “Do you think the judges in traffic courts are going to start issuing lots of warrants because they want to provide a basis for randomly stopping people?” For purposes of analogies, it was not a bad way of phrasing it, though as you will see soon, it may not have been the best analogy. But before the counsel for Strieff could respond fully, instead of correcting the analogy and seeing her colleague’s concerns in the best possible light, Sotomayor turned passive-aggressive on her colleague. ‘I’m very surprised that Justice Alito doesn’t know that most of these warrants are automatic. If you don’t pay your fine within a certain amount of days, they’re issued virtually automatically.’…While the liberal justices have never held anything back in oral argument, personal slights such as how Sotomayor treated Alito are exceedingly rare. If there are any personal disagreements about conduct or character, they are almost always addressed out of the public view. Sotomayor could have presented another analogy or simply corrected Alito, but Sotomayor preferred to deploy a personal slight.”

“A more lasting goal for the liberal justices, in more and more of these contentious cases, is to leave an imprint on the future Court and its perception. The magic number for them is not their current four, but rather five. As the progressive giant, the late Justice William Brennan, once said, ‘With five votes you can do anything around here.’ From their displays the last two weeks, it is as if they are signaling President Barack Obama to nominate someone…anyone…to replace Scalia, get him or her confirmed, and then the liberal bloc will do the rest. Thus, the feeling they wish to impart is one of momentum: that the liberal arguments have it and the conservative ones do not.”

“The conservative justices cannot only argue their own questions. They must point out when liberal justices rely on faulty reasoning. Just as Sotomayor was lying in wait to shame Alito in the Strieff oral argument, the conservative justices must respond immediately to the unmoored jurisprudence that emanates regularly from the liberal justices. Attack the ideas and the reasoning, never the justice offering them. Scalia was marvelous at this, but now with his vacancy, one can hope Roberts and Thomas find a newfound sense of duty to fill that void.”

Read the full piece “Scalia’s Death Has Liberal Justices Smelling Blood.”

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790