Antonin Scalia

Good Analyses of the Supes' D-Day Massacre…


… can be found over at SCOTUSblog.

At the Volokh Conspiracy, David Bernstein kicks off his Raich deconstruction with a sharp slap of observation—"The five-member majority of the Court simply does not take federalism seriously"—and then goes on to rip Antonin Scalia a fresh new orifice:

This reflects a pattern with Scalia, apparent also in his affirmative action, First Amendment, and other opinions: he is much more likely to resort to originalist arguments when they can be used to undermine Warren Court precedents that conflict with his deeply held moral and political views than when such arguments would either undermine his political views or challenge precedents that are not on the social conservative (tempered, as in First Amendment cases, by Scalia's academic elitist solicitude (which I share) for freedom of expression) "hit list." […]

It seems we do to some extent live under a system where the personal preferences of the Justices, having nothing to do with the history, text, or logic of the Constitution, dictate when the Supreme Court will or will not intervene to overturn particular regulations.

Bernstein also states the obvious nicely here:

The drug war has run roughshod over the civil libertarian accomplishments of the Warren Court, leading to a weakening to various degrees of the First, Second, Fourth, Fifth, Sixth, and Eighth amendments, not to mention a huge increase in the prison population, and the denial of the basic right to use relatively innocuous recreational drugs, even for medicinal or health purposes.