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Justice Stevens Won’t Stop Complaining About His Dissents, Criticizes Scalia, Rehnquist, Vinson, and Jackson on 2nd, 11th, and 14th Amendments. He needs to stop!
On December 27, 2012, Justice Stevens continued his rehabilitation tour in a speech at the Waldorf Astoria in Naples, Fl. This time, he directed his ire at Justice Scalia and his vote in McDonald v. Chicago, Chief Justice Rehnquist on the 11th Amendment, and for good measure Chief Justice Vinson and Justice Jackson on the 14th Amendment.
I have blogged before that I think Stevens’s extrajudicial comments about cases he decided are inappropriate. This is disrespectful to the Court for JPS to continue assailing the Justices–who he knows cannot respond!
Anyway, here are the key excerpts of the speech going after Justice Scalia:
At the end of my last Term on the Supreme Court, over my dissent a majority of five Justices held that Chicago’s ordinance prohibiting the possession of handguns in the home was unconstitutional. The principal contention advanced by the petitioner was that the right to keep and bear arms protected by the Second Amendment against federal infringement was made applicable to the States by the Privileges or Immunities Clause of the 14th Amendment; his secondary argument was that the right was protected by the Due Process Clause of that Amendment. The former argument asked the Court to overrule the Slaughter-House cases, decided in 1873, whereas the latter would require the majority to reaffirm the doctrine of “substantive due process” – the line of cases that holds that due process protection is not limited to procedural guarantees but also includes substantive protections of important interests in liberty, such as parents’ right to have their children educated in a parochial school and a woman’s right to have an abortion.
The dilemma that faced the justices, who had just recently breathed new life into the Second Amendment, is illustrated by this colloquy about the Slaughter-House Cases between Justice Scalia and petitioner’s counsel at the oral argument:
“[W]hy are you asking us to overrule. 140 years of prior law, . . . when you can reach your result under substantive due [process] I mean, you know, unless you’re bucking for a place on some law school faculty …. [W]hat you argue is the darling of the professoriate, for sure, but it’s also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process? Which, as much as I think it’s wrong, I have – even I have acquiesced in it.”
It occurred to me as I listened to that colloquy, that if 140 years of precedent required Justice Scalia to reject the petitioner’s primary submission, and if he were truly convinced that the doctrine of substantive due process is ~wrong”, he should vote to uphold the Chicago ordinance. Given the fact that the purpose of the Second Amendment was to protect the States’ ability to regulate their own militias, it would have been especially appropriate to render a decision that gave state legislators, rather than federal judges, the final say about the validity of local gun control regulations. As you know, I was wrong about how Justice Scalia would vote in the case, and, according to the majority, equally wrong about how the case should be decided.
Now I agree with Stevens. I wrote several op-eds and articles to that effect. Scalia’s vote in McDonald was hypocritical, and his acquiescence to substantive due process, while at the same time rejecting the Privileges or Immunities Clause argument was fatally flawed, and inconsistent with Nino’s own jurisprudence. But I can say that. I’m a measly blogger. JPS should take note from former Presidents who have stayed out of the fray, and not criticized their predecessors.
I’d love to be the fly on the wall for a meeting between Posner and Stevens. It would be like the “He-ManWomanHaters Club,” except against Scalia.
And for good measure Stevens dumps on Chief Justice Vinson and Robert Jackson. What is wrong with him!?
In my discussion of the case in my book, Five Chiefs, I explain that the refusal of Chief Justice Fred Vinson and Justice Robert Jackson either to overrule or to distinguish the clearly erroneous earlier Louisiana case adversely affected my appraisal of their work.
Stevens continues to talk about the Privileges or Immunities Clause and Slaughter-House. You know, if he was so hot-to-trot about P or I, he should have written about it in his opinion, instead of invoking Justice Harlan II’s opinion in Poe v. Ullman to rewrite 75 years of incorporation jurisprudence. Notably, none of the other Justices bought JPS’s parting salvo.
And of course, JPS turns to the 11th Amendment to criticize Chief Justice Rehnquist! Because, why not. Not like Rehnquist can say anything in response.
My conclusion that the decision really had nothing to do with the text of the Eleventh Amendment is buttressed by the fact that in the final Louisiana case that I shall mention tonight, Hans v. Louisiana, the Court reached the same result in a case brought by a Louisiana citizen. It is that case that is the centerpiece of the misguided sovereign immunity jurisprudence that was crafted by Chief Justice Rehnquist during his tenure, and unfortunately expanded by five misguided Members of today’s Court.
Today, under that jurisprudence notwithstanding several attempts to modify the law by unanimous Congresses – state universities and other state agencies enjoy an immunity that not only enables them to refuse to pay their creditors, but also protects them from paying damages for patent infringement, for copyright infringement, for trademark infringement, and for violating a host of other federal statutes protecting their employees from discriminatory practices. I am persuaded that those strange judge-made rules would never have become a part of our law if the Union forces had not been withdrawn from the South after Grant’s tenure in office ended. Moreover, if he were alive today, I feel sure that he would have led a campaign to ship the whole doctrine of sovereign immunity back to England where, long ago, the Queen’s subjects once believed that the sovereign can do no wrong
WTF? General Grant would ship Chief Justice Rehnquist’s 11th Amendment Jurisprudence back to England? That’s a terrible joke, and ridiculous.
This is beneath the office of a Senior Associate Justice of the United States Supreme Court.
JPS needs to stop this chicanery.
H/T Mike Sacks