Ann Althouse, a Professor of Constitutional Law at the University of Wisconsin, has published an excellent Op-Ed in the Chicago Tribune defending Justice Scalia --- as if any defense were needed --- against some silly charges made my Congressman Barney Frank. Among other things Professor Althouse gets off this zinger:
"Either Frank is an incompetent reader or he is deliberately trying to mislead people into believing that justices vote for results in cases the way legislators vote a bill up or down."
Althouse also calls attention to --- and criticizes --- the habit of some Supreme Court justices who offer their own opinion of a law as a way of "soothing" those who might otherwise disagree with their opinion. For instance, a Justice might vote to uphold a law while at the same time making it very clear that he or she would not have voted for it if he or she were a member of the legislature. Justice Thomas did exactly that in his dissent in Lawrence v. Texas. Like Justice Scalia, he voted to sustain the law as Constitutional. Unlike Justice Scalia, he hastend to add that he thought the law was an "uncommonly silly law." (Some of you will recall that Justice Stewart said the same thing in Griswold v. Connecticut, dissenting from the Court's decision to void the state's ban on the purchase of contraceptives by married couples.) While some have criticized Justice Scalia for failing to offer his own personal opinions in such instances, Althouse has a different take. As she sees things:
"Scalia is resisting telling us about his personal views because they are irrelevant to the work of a judge, and he's modeling upstanding judicial behavior, saying what the law is and nothing more." and
"You may think it's cruel of Scalia to deprive us of soothing words, but don't be tricked about why he writes like that. Scalia is adhering to the most basic legal proposition that judges must decide cases according to the law and leave the rest to the processes of democracy."
Enough said !