David Savage has a useless, speculative article in the L.A. Times about how Justice Scalia “may” get to write a lot of majority opinions this term:
It has been two decades in the making, but this is the year Justice Antonin Scalia, the Supreme Court’s most outspoken dissenter, could emerge as a leader of a new conservative majority among the justices.
Or he could not.
Between now and late June, the court is set to hand down decisions in four areas of law — race, religion, abortion regulation and campaign finance — where Scalia’s views may now represent the majority.
Or they may not.
What makes Savage believe that Scalia is in a new conservative majority? It all comes down to where (he thinks) Justice Kennedy stands. (Judicial conservatives are now rolling their eyes at the idea that they are going to depend on that guy for anything.) Here’s Savage:
In sessions that begin Tuesday, this term will give Scalia a chance to make a mark in several areas in which Kennedy usually sides with conservatives.
Oh really? Which areas are those?
For example, Scalia has scorned the notion of a strict separation of church and state. Rather, he has said the First Amendment was intended only to bar the government from supporting an official national religion. In his first year on the court, he defended the teaching of creationism in public schools. He has voted regularly since then to allow the government to promote religion in general.
Savage does not explain how it is that Kennedy “usually sides with conservatives” in these “separation of church and state” cases. Kennedy famously betrayed conservatives in the 1992 case of Lee v. Weisman, which held unconstitutional clergy-led prayers at graduation ceremonies. Kennedy had initially indicated his intent to vote with conservatives, but executed a flip-flop and voted that such prayer is unconstitutional, cementing a liberal 5-4 majority. (Kennedy’s flip-flop in that case, by the way, foreshadowed another more serious flip-flop later that term — in the Casey decision, which reaffirmed Roe v. Wade.)
And in Santa Fe School District v. Doe, Kennedy joined a 6-3 majority holding it unconstitutional for a “student council chaplain” to deliver a prayer over a P.A. system before a varsity football game.
Generally, Kennedy is thought of as a Justice who tries to avoid these cases by voting not to hear them in the first place.
So how does Kennedy “usually side with conservatives” in this area again, David Savage?? Savage gives us no examples.
Savage also seems to assume that Kennedy is a vote against the Partial-Birth Abortion Ban Act of 2003. I hope he’s right . . . but I fear he’s wrong.
This is the level of scholarship we’re looking at here. Mostly, the article is a chance to take a gratuitous slap at Scalia and his theories of originalism.
Par for the course.