Patterico's Pontifications

2/20/2007

David Savage Once Again Speaks Whereof He Knows Not

Filed under: Dog Trainer,General,Judiciary — Patterico @ 12:04 am



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.

19 Responses to “David Savage Once Again Speaks Whereof He Knows Not”

  1. Of course this is after all the SMELL A TIMES the wests coasts version of the New York Times there vertiualy no difference between these two secular liberals rags

    krazy kagu (a2e13d)

  2. I’m reminded of the remark made by NYT movie critic, Paulene Kael, after Nixon won: “How can that be? Nobody I know voted for Nixon.” I’ll just say that nobody I know ever reads the LA Times. This doesn’t mean that everybody I don’t know reads it, or that only the influential read it, but I wonder how much influence a paper that nobody reads can have. The LAT is the proverbial “tree falling in the forest with nobody around to see it or hear it.” It only follows that any criticism of it is empty; you are talking to people who have already passed the LAT and get their news elsewhere.

    Duke (4ba8d4)

  3. I was amused with Savage’s observation that, despite the Fourteenth Amendment’s equal protection clause (which mean legal conservatives like Scalia and me say mandates color-blind government by the states), “The Constitution puts no such ‘equal protection’ restriction on Congress or the federal government.” I agree – but does this mean that David is ready to concede that Bolling v. Sharpe — in which the Supreme Court read the Fourteenth Amendment’s equal protection clause into the Fifth Amendment’s due process clause, calling it “unthinkable” that a Constitution which forbade segregation by the states “would impose a lesser duty on the Federal Government” — was wrongly-decided and should be overruled?

    Simon (fb192d)

  4. Savage is “clueless in Los Angeles”. But if you read the rest of the headlines on the front page of today’s Dog Trainer, you’d see that his level of intellectual ability/honesty is just run of the mine down at Spring Street.

    Mike Myers (4d9a65)

  5. “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.”

    Damn. Wonder where he got that idea?

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”

    Dwilkers (4f4ebf)

  6. worship your god in your church, don’t bring him to graduation or the football game. if he is indeed all-powerful, he can get in without a ticket anyway. curiously enough, the problem with allowing people to bring a number of different gods to a football game is the same as if they were allowed to bring a number of different dogs to the game: it exacerbates the potential for conflict.

    assistant devil's advocate (07d7d2)

  7. There is absolutely nothing wrong with including a clergymen to lead a prayer for a football team, or allowing a minister to address the graduating class.

    The only potential for conflict that exists is that of people who cannot accept the fact that people believe that religion is stupid.

    G (722480)

  8. Eco-wacko weenies will replace IN GOD WE TRUST with IN GAIA WE TRSUT right on their rainbow money with the pictures of AL GORE on their 3 and 4 dollar bills

    krazy kagu (6a69d6)

  9. ok g, would you be cool with a satanist addressing the graduating class? how about a hindu or a sikh? make room for all or none get in, because we can’t establish one religion over the others.

    assistant devil's advocate (16009c)

  10. And allowing a prayer at a football game is in violation of “Congress shall make no law respecting an establishment of religion” exactly how?

    A prayer at a football game creates a congressional act … somehow? This reasoning has always been confusing to me …

    make room for all or none get in, because we can’t establish one religion over the others.

    But that’s not really what the first amendment says, is it? I believe your argument blurs the distinction between “establish” and “recognize”. A prayer does not create a “Church of America” which was one of the objections the founders to the English system. The English system believed that God granted power to the king who ruled the people. Our founders believe that the power originates in the Creator but that it bestows directly on the people who grant limited bits of it to the government.

    And I would argue that it is possible to have a generally non-sectarian prayer that recognizes our relationship as creatures to the creator and causes us to pause for a moment to reflect on how we ought to relate to one another. How is this different than the language of the Declaration which clearly recognizes that our rights as citizens derive from “the Creator”? Not tremendously different either than the Pledge or the National Anthem.

    Harry Arthur (b318a5)

  11. gee harry, i guess you weren’t paying attention when the 14th amendment extended constitutional restraints against the federal government to the states as well. nor were you paying attention to my previous comments when i raised the issue of multiple gods seeking establishment/recognition at public events, and potential conflicts between their adherents. as the supreme court correctly ruled, it is unconstitutional to recognize/establish the god of just one religion at a public high school football game.

    i’m guessing your “generally non-sectarian prayer” is limited to non-sectarian _christian_ prayer. you talk about the “creator” and some religions, such as buddhism, de-emphasize this concept in favor of the process. how would you feel about an imam from the local mosque getting up there and bragging about the 72 virgins his creator has in store for him?

    assistant devil's advocate (34d75a)

  12. I am sure the graduating students at Fairfax High would have been SO comforted by an invocation from a local Baptist minister or Catholic priest.

    What will prove interesting is how fast the prayer in schools crowd is gonna jam their gears into reverse the first time a Muslim cleric is permitted to do his thing at a football game or graduation ceremony. The “but, but, but…” will sound like the world’s loudest out-of-tune lawnmower in the country.

    the friendly grizzly (82ada0)

  13. Using a dubious SCOTUS ruling to justify the correctness of dubious SCOTUS reasoning is circular logic and poorly considered argumentation. Its the equivalent of “because I said so”.

    If that’s good enough for you, fine. It just doesn’t belong in a serious discussion about the meaning of the constitution.

    I believe your argument blurs the distinction between “establish” and “recognize”.

    To say nothing of the difference between ‘congress’ and a local school. This is about 4 or 5 steps removed from ‘congress’. Congress -> State -> School Board -> Individual School(s).

    Oddly enough I am not actively religious so it isn’t a religious issue for me. I do know bastardization of simple English and an important thing like our constitution when I see it though.

    If the majority of folks at the high school football game want to take 30 seconds to ululate to Rasta the great then fine, I’ll go to the hot dog stand. Its not going to hurt me, and people acting like this is some kind of assault on their sensitivities are being selfish as well as asinine.

    Dwilkers (4f4ebf)

  14. “gee harry, i guess you weren’t paying attention when the 14th amendment extended constitutional restraints against the federal government to the states as well”

    Surprise – it didn’t. Where does the 14th Amendment state that? And don’t give me the “incorporation” doctrine – more “law” created by judges. The Bill of Rights does not apply to the states. Never did. It is a check on the federal government only.

    Newcomer (406c93)

  15. Well, grizzly, consider what those same imams might do if they are denied an opportunity to lead an invocation, whether Christian ministers and Jewish rabbis are allowed to or not?

    Or, for that matter, if they or their sons are exposed to the sight of cheerleaders?

    Surely you’re not going to suggest that their right not to be offended shouldn’t be honored?

    Lurking Observer (ea88e8)

  16. I love it when somebody starts arguing against themselves. Anyway, i’m honestly not very religious at all. In fact in High School i was in a “group” P.A.G.A.N. (wish i could remember what they stood for) and we were against FCA meetings in school in the morning.

    Now as I’m older, I see no problem with a community or school having a minister conduct a prayer for the football team before the game/half time. You jerks want to point out Satanists, or Buddists whereas some of these communities have no members of that religion. And if they do that could make things different… Though I seriously doubt it. Anyway, as far as having a minister speak at a graduation ceramony, i have no problem with allowing any religion that represents the students beliefs up there. Sure, satanists, hindu, muslim, buddist, christians… all could be heard from. Only watch out, that could be the worst thing, allowing that. Becasue why stop there? What happens when all secs of every religion wish to be represented. While I may not know the difference between Sunni and Shiite, I do know the difference between orthodox and not, between catholic and baptist, southern baptist and methodist, lutheran (oh how many senates are there?)….

    To cut to the point, you have a graduating class which is 90% christian, 4% jewish, 4% non-religious, 1.9 % muslim and .1% other… having a minister address that graduation class shouldn’t be a problem. Though obviously when I say this, I don’t expect the Minister to discuss how Jews will burn in hell, or gays, or how the earth is only so old, or how …. (anyway, i just deem that as hate speech)

    anyway, i really look forward to the day when its officially announced that “Environmentalism” is a religion too…

    G (722480)

  17. I find that I often agree with ada (and it’s mildly frightening):

    Matthew 23:15
    “Woe to you, scribes and Pharisees, hypocrites! For you cross sea and land to make a single convert, and you make the new convert twice as much a child of hell as yourselves.”

    You learn your religion from your parents. Your school has no more business shoving any religion in your face than it has to compel you to go out on a same-sex date with one of your teachers. (Don’t ask me for a link. It’s in the trash bin of my memory but it’s not a hypothetical. Some pervert proposed it.)

    nk (79f144)

  18. And, no! My comment has nothing to do with parents choosing to send their child to a parochial school.

    nk (79f144)

  19. I will take it even a step further and say that it is not an “exercise” or “establishment” issue but a “freedom of speech” issue. No speaker is entitled to a captive audience.

    nk (79f144)


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