Sunday, February 14, 2016

Justice Scalia, RIP

I will greatly miss reading his brilliant dissents, even if I often disagreed with them. Let me challenge Tom Van Dyke's post here on what I see as a bit of a conundrum with Scalia. Quoting Scalia:
 "If there was any thought absolutely foreign to the founders of our country, surely it was the notion that we Americans should be governed the way that Europeans are - and nothing has changed."
Yet, as Scalia concedes the Founders were more than willing to cite one form of foreign law, and that was the British Common Law which was predicated on notions of 1. the brooding omnipresence in the sky and 2. the doctrine of Stare Decisis, both of which Scalia, for the most part, rejects.

When I say "for the most part" I mean as it relates to Stare Decisis. As far as I can tell, Justice Scalia rejects Stare Decisis when none of the other (even very conservative Justices) do. Thus, when Scalia writes a majority or a dissent that has any other of the Justices joining him, he can't say "let's dump Stare Decisis." He can only do such when he writes a sole dissent.

But as far as I can tell from his books and articles (where he speaks on behalf of he himself only), that's what he would do in his first best world. The most Scalia can do when he writes an opinion with others joining him is downplay as oppose to categorically reject Stare Decisis.

But if Justice Scalia's first best judicial world were adopted then America would look, juridically speaking, from a procedural perspective, a lot more like those "other" European nations who are not "common law nations." (Having a "common law" legal heritage means you either are 1. Great Britain, or 2. a former British colony. Given how big the British Empire once was, this encompasses many nations.)

The other European "civil law" systems (and their former colonies) do not use Stare Decisis, but rely more on laws or codes passed by democratic majorities, not judicial precedent.

Justice Scalia wanted America's judicial system to look more "European" in that sense.

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