In the current issue of the Vanderbilt Law Review, Brian Fitzpatrick (Vanderbilt): A Tribute to Justice Scalia: Why Bad Cases Make Bad Methodology (69 Vand. L. Rev. 991 (2016)) Here is the introduction (footnotes omitted):
The Vanderbilt Law Review asked me to write a short memorial tribute to my old boss, Justice Antonin Scalia, and I am fortunate that Dean Chemerinsky’s new book [Ed: The Case against the Supreme Court (Penguin Books, 2015)] provides an apt occasion to do so. To be as blunt as the Justice would have been: he would have hated this book. Not because Dean Chemerinsky is not a gifted writer; he most surely is. But because the entire methodology of the book—a methodology I call “bad-cases” reasoning—was anathema to the Justice. The Justice may not have been right about everything, but he was right about this: bad-cases reasoning is bad methodology. In this Essay, I try to explain why.
When Justice Scalia was asked how it could be that one or another of someone’s favorite constitutional rights was not recognized by his originalist approach, he would often say something like the following:
The Constitution does not guarantee everything that is good and it does not prohibit everything that is bad. It only guarantees or prohibits the specific things it enumerates. If you do not like the list, call your member of Congress.
Yet, Dean Chemerinsky’s new book is little more than an indictment of the Supreme Court for not frequently enough recognizing Dean Chemerinsky’s favorite constitutional rights. The book proceeds along the following syllogism: bad things have happened; the Supreme Court did not stop them (or even brought them about); therefore, the Supreme Court is a failure. His list of bad things has some old favorites on it, as well as some of more recent vintage: Plessy v. Ferguson, Dred Scott v. Sandford, Korematsu v. United States, Buck v. Bell, Citizens United v. FEC, Shelby County v. Holder, etc. You get the idea.
Posted at 6:46 AM