A great George Will on the upcoming battle

[Kilmer17]

The problem is using the past 40 years of the SCOTUS as the basis to make the comparison. Ginsberg isnt far left compared to where the Court has been int he last half century. But that's a reflection of the left leaning nature of the Court in that time, not of moderation on her part. And in that same comparison, Scalia and Thomas seem far right. And they are far right when using a far left position as comparison.

Ginsberg may not have been the most Liberal available, but I know that there are more Conservative Justices than Scalia, Thomas, and Alito.

[Guest Gichin13]

The problem is using the past 40 years of the SCOTUS as the basis to make the comparison. Ginsberg isnt far left compared to where the Court has been int he last half century. But that's a reflection of the left leaning nature of the Court in that time, not of moderation on her part. And in that same comparison, Scalia and Thomas seem far right. And they are far right when using a far left position as comparison.

Ginsberg may not have been the most Liberal available, but I know that there are more Conservative Justices than Scalia, Thomas, and Alito.

I know very little about Alito so I cannot comment on that.

I think you would be hard pressed to find anyone to the right of Scalia and Thomas.

I would agree with you that the Court in the 1960's went too far to the left. They went there for good reasons (massive racial discrimination, coerced police confessions, et c), but I was always more comfortable with where Powell and/or Stewart (depending on the issue) sat on the Court than Brennan and Marshall.

Getting back to the center legally does not justify swinging to the extreme right in my book which seems like the mission of most RNC talking points now.

The things people latch on to are really bizarre to me. Here is one:

"We want judges who refuse to look to the law of other countries".

Interpretation: Kennedy was an idiot for discussing other industrialized nations and how they treat the death penalty for minors.

Analysis: No one ever suggested that international law or other countries' law was controlling. Kennedy cited it as "persuasive authority". Courts do this all the time. Every time a state supreme court cites the law of another state as persuasive to its reasoning, the state is looking to another sovereign's laws and analysis. From a lawyer's point of view, this type of political statement really is pretty damn silly.

Besides, the US is supposedly the most progressive and forward thinking land in the world, the land of protection of individual civil rights and liberties and alleged exporter of those concepts. Why is it not relevant to see that how many of our allies have completely abandoned the death penalty in the last 50 years? And that we still have way high crime rates compared to other countries?

Why is it sacrosanct to ask what other countries are doing on these issues? I have never heard an intellectually justifiable position on why even looking at the positions of other legal systems for persuasive analysis is legally bankrupt as is suggested so often.

Do folks really want a completely bright line test of one shot at habeas corpus? And even rock solid proof of actual innocence in the form of DNA evidence is insufficient to reopen an appeal of a death case?

That is how far right the court has been pushed over the last thirty years and it makes me uncomfortable. It sounds all well and good until you picture yourself or a loved one wrongfully convicted in a capital case, with DNA evidence on your side and no right of appeal. Why? Because Rhenquist made it his personal mission to gut habeas corpus.

I even agree that serial habeas appeals were a major problem and tying up the system. However, picking procedure entirely over substance has its own inherent problem. I for one lean to substance over form, but I also respect the need for clear bright line rules whenever they do not result in gross injustice.

Ultimately, I do not want ideologues from either side defining the law on constitutional issues and that is what we seem to mostly get now. In my book, Scalia is a total ideologue and so is Thomas. O'Connor managed not to be and I respect her for that. At some point, the court needs to get past this 5-4 political lines type of decisions and into the middle of well reasoned and apolitical analysis or our law will always be captive to politics. Imagine trying to get a unanimous vote on Brown v. Board of Education with the dynamic up there now, it just would never happen (not to mention Rhenquist was against that opinion in the first place).

[Predicto]

The same case-specific argument that the Dems used to support Ginsberg can be found to support Alito. That doesnt change the fact that she's an extreme Liberal or that he's a Conservative.

Sorry, Ginsburg actually is not an "extreme Liberal." Justice Stephen Reinhardt of the Ninth Circuit is an extreme Liberal. Former Justices Thorogood Marshall and William Brennan were extreme liberals. We don't have any extreme liberals on the Supreme Court right now. Ginsburg is a moderate, generally conservative in criminal matters and with liberal tendencies in civil cases.

The fact that she rarely agrees with Scalia and Thomas does not make her an extremist. They are on the far right of the spectrum, and any moderate would disagree with them a lot.

[Predicto]

Ginsberg may not have been the most Liberal available, but I know that there are more Conservative Justices than Scalia, Thomas, and Alito.

Really? Who are they? I can't think of any who are clearly to the right of Scalia and Thomas. There are several that equal them, but none that exceed them that I know of.

[chomerics]

DjTj & Gitchen, great couple of posts, the best I have read on ES in a while. You added to the creedance that lawyers are not who society paints them to be!!!

[Duncan]

Sorry, Ginsburg actually is not an "extreme Liberal." Justice Stephen Reinhardt of the Ninth Circuit is an extreme Liberal. Former Justices Thorogood Marshall and William Brennan were extreme liberals. We don't have any extreme liberals on the Supreme Court right now. Ginsburg is a moderate, generally conservative in criminal matters and with liberal tendencies in civil cases.

The fact that she rarely agrees with Scalia and Thomas does not make her an extremist. They are on the far right of the spectrum, and any moderate would disagree with them a lot.

It would be interesting to read some of the decisions by these radicals Thomas and Scalia that place them so far out of the mainstream.

Any examples?

[Guest Gichin13]

It would be interesting to read some of the decisions by these radicals Thomas and Scalia that place them so far out of the mainstream.

Any examples?

Duncan -- take the Gichin/Predicto challenge. Name a judge that is to the right of Scalia and Thomas and back it up with case citations. I do not think they are out there.

I think Luttig gets a tie ...

[Kilmer17]

Really? Who are they? I can't think of any who are clearly to the right of Scalia and Thomas. There are several that equal them, but none that exceed them that I know of.

Michael Luttig and Harvey Wilkinson on the 4th circuit are far more right. And of course nutcases like Roy Moore in Alabama. Former ATTY General Ashcroft would be to the right.

And the fact that the Liberals here cannot even admit that Ginsberg is a far left Judge speaks volumes about the perception of the court today. It's not a balanced middle of the road Court in its current status. It's a left leaning court.

[Duncan]

Duncan -- take the Gichin/Predicto challenge. Name a judge that is to the right of Scalia and Thomas and back it up with case citations. I do not think they are out there.

I think Luttig gets a tie ...

"The drug of choice for multinational corporations and single moms; for regulated industries and rugged Midwestern farmers and militant senior citizens."

Oh how I love this woman. Now it's your turn, find a ruling by either Thomas or Scalia that would be considered outside the mainstream.

http://saveourcourts.civilrights.org/search/details.cfm?id=31891

Janice Rogers Brown On American Government

Some things are apparent. Where government moves in, community retreats, civil society disintegrates and our ability to control our own destiny atrophies. The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption; the loss of civility and the triumph of deceit. The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible. ["A Whiter Shade of Pale," Speech to Federalist Society (April 20. 2000)("Federalist speech" at 8]

Where government advances - and it advances relentlessly - freedom is imperiled; community impoverished; religion marginalized and civilization itself jeopardized....When did government cease to be a necessary evil and become a goody bag to solve our private problems? ["Hyphenasia: the Mercy Killing of the American Dream," Speech at Claremont-McKenna College (Sept. 16, 1999) at 3,4]

In the last 100 years - and particularly in the last 30 - ...[g]overnment has been transformed from a necessary evil to a nanny - benign, compassionate, and wise. Sometimes transformation is a good thing. Sometimes, though, it heralds not higher ground but rather, to put a different gloss on Pat Moynihan's memorable phrase, defining democracy down. ["Fifty Ways to Lose Your Freedom," Speech to Institute of Justice (Aug. 12, 2000)("IFJ speech") at 2]

[W]e no longer find slavery abhorrent. We embrace it. We demand more. Big government is not just the opiate of the masses. It is the opiate. The drug of choice for multinational corporations and single moms; for regulated industries and rugged Midwestern farmers and militant senior citizens. [iFJ speech at 3-4]

Government acts as a giant siphon, extracting wealth, creating privilege and power, and redistributing it. [speech at McGeorge School of Law (Nov. 21, 1997) at 18][see also Landgate, Inc. v. California Coastal Commission, 953 P.2d 1188, 1212 (Cal. 1998)(Brown, J., dissenting)(referring to government as "relentless siphon.")]

[DjTj]

Michael Luttig and Harvey Wilkinson on the 4th circuit are far more right. And of course nutcases like Roy Moore in Alabama. Former ATTY General Ashcroft would be to the right.

And the fact that the Liberals here cannot even admit that Ginsberg is a far left Judge speaks volumes about the perception of the court today. It's not a balanced middle of the road Court in its current status. It's a left leaning court.

Where do we put the center? If it is our current law as it is today, I think you would have to admit that Scalia and Thomas want to change the law a lot more than Ginsberg wants to change the law.

I think it's hard to say that a Court where 7 out of 9 Justices were appointed by Republican Presidents is a left-leaning Court. Certainly it's to the left of you, NavyDave, and Duncan, but it's probably a far-right Court to crazyhorse.

Maybe we can define the center as some sort of poll of the population, but I think that would be kind of hard ... what are our poll questions going to be? Should marijuana be legal in California? Should we have Gun-Free School Zones? Should the Federal Sentencing Guidelines allow judges to increase the sentences of criminals? Constitutional jurisprudence doesn't often fall easily into a political left/right model. We have to define variables such as rules vs. standards, originalism vs. the living Constitution, and stare decisis vs. original intent. Most Justices don't fall easily into any left/right category.

In the past 5 years there was one time where the Court was polled on its political leanings. The result was 5-4 in favor of Bush over Gore - I think that's pretty conclusive evidence that we in fact have a right-leaning Court.

Luttig and Wilkinson aren't FAR more right of Scalia and Thomas. I think you could argue that if anyone, Janice Rogers Brown is FAR to the right. However, there are also plenty of examples to the left of Ginsburg. Stephen Reinhardt comes to mind ...

[Larry]

Maybe we can define the center as some sort of poll of the population, but I think that would be kind of hard ... what are our poll questions going to be? Should marijuana be legal in California? Should we have Gun-Free School Zones? Should the Federal Sentencing Guidelines allow judges to increase the sentences of criminals? Constitutional jurisprudence doesn't often fall easily into a political left/right model. We have to define variables such as rules vs. standards, originalism vs. the living Constitution, and stare decisis vs. original intent. Most Justices don't fall easily into any left/right category.

I think some of the ones I would ask would be more like "Do the words 'commander in chief', in the Constitution, grant the President the authority to make people, including american citizens, disapear?" "Does the US Government have the right to kidnap foreign citizens while in foreign countries?" "Does the federal government have the authority to practice selective enforcement of federal regulations against states that pass laws that the federal government doesn't like?" "Does the 'equal protection' clause prohibit the federal government from passing legislation that is designed (and declared) to only apply to one person?"

But that's just me, and I do see your point.

[Duncan]

Where do we put the center? If it is our current law as it is today, I think you would have to admit that Scalia and Thomas want to change the law a lot more than Ginsberg wants to change the law.

I think it's hard to say that a Court where 7 out of 9 Justices were appointed by Republican Presidents is a left-leaning Court. Certainly it's to the left of you, NavyDave, and Duncan, but it's probably a far-right Court to crazyhorse.

Maybe we can define the center as some sort of poll of the population, but I think that would be kind of hard ... what are our poll questions going to be? Should marijuana be legal in California? Should we have Gun-Free School Zones? Should the Federal Sentencing Guidelines allow judges to increase the sentences of criminals? Constitutional jurisprudence doesn't often fall easily into a political left/right model. We have to define variables such as rules vs. standards, originalism vs. the living Constitution, and stare decisis vs. original intent. Most Justices don't fall easily into any left/right category.

In the past 5 years there was one time where the Court was polled on its political leanings. The result was 5-4 in favor of Bush over Gore - I think that's pretty conclusive evidence that we in fact have a right-leaning Court.

Luttig and Wilkinson aren't FAR more right of Scalia and Thomas. I think you could argue that if anyone, Janice Rogers Brown is FAR to the right. However, there are also plenty of examples to the left of Ginsburg. Stephen Reinhardt comes to mind ...

Well to be grouped in with NavyDave is an honor although I probably disagree with him on 80% of social issues.

What is so amazing is that liberals are opposed to constitutionalists. The type of jurists that would leave drug laws, sodomy laws and other hot button social issues to the states. Isn't that empowering the citizenry to make these decisions for themselves? That’s why liberals love judicial fiat because it allows them to ram their morality down everyone’s throats.

That's the beauty of the constitution. If strictly followed it takes politics out of the equation.

[chomerics]

What is so amazing is that liberals are opposed to constitutionalists. The type of jurists that would leave drug laws, sodomy laws and other hot button social issues to the states. Isn't that empowering the citizenry to make these decisions for themselves?

Maybe you can explain why a constitutionalist like Scalia would vote against the medicinal marijuana laws then.

It isn't constitutionalists we disagree with, it is ideologs, the consitiutionalists argument goes out the window with the Roberts nomination.

[Duncan]

Maybe you can explain why a constitutionalist like Scalia would vote against the medicinal marijuana laws then.

It isn't constitutionalists we disagree with, it is ideologs, the consitiutionalists argument goes out the window with the Roberts nomination.

Well if you can produce a post where I agreed with his decision then let's talk. In fact, also please let me know my thoughts on the Roberts nomination.

The problem with liberals is they moan about freedoms when it comes to social issues. You would be surprised how much I agree with you there.

When it comes to eminent domain, income taxes, social security and other personal financial issues those freedoms, in your eyes, disappear.

[DjTj]

Well to be grouped in with NavyDave is an honor although I probably disagree with him on 80% of social issues.

What is so amazing is that liberals are opposed to constitutionalists. The type of jurists that would leave drug laws, sodomy laws and other hot button social issues to the states. Isn't that empowering the citizenry to make these decisions for themselves? That’s why liberals love judicial fiat because it allows them to ram their morality down everyone’s throats.

That's the beauty of the constitution. If strictly followed it takes politics out of the equation.

:laugh: Well, thinking back on it, I think I meant to say Sarge instead of NavyDave, but I was writing that as I was leaving for dinner and that was the person I thought of. I added your name because it was just the one that was all over this thread.

There's nothing amazing at all about liberals being opposed to constitutionalists. The current generation of liberal judges grew up in time when conservative judicial philosophy was used to justify segregation and discrimination throughout all phases of life. Before Brown, the "originalist" argument was that the Equal Protection Clause permitted "separate but equal." Before Reed, conservatives claimed that Equal Protection did not apply to discrimination on the basis of sex. Federalism and states' rights were arguments used to justify Jim Crow laws. Anyone with any belief in liberal causes should have an immediate negative reaction to anyone claiming constitutionalism - it was the doctrine used to oppress minorities for the greater part of the 20th century. Liberals didn't embrace unenumerated rights because they wanted to ram morality down anyone's throat; they saw it as a tool to dislodge the injustice that had been rammed down their throats for generations.

Anyhow, you asked a while ago for some Scalia and Thomas opinions that were out of the mainstream. I'm personally on a Thomas-bashing moratorium since I just met him in person last week, but I'll give you a pair of Scalia opinions:

In Rutan v. Republican Party of Illinois, Scalia dissenting, arguing that it was permissible for the Governor of Illinois to personally approve every single hiring decision in state government to make sure the employee was a Republican. He emphasized the all-important role of political parties:

It is self-evident that eliminating patronage will significantly undermine party discipline; and that as party discipline wanes, so will the strength of the two-party system. But, says the Court, "[p]olitical parties have already survived the substantial decline in patronage employment practices in this century." Ante, at 1213. This is almost verbatim what was said in Elrod, see 427 U.S., at 369. Fourteen years later it seems much less convincing. Indeed, now that we have witnessed, in 18 of the last 22 years, an Executive Branch of the Federal Government under the control of one party while the Congress is entirely or (for two years) partially within the control of the other party; now that we have undergone the most recent federal election, in which 98" of the incumbents, of whatever party, were returned to office; and now that we have seen elected officials changing their political affiliation with unprecedented readiness, Washington Post, Apr. 10, 1990, p.A1, the statement that "political parties have already survived" has a positively whistling-in-the- graveyard character to it.

http://straylight.law.cornell.edu/supct/html/88-1872.ZD.html

I would argue that this blind loyalty to the two-party system is pretty out of the mainstream ... maybe not the inside-the-beltway political elite mainstream, but certainly outside of the heartland mainstream.

In his concurrence in Gonzalez v. Raich, he argues that marijuana grown at home constitutes "interstate commerce:"

By this measure, I think the regulation must be sustained. Not only is it impossible to distinguish “controlled substances manufactured and distributed intrastate” from “controlled substances manufactured and distributed interstate,” but it hardly makes sense to speak in such terms. Drugs like marijuana are fungible commodities. As the Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market–and this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular State.3 See ante, at 23—30. Congress need not accept on faith that state law will be effective in maintaining a strict division between a lawful market for “medical” marijuana and the more general marijuana market. See id., at 26—27, and n. 38. “To impose on [Congress] the necessity of resorting to means which it cannot control, which another government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on other governments, which might disappoint its most important designs, and is incompatible with the language of the constitution.” McCulloch, supra, at 424.

http://straylight.law.cornell.edu/supct/html/03-1454.ZC.html

The result of the case, striking down a medicinal marijuana law, is out of liberal mainstream, and the argument is out of the conservative mainstream, so I would have to say that Scalia's opinion here is out of the mainstream. It also just doesn't make any sense in the context of his other opinions. All I can figure is that he hates dope.

[Duncan]

:laugh: Well, thinking back on it, I think I meant to say Sarge instead of NavyDave, but I was writing that as I was leaving for dinner and that was the person I thought of. I added your name because it was just the one that was all over this thread.

There's nothing amazing at all about liberals being opposed to constitutionalists. The current generation of liberal judges grew up in time when conservative judicial philosophy was used to justify segregation and discrimination throughout all phases of life. Before Brown, the "originalist" argument was that the Equal Protection Clause permitted "separate but equal." Before Reed, conservatives claimed that Equal Protection did not apply to discrimination on the basis of sex. Federalism and states' rights were arguments used to justify Jim Crow laws. Anyone with any belief in liberal causes should have an immediate negative reaction to anyone claiming constitutionalism - it was the doctrine used to oppress minorities for the greater part of the 20th century. Liberals didn't embrace unenumerated rights because they wanted to ram morality down anyone's throat; they saw it as a tool to dislodge the injustice that had been rammed down their throats for generations.

Anyhow, you asked a while ago for some Scalia and Thomas opinions that were out of the mainstream. I'm personally on a Thomas-bashing moratorium since I just met him in person last week, but I'll give you a pair of Scalia opinions:

In Rutan v. Republican Party of Illinois, Scalia dissenting, arguing that it was permissible for the Governor of Illinois to personally approve every single hiring decision in state government to make sure the employee was a Republican. He emphasized the all-important role of political parties:

It is self-evident that eliminating patronage will significantly undermine party discipline; and that as party discipline wanes, so will the strength of the two-party system. But, says the Court, "[p]olitical parties have already survived the substantial decline in patronage employment practices in this century." Ante, at 1213. This is almost verbatim what was said in Elrod, see 427 U.S., at 369. Fourteen years later it seems much less convincing. Indeed, now that we have witnessed, in 18 of the last 22 years, an Executive Branch of the Federal Government under the control of one party while the Congress is entirely or (for two years) partially within the control of the other party; now that we have undergone the most recent federal election, in which 98" of the incumbents, of whatever party, were returned to office; and now that we have seen elected officials changing their political affiliation with unprecedented readiness, Washington Post, Apr. 10, 1990, p.A1, the statement that "political parties have already survived" has a positively whistling-in-the- graveyard character to it.

http://straylight.law.cornell.edu/supct/html/88-1872.ZD.html

I would argue that this blind loyalty to the two-party system is pretty out of the mainstream ... maybe not the inside-the-beltway political elite mainstream, but certainly outside of the heartland mainstream.

In his concurrence in Gonzalez v. Raich, he argues that marijuana grown at home constitutes "interstate commerce:"

By this measure, I think the regulation must be sustained. Not only is it impossible to distinguish “controlled substances manufactured and distributed intrastate” from “controlled substances manufactured and distributed interstate,” but it hardly makes sense to speak in such terms. Drugs like marijuana are fungible commodities. As the Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market–and this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular State.3 See ante, at 23—30. Congress need not accept on faith that state law will be effective in maintaining a strict division between a lawful market for “medical” marijuana and the more general marijuana market. See id., at 26—27, and n. 38. “To impose on [Congress] the necessity of resorting to means which it cannot control, which another government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on other governments, which might disappoint its most important designs, and is incompatible with the language of the constitution.” McCulloch, supra, at 424.

http://straylight.law.cornell.edu/supct/html/03-1454.ZC.html

The result of the case, striking down a medicinal marijuana law, is out of liberal mainstream, and the argument is out of the conservative mainstream, so I would have to say that Scalia's opinion here is out of the mainstream. It also just doesn't make any sense in the context of his other opinions. All I can figure is that he hates dope.

Well you would be hard pressed to claim the current generation of constitutionalists would support Jim Crow laws. The two cases you cited from Scalia are hardly out of the mainstream and certainly don’t rise to the level of “turning back the clock” on civil rights.

Rutan v. Republican Party of Illinois – I don’t agree with the ruling but to argue that a governor elected by a majority can screen employees doesn’t seem to me to be extreme, and I’m a third party supporter.

Gonzalez v. Raich – Again, I personally disagree with his ruling but to use this as an example of Scalia being a wacko is tenuous at best.

The man has written some brilliant constitutional opinions that I’m sure you support.

Here is one from Ginsburg, clearly an activist that lets her politics influence her rulings.

MILLER V. JOHNSON

Similar concern to preserve room for governments to take adequate account of the continuing effects of race are evident in Justice Ginsburg's dissent in Miller v. Johnson, 515 U.S. 900 (1995). Writing for herself and three others, Justice Ginsburg dissented from the Court's decision holding one of Georgia's post-1990 congressional districts to be an unconstitutional racial gerrymander. She argued that the record in the case did not demonstrate that the state legislature had been unconstitutionally racially motivated in drawing the district's lines. She also critiqued the Court's heightened scrutiny of legislative redistricting to discern impermissible uses of race, maintaining that such scrutiny is particularly inappropriate to districting contexts where legislatures are necessarily focused on groups and the protections of the Voting Rights Act preclude the need for enhanced federal court involvement to prevent unconstitutional racial discrimination.

http://www.oyez.org/oyez/resource/case/638/

Facts of the Case

Between 1980 and 1990, only one of Georgia's ten congressional districts was majority-black. According to the 1990 decennial census, Georgia's black population of 27% entitled blacks to an additional eleventh congressional seat, prompting Georgia's General Assembly to re-draw the state's congressional districts. After the Justice Department refused pre-clearance of several of the Assembly's proposed new districts, the Assembly was finally successful in creating an additional majority-black district through the forming of an eleventh district. This district, however, was called a "geographic monstrosity" because it extended 6,784.2 square miles from Atlanta to the Atlantic Ocean. In short, "the social, political, and economic makeup of the Eleventh District tells a tale of disparity, not community."

Question Presented

Is racial gerrymandering of the congressional redistricting process a violation of the Equal Protection Clause?

Conclusion

Yes. In some instances, a reapportionment plan may be so highly irregular and bizarre in shape that it rationally cannot be understood as anything other than an effort to segregate voters based on race. Applying the rule laid down in Shaw v. Reno requires strict scrutiny whenever race is the "overriding, predominant force" in the redistricting process.

I live in Georgia and anyone who bothers to look at the district that was overturned cannot say it wasn’t racially motivated. Most mainstream folks would claim that district was absurd. It snaked down I85 and was a classic case of “proportional representation”, clearly unconstitutional.

[chomerics]

Well if you can produce a post where I agreed with his decision then let's talk. In fact, also please let me know my thoughts on the Roberts nomination.

Actually, I was talking about Scalia, not you in your original post. I think if Scalia was a constitutionalist, then he should have voted for the legalization of MJ. Because he voted against it, he has exposed himself as an ideolog rather then a constitutionalist.

The problem with liberals is they moan about freedoms when it comes to social issues. You would be surprised how much I agree with you there.

When it comes to eminent domain, income taxes, social security and other personal financial issues those freedoms, in your eyes, disappear.

I actually disagree with eminent domain, as well as a number of other things. I agree with a progressive tax system, but disagree that non-working wages, ie capitol gains etc. should be taxed at a less rate then somebody who is working a 9-5 job for their money. There are a number of other areas I agree with more freedoms and less regulation, but it is on a case by case basis, and not just a wide brush for every single case.

[chomerics]

:laugh: Well, thinking back on it, I think I meant to say Sarge instead of NavyDave, but I was writing that as I was leaving for dinner and that was the person I thought of. I added your name because it was just the one that was all over this thread.

I think he got the gist, hell everyone here at ES knows they are gay lovers :laugh:

j/k guys

[DjTj]

Here is one from Ginsburg, clearly an activist that lets her politics influence her rulings.

* * *

I live in Georgia and anyone who bothers to look at the district that was overturned cannot say it wasn’t racially motivated. Most mainstream folks would claim that district was absurd. It snaked down I85 and was a classic case of “proportional representation”, clearly unconstitutional.

You can't call Ginsburg "clearly an activist" without reading her opinion. In Miller v. Johnson, Ginsburg did not argue that race was not a factor. In fact, she conceded that point:

Therefore, the fact that the Georgia General Assembly took account of race in drawing district lines--a fact not in dispute--does not render the State's plan invalid. To offend the Equal Protection Clause, all agree, the legislature had to do more than consider race. How much more, is the issue that divides the Court today.

Her concern was the level of federal intervention into the process:

"We say once again what has been said on many occasions: reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court." Chapman v. Meier, 420 U.S. 1, 27 (1975); see also ante, at 14. The Constitution itself allocates this responsibility to States. U. S. Const., Art. I, §2; Growe v. Emison, 507 U. S. ___, ___ (1993) (slip op., at 8).

"Districting inevitably has sharp political impact and inevitably political decisions must be made by those charged with the task." White v. Weiser, 412 U.S. 783, 795-796 (1973). District lines are drawn to accommodate a myriad of factors--geographic, economic, historical, and political--and state legislatures, as arenas of compromise and electoral accountability, are best positioned to mediate competing claims; courts, with a mandate to adjudicate, are ill equipped for the task.

She found evidence that many of these other factors were at issue in Georgia:

Evidence at trial similarly shows that considerations other than race went into determining the Eleventh District's boundaries. For a "political reason"--to accommodate the request of an incumbent State Senator regarding the placement of the precinct in which his son lived--the DeKalb County portion of the Eleventh District was drawn to include a particular (largely white) precinct. 2 Tr. 187, 202. The corridor through Effingham County was substantially narrowed at the request of a (white) State Representative. 2 Tr. 189-190, 212-214. In Chatham County, the District was trimmed to exclude a heavily black community in Garden City because a State Representative wanted to keep the city intact inside the neighboring First District. 2 Tr. 218-219. The Savannah extension was configured by "the narrowest means possible" to avoid splitting the city of Port Wentworth. 4 Tr. 172-174, 175-178, 181-183.

At the end of her dissent, she again reiterated her concern about federal intrusion into this area of law:

Only after litigation--under either the Voting Rights Act, the Court's new Miller standard, or both--will States now be assured that plans conscious of race are safe. Federal judges in large numbers may be drawn into the fray. This enlargement of the judicial role is unwarranted. The reapportionment plan that resulted from Georgia's political process merited this Court's approbation, not its condemnation. Accordingly, I dissent.

http://straylight.law.cornell.edu/supct/html/94-631.ZD1.html

That doesn't sound like a radical liberal to me.

You also asked for Scalia's views in a civil rights case, so I'll give you his concurrence in Richmond v. J.A. Croson, where he joined a majority striking down an affirmative action program. However, he didn't think they went far enough:

I agree with much of the Court's opinion, and, in particular, with JUSTICE O'CONNOR's conclusion that strict scrutiny must be applied to all governmental classification by race, whether or not its asserted purpose is "remedial" or "benign." Ante at 493, 495. I do not agree, however, with JUSTICE O'CONNOR's dictum suggesting that, despite the Fourteenth Amendment, state and local governments may in some circumstances discriminate on the basis of race in order (in a broad sense) "to ameliorate the effects of past discrimination." Ante at 476-477. The benign purpose of compensating for social disadvantages, whether they have been acquired by reason of prior discrimination or otherwise, can no more be pursued by the illegitimate means of racial discrimination than can other assertedly benign purposes we have repeatedly rejected. See, e.g., Wygant v. Jackson Board of Education, 476 U.S. 267, 274-276 (1986) (plurality opinion) (discrimination in teacher assignments to provide "role models" for minority students); Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (awarding custody of child to father, after divorced mother entered an interracial remarriage, in order to spare child social "pressures and stresses"); Lee v. Washington, 390 U.S. 333 (1968) (per curiam) (permanent racial segregation of all prison inmates, presumably to reduce possibility of racial conflict). The difficulty of overcoming the effects of past discrimination is as nothing compared with the difficulty of eradicating from our society the source of those effects, which is the tendency -- fatal to a Nation such as ours -- to classify and judge men and women on the basis of their country of origin or the color of their skin. A solution [p521] to the first problem that aggravates the second is no solution at all.

Alright, that's probably reasonable to many people on this board, although I would not necessarily agree. However, what's weird about his dissent is that he seems to think that while the City of Richmond should not be allowed to implement an affirmative action program, he is okay with the federal government doing so:

We have in some contexts approved the use of racial classifications by the Federal Government to remedy the effects of past discrimination. I do not believe that we must or should extend those holdings to the States. In Fullilove v. Klutznick, 448 U.S. 448 (1980), we upheld legislative action by Congress similar in its asserted purpose to that at issue here. And we have permitted federal courts to prescribe quite severe, race-conscious remedies when confronted with egregious and persistent unlawful discrimination, see, e.g., United States v. Paradise, 480 U.S. 149 (1987); Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986). As JUSTICE O'CONNOR acknowledges, however, ante at 486-491, it is one thing to permit racially based conduct by the Federal Government -- whose legislative powers concerning matters of race were explicitly enhanced by the Fourteenth Amendment, see U.S.Const., Amdt. 14, § 5 -- and quite another to permit it by the precise entities against whose conduct in [p522] matters of race that Amendment was specifically directed, see Amdt. 14, § 1.

Now, maybe there's some good originalist arguments there. However, I wouldn't call it a mainstream opinion that the federal government should be able to implement affirmative action programs while the states are not allowed ... I believe this is one area of race jurisprudence where Thomas actually disagrees with Scalia.

[Larry]

There's nothing amazing at all about liberals being opposed to constitutionalists. The current generation of liberal judges grew up in time when conservative judicial philosophy was used to justify segregation and discrimination throughout all phases of life. Before Brown, the "originalist" argument was that the Equal Protection Clause permitted "separate but equal." Before Reed, conservatives claimed that Equal Protection did not apply to discrimination on the basis of sex. Federalism and states' rights were arguments used to justify Jim Crow laws. Anyone with any belief in liberal causes should have an immediate negative reaction to anyone claiming constitutionalism - it was the doctrine used to oppress minorities for the greater part of the 20th century. Liberals didn't embrace unenumerated rights because they wanted to ram morality down anyone's throat; they saw it as a tool to dislodge the injustice that had been rammed down their throats for generations.

Just wanting to thank you for a post which I agree with, but which was both better supported and more polite than mine likely would have been.

My response was going to focus more on pointing out that "constitutionist" has, IMO, simply become another "code phrase" along the lines of "states rights"

(While recently searching for another post of mine, I recently resurected this. It's simply my observation that a lot of people, of different political leanings, all seem to believe that "God (or the Constitution) is on my side" on the issues. (Just one example that I didn't mention back then. As far as I'm concerned, the US Constitution mandates that gay marriage is the law of all 50 states. The equal protection clause says so, and it has said so for 200 years. It also says that blacks, women, and indians could vote. See, I'm a strict constitutionalist.)

Anyhow, you asked a while ago for some Scalia and Thomas opinions that were out of the mainstream. I'm personally on a Thomas-bashing moratorium since I just met him in person last week, but I'll give you a pair of Scalia opinions:

In Rutan v. Republican Party of Illinois, Scalia dissenting, arguing that it was permissible for the Governor of Illinois to personally approve every single hiring decision in state government to make sure the employee was a Republican. He emphasized the all-important role of political parties:

It is self-evident that eliminating patronage will significantly undermine party discipline; and that as party discipline wanes, so will the strength of the two-party system. But, says the Court, "[p]olitical parties have already survived the substantial decline in patronage employment practices in this century." Ante, at 1213. This is almost verbatim what was said in Elrod, see 427 U.S., at 369. Fourteen years later it seems much less convincing. Indeed, now that we have witnessed, in 18 of the last 22 years, an Executive Branch of the Federal Government under the control of one party while the Congress is entirely or (for two years) partially within the control of the other party; now that we have undergone the most recent federal election, in which 98" of the incumbents, of whatever party, were returned to office; and now that we have seen elected officials changing their political affiliation with unprecedented readiness, Washington Post, Apr. 10, 1990, p.A1, the statement that "political parties have already survived" has a positively whistling-in-the- graveyard character to it.

http://straylight.law.cornell.edu/supct/html/88-1872.ZD.html

I would argue that this blind loyalty to the two-party system is pretty out of the mainstream ... maybe not the inside-the-beltway political elite mainstream, but certainly outside of the heartland mainstream.

In his concurrence in Gonzalez v. Raich, he argues that marijuana grown at home constitutes "interstate commerce:"

By this measure, I think the regulation must be sustained. Not only is it impossible to distinguish “controlled substances manufactured and distributed intrastate” from “controlled substances manufactured and distributed interstate,” but it hardly makes sense to speak in such terms. Drugs like marijuana are fungible commodities. As the Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market–and this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular State.3 See ante, at 23—30. Congress need not accept on faith that state law will be effective in maintaining a strict division between a lawful market for “medical” marijuana and the more general marijuana market. See id., at 26—27, and n. 38. “To impose on [Congress] the necessity of resorting to means which it cannot control, which another government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on other governments, which might disappoint its most important designs, and is incompatible with the language of the constitution.” McCulloch, supra, at 424.

http://straylight.law.cornell.edu/supct/html/03-1454.ZC.html

The result of the case, striking down a medicinal marijuana law, is out of liberal mainstream, and the argument is out of the conservative mainstream, so I would have to say that Scalia's opinion here is out of the mainstream. It also just doesn't make any sense in the context of his other opinions. All I can figure is that he hates dope.

And thank you, again, for the informative posts.

That's one thing (perhaps the only thing) I like about discussions of this type: The occasions where I learn some things.

[Larry]

Rutan v. Republican Party of Illinois – I don’t agree with the ruling but to argue that a governor elected by a majority can screen employees doesn’t seem to me to be extreme, and I’m a third party supporter.

Gonzalez v. Raich – Again, I personally disagree with his ruling but to use this as an example of Scalia being a wacko is tenuous at best.

The man has written some brilliant constitutional opinions that I’m sure you support.

So, what you're saying is:

A ruling that supports the right of a chief executive to demand that 100% of all state employment shall be from his political party, and which uses as it's justification the opinion that the patronage system is a fundamental, necessary part of our nation, which therefore must be preserved to prevent a collapse of civilization which is already underway, isn't just a bit on the extreme side.

And neither is a ruling that says that the Constitutional authority to "regulate interstate commerce" gives the federal government the authority to outright prohibit an activity which is neither interstate nor commerce, because it might be affected.

However, a ruling which says that states have the authority to draw congressional districts, well, that's clearly the sign of a whackjob on the bench.

(Now, as to Ginsberg, I strongly suspect her real opinion was that drawing racially-designed districts is OK if it's done for the purpose of increasing minority voting power, but not if it's done to decrease it. I suspect, as I think you do, that this concern for states rights was more a case of being out of her mainstream.)

[Duncan]

So, what you're saying is:

A ruling that supports the right of a chief executive to demand that 100% of all state employment shall be from his political party, and which uses as it's justification the opinion that the patronage system is a fundamental, necessary part of our nation, which therefore must be preserved to prevent a collapse of civilization which is already underway, isn't just a bit on the extreme side.

And neither is a ruling that says that the Constitutional authority to "regulate interstate commerce" gives the federal government the authority to outright prohibit an activity which is neither interstate nor commerce, because it might be affected.

However, a ruling which says that states have the authority to draw congressional districts, well, that's clearly the sign of a whackjob on the bench.

(Now, as to Ginsberg, I strongly suspect her real opinion was that drawing racially-designed districts is OK if it's done for the purpose of increasing minority voting power, but not if it's done to decrease it. I suspect, as I think you do, that this concern for states rights was more a case of being out of her mainstream.)

I clearly stated I disagreed with the ruling. I just don't think that classifies him as extreme.

I think the abuse of the commerce clause by congress is obscene and Scalia should be ashamed of that ruling.

Regarding his affirmative action ruling, he states that the federal courts should not force states to have affirmative action programs. Like the gerrymandering ruling I guess Ginsburg sided with states right in that case? The bottom line is that opposing affirmative action is not out of the mainstream. Take a look at any recent poll.

Regarding Ginsburg, she didn't let her dissent get in the way of the facts of the case. The district was drawn specifically along racial lines. Everyone here in Georgia readily admitted it, from black politicians to the good ole boys who liked corralling democrat votes, to the local media. The fact that a couple witnesses denied it is a joke. The district was drawn to elect a black politician, period. Again, google the map of the district.

And yes, she is an activist, just read the following:

"maintaining that such scrutiny is particularly inappropriate to districting contexts where legislatures are necessarily focused on groups and the protections of the Voting Rights Act preclude the need for enhanced federal court involvement to prevent unconstitutional racial discrimination."

So she is basically saying that the protections of the voting rights act trump the courts from protecting against unconstitutional racial discrimination. Denying anyone the right to vote was never even the issue and I fail to see why she even invoked the voting rights act at all. I guarantee you that if a bunch of good ole boys down here in Georgia drew up a map that placed all blacks into one district she would not argue for it the states right to do so.

That is an activist judge being her opinion not on the constitution but her personal racial views.

[Larry]

As I pointed out, I suspect (based on nothing other than her reputation) that the reason Ginsburg supported States Rights in redistricting in this case, was because they were doing it to increase the number of majority-black districts. (I suspect that if the lines had been drawn to prevent a majority-black district, she would have ruled differently. But that's just an uninformed opinion.)

But simply considering the case by itself, rather than "but if it had been . . . ", all she ruled was that states draw the boundries. And this is the case that you list to prove that she's an activist nutjob.

Meanwhile, from Scalia, you have a decision that says that not only is political patronage legal, but that the reason it's legal is because it's a fundamental foundation of our society, and that it needs to be encouraged because it's leading to the collapse of civilization.

And a ruling that

the Constitutional authority to "regulate interstate commerce" gives the federal government the authority to outright prohibit an activity which is neither interstate nor commerce, because [interstate commerce] might be affected.

And your response to both is "well, I don't agree with the ruling, but it's not out of the mainstream".

[Duncan]

As I pointed out, I suspect (based on nothing other than her reputation) that the reason Ginsburg supported States Rights in redistricting in this case, was because they were doing it to increase the number of majority-black districts. (I suspect that if the lines had been drawn to prevent a majority-black district, she would have ruled differently. But that's just an uninformed opinion.)

You are correct that is exactly what she did and lied about “other political” reasons in her dissent. That is an activist judge. Ignore the constitution to achieve a political outcome. Isn’t that what the democrats consistently bring up during recent confirmation hearings. How many times do you hear the dems claim they are worried a nominee will inject politics, religion and/or personal beleifs into their decisions?

But simply considering the case by itself, rather than "but if it had been . . . ", all she ruled was that states draw the boundries. And this is the case that you list to prove that she's an activist nutjob.

“the protections of the Voting Rights Act preclude the need for enhanced federal court involvement to prevent unconstitutional racial discrimination.” That doesn’t bother you in the slightest?

Meanwhile, from Scalia, you have a decision that says that not only is political patronage legal, but that the reason it's legal is because it's a fundamental foundation of our society, and that it needs to be encouraged because it's leading to the collapse of civilization.

And a ruling that

And your response to both is "well, I don't agree with the ruling, but it's not out of the mainstream".

At least I’m not so blindly partisan that I won’t criticize those I support.

Your response is a that a judges support of political patronage and upholding a ban on pot are more worrisome than a judge that rules discrimination based on race is ok to achieve a preferred political outcome.

It’s obvious who is out of the mainstream here.

[DjTj]

You are correct that is exactly what she did and lied about “other political” reasons in her dissent. That is an activist judge. Ignore the constitution to achieve a political outcome. Isn’t that what the democrats consistently bring up during recent confirmation hearings. How many times do you hear the dems claim they are worried a nominee will inject politics, religion and/or personal beleifs into their decisions?

“the protections of the Voting Rights Act preclude the need for enhanced federal court involvement to prevent unconstitutional racial discrimination.” That doesn’t bother you in the slightest?

Okay, let me explain something about the Voting Rights Act ... Actually, let's let Justice Kennedy explain the Voting Right Acts to you:

In 1965, the Attorney General designated Georgia a covered jurisdiction under §4( of the Voting Rights Act, 79 Stat. 438, as amended, 42 U.S.C. § 1973b( (Act). 30 Fed. Reg. 9897 (1965); see 28 CFR pt. 51, App.; see also City of Rome v. United States, 446 U.S. 156, 161 (1980). In consequence, §5 of the Act requires Georgia to obtain either administrative preclearance by the Attorney General or approval by the United States District Court for the District of Columbia of any change in a "standard, practice, or procedure with respect to voting" made after November 1, 1964. 42 U.S.C. § 1973c. The preclearance mechanism applies to congressional redistricting plans, see, e.g., Beer v. United States, 425 U.S. 130, 133 (1976), and requires that the proposed change-not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." 42 U.S.C. § 1973c. "[T]he purpose of §5 has always been to insure that no voting procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." Beer, supra, at 141.

Between 1980 and 1990, one of Georgia's 10 congressional districts was a majority black district, that is, a majority of the district's voters were black. The 1990 Decennial Census indicated that Georgia's population of 6,478,216 persons, 27% of whom are black, entitled it to an additional eleventh congressional seat, App. 9, prompting Georgia's General Assembly to redraw the State's congressional districts. Both the House and the Senate adopted redistricting guidelines which, among other things, required single member districts of equal population, contiguous geography, nondilution of minority voting strength, fidelity to precinct lines where possible, and compliance with §§2 and 5 of the Act, 42 U.S.C. §§ 1973 1973c. See App. 11-12. Only after these requirements were met did the guidelines permit drafters to consider other ends, such as maintaining the integrity of political subdivisions, preserving the core of existing districts, and avoiding contests between incumbents. Id., at 12.

A special session opened in August 1991, and the General Assembly submitted a congressional redistricting plan to the Attorney General for preclearance on October 1, 1991. The legislature's plan contained two majority minority districts, the Fifth and Eleventh, and an additional district, the Second, in which blacks comprised just over 35% of the voting age population. Despite the plan's increase in the number of majority black districts from one to two and the absence of any evidence of an intent to discriminate against minority voters, 864 F. Supp. 1354, 1363, and n. 7 (SD Ga. 1994), the Department of Justice refused preclearance on January 21, 1992. App. 99-107. The Department's objection letter noted a concern that Georgia had created only two majority minority districts, and that the proposed plan did not "recognize" certain minority populations by placing them in a majority black district. Id., at 105, 105-106.

The General Assembly returned to the drawing board. A new plan was enacted and submitted for preclearance. This second attempt assigned the black population in Central Georgia's Baldwin County to the Eleventh District and increased the black populations in the Eleventh, Fifth and Second Districts. The Justice Department refused preclearance again, relying on alternative plans proposing three majority minority districts. Id., 120-126. One of the alternative schemes relied on by the Department was the so called "max black" plan, 864 F. Supp., at 1360, 1362-1363, drafted by the American Civil Liberties Union (ACLU) for the General Assembly's black caucus. The key to the ACLU's plan was the "Macon/Savannah trade." The dense black population in the Macon region would be transferred from the Eleventh District to the Second, converting the Second into a majority black district, and the Eleventh District's loss in black population would be offset by extending the Eleventh to include the black populations in Savannah. Id., at 1365-1366. Pointing to the General Assembly's refusal to enact the Macon/Savannah swap into law, the Justice Department concluded that Georgia had "failed to explain adequately" its failure to create a third majority minority district. App. 125. The State did not seek a declaratory judgment from the District Court for the District of Columbia. 864 F. Supp., at 1366, n. 11.

Twice spurned, the General Assembly set out to create three majority minority districts to gain preclearance. Id., at 1366. Using the ACLU's "max black" plan as its benchmark, id., at 1366-1367, the General Assembly enacted a plan that

"bore all the signs of [the Justice Department's] involvement: The black population of Meriwether County was gouged out of the Third District and attached to the Second District by the narrowest of land bridges; Effingham and Chatham Counties were split to make way for the Savannah extension, which itself split the City of Savannah; and the plan as a whole split 26 counties, 23 more than the existing congressional districts." Id., at 1367; see Appendix A (attached).

http://straylight.law.cornell.edu/supct/html/94-631.ZO.html

I know that is a little long, but the point is that Georgia drew that district to comply with the Voting Rights Act. Basically, since Georgia has a history of suppressing Black votes, the Voting Rights Act places it under close supervision of the Justice Department. The main reason Georgia drew that district in such an awkward shape was to comply with Justice Department mandates. Ginsburg is not invoking the Voting Rights Act out of the blue in her dissent; it is actually an essential part of the case.

Ginsburg's dissent argues that where a state legislature approved a district to comply with the Voting Rights Act, the Courts should defer to a decision approved by both the Executive and Legislative Branches.

At least I’m not so blindly partisan that I won’t criticize those I support.

Your response is a that a judges support of political patronage and upholding a ban on pot are more worrisome than a judge that rules discrimination based on race is ok to achieve a preferred political outcome.

It’s obvious who is out of the mainstream here.

If you think that allowing discrimination based on race to achieve a preferred political outcome is okay, consider this dissent by Scalia in Powers v. Ohio, where he argues that it is okay for a prosecutor to use peremptory challenges to strike Black people from a jury:

All citizens have the equal protection right not to be excluded from jury service (i.e., not to be excluded from grand and petit jury lists) on the basis of irrelevant factors such as race, Carter v. Jury Commission of Greene County, 396 U.S. 320 (1970), or employment status, cf. Thiel v. Southern Pacific Co., 328 U.S. 217 (1946). As Swain suggested, this principle would also prohibit the systematic exclusion of a particular race or occupation from all jury service through peremptory challenges. When a particular group has been singled out in this fashion, its members have been treated differently, and have suffered the deprivation of a right and responsibility of citizenship. But when that group, like all others, has been made subject to peremptory challenge on the basis of its group characteristic, its members have been treated not differently, but the same. In fact, it would constitute [p424] discrimination to exempt them from the peremptory strike exposure to which all others are subject. If, for example, men were permitted to be struck but not women, or fundamentalists but not atheists, or blacks but not whites, members of the former groups would plainly be the object of discrimination.

In reply to this, it could be argued that discrimination is not legitimated by being applied, so to speak, indiscriminately; that the unlawfulness of treating one person differently on irrelevant grounds is not erased by subjecting everyone else to the same unlawfulness. The response to this is that the stricken juror has not been "treated differently" in the only pertinent sense -- that is, in the sense of being deprived of any benefit or subjected to any slight or obloquy. The strike does not deprecate his group, and thereby "stigmatize" his own personality. Unlike the categorical exclusion of a group from jury service, which implies that all its members are incompetent or untrustworthy, a peremptory strike on the basis of group membership implies nothing more than the undeniable reality (upon which the peremptory strike system is largely based) that all groups tend to have particular sympathies and hostilities -- most notably, sympathies towards their own group members. Since that reality is acknowledged as to all groups, and forms the basis for peremptory strikes as to all of them, there is no implied criticism or dishonor to a strike. Nor is the juror who is struck because of his group membership deprived of any benefit. It is obvious, as Strauder acknowledged, that a defendant belonging to an identifiable group is benefited by having members of that group on his jury, but it is impossible to understand how a juror is benefited by sitting in judgment of a member of his own group, rather than of another. All qualified citizens have a civic right, of course, to serve as jurors, but none has the right to serve as a juror in a particular case. Otherwise, we would have to permit stricken jurors to complain not only of peremptory challenges that supposedly deny [p425] them equal protection, but also of erroneously allowed challenges for cause.

http://straylight.law.cornell.edu/supct/html/historics/USSC_CR_0499_0400_ZD.html

Scalia's argument in Powers, like Ginsburg's argument in Miller, is actually rather complex and nuanced. However, both Justices seem very willing to sanction racial discrimination when it is in accordance with their views. Ginsburg is fine with considering race when it helps elect a Black Congressman. Scalia is fine with considering race when it helps a prosecutor put a criminal in jail.

Is it obvious now whom is out of the mainstream?