Imagine a Supreme Court without Antonin Scalia. Scalia drives the liberal legal and academic establishment crazy because he is unabashed in his defense of a Constitution free from the lastest political whim or guilt-trip.
The selection of Solicitor General Elena Kagan to be the nation’s 112th justice extends a quarter-century pattern in which Republican presidents generally install strong conservatives on the Supreme Court while Democratic presidents pick candidates who often disappoint their liberal base.
Ms. Kagan is certainly too liberal for conservatives, who quickly criticized her nomination on Monday as a radical threat. But much like every other Democratic nominee since the 1960s, she does not fit the profile sought by the left, which hungers for a full-throated counterweight to the court’s conservative leader, Justice Antonin Scalia.
Scalia's dissent in the Boumediene case (granting Gitmo detainees the right to petition U.S. Courts for a writ of habeas corpus) was classic:
So among the things for which I pray is the health and well-being of Antonin Scalia.
Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of- powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager.
It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a
civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.
The Nation will live to regret what the Court has done today. I dissent....
And Clarence Thomas, John Roberts, and Samuel Alito.
And Anthony Kennedy.
I wish no ill on the other members of the Court, and hope they stay healthy and well also.
But for at least the next three years, the balance of the Court and the fate of our judiciary and nation turn on these five Justices staying just where they are now.
Bonus question: When is the last time a Justice appointed with the expectation of being liberal flipped to conservative?
Scalia Was Right About Releasing Gitmo Detainees
Clarence Thomas Tortured KSM
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