Wednesday, June 27, 2007

"This faux judicial restraint is judicial obfuscation. . ."


the above quote is from u.s.s.ct.
justice antonin scalia in an opinion
released monday, deciding f.e.c. v. wis-
consin right to life
-- the campaign
finance case. justice scalia was criticizing
the chief justice, john roberts
.

and.he.did.so.in.a.concurring.opinion!

why do i mention this judicial
"bomb-throwing", as balkinization
so aptly put it
?

because -- it is my guess that justice
scalia can see how the scooter libby
appeals dance is going to end. it
cannot be anything short of naked politics
if -- as i predict -- the d.c. court of
appeals affirms mr. libby's conviction, and
then, the u.s. supreme court grants permissive
certorari -- that would absolutely be a
moon shot. a moon shot this roberts court
can ill-afford, at the moment.

and so -- i think this dance likely ends
with mr. libby in jail, and morrison
remaining good law. that is to say, perhaps
scalia is kicking not roberts, but him-
self
, in the opinions released monday.

perhaps he wishes, only now, that his
opinion in edmond had gone
the full mile -- by explicitly pushing-aside
the morrison analysis, and
articulating an entirely new, exclusive
(and thus over-ruling) test. that, as
the author of edmond, scalia did not do.

and now, the d.c. court of appeals is
duty-bound to apply the law as it stands.

i may be wrong about all this -- but i doubt it.