In the Mold of Scalia and Thomas

Michael Westmoreland-White has a post on "judicial fundamentalists," in which he forecasts a dim future if more justices like Scalia and Thomas get on the Supreme Court. At the present time, I'm not going to try to refute every one of his points. That is a Herculean task that I may revisit in the future. But I would like to offer some comments. Some of them relate specifically to Westmoreland-White's post, and some of them concern the left's overall approach to conservative judges.

1. I guess my biggest problem with Westmoreland-White's post is that it lumps together Scalia, Thomas, Rehnquist, Roberts, and Alito, as if they all believe the same way. Some of what he says about "judicial fundamentalists" does not apply to all of these judges. He says that judicial fundamentalists don't believe that the Bill of Rights applies to the states, but that's not Justice Scalia's view. According to information on answers.com, "Scalia has supported almost two‐thirds of the decisions declaring state and local legislation unconstitutional." Many of those decisions relate to the Bill of Rights. That must mean that Scalia applies the Bill of Rights to the states!

Westmoreland-White says that judicial fundamentalists are against all environmental protection, but Rehnquist supported a decision allowing polluters to be sued for past pollution (see William Rehnquist on Environment). You need environmental protection laws for polluters to be sued, so Rehnquist must have supported them. Also, see Mark Latham's article, "The Rehnquist Court and Pollution Control Cases," which will appear in the University of Pennsylvania Journal of Constitutional Law (yes, I'm name dropping here). Latham argues that the Rehnquist Court actually upheld and preserved environmental regulations.

2. Westmoreland-White stereotypes the records of "judicial fundamentalists," as when he categorically states that they favor corporations. You see this tactic often when the left discusses conservative judges. For example, the left accused Priscilla Owen of always supporting corporations, when actually there were cases in which she ruled against them (see JUSTICE PRISCILLA OWEN: MYTH VS). The left called Charles Pickering a racist, even though he sent his own kids to an integrated school, an unpopular move in the segregated South (see here). So I'm reluctant to swallow left-wing stereotypes hook, line, and sinker.

3. Westmoreland-White seems to support judges who interpret the Eighth Amendment as a ban on capital punishment. But the Fifth Amendment says that a person cannot "be deprived of life, liberty, or property, without due process of law." Doesn't that imply that a person can be deprived of these things (life included) when there is due process? Westmoreland-White wants judges who read their liberal opinions into the Constitution, not ones who are interested in what it actually means.

4. Maybe there is actually some reasoning that goes into the decisions of "judicial fundamentalists." For example, liberals act like Bush vs. Gore was solely a political decision, as if the Republican justices were simply voting their political preferences. No, they voted out of judicial deliberation. Florida had certain election laws, which the U.S. Constitution respects. The Florida Supreme Court was invalidating those laws, violating its responsibility to stick with legal interpretation. The Republican justices (including the moderate and liberal ones) corrected this judicial activism.

I'm not saying that Westmoreland-White's concerns are totally unfounded. I just disagree with the scenario he presents. He acts as if appointing conservative judges will lead to a fascist America, and I don't think that's necessarily the case.