Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—September 1

2016—As Sherlock Holmes once observed, “it is better to learn wisdom late than never to learn it at all.” But the late learner might have the decency to acknowledge his earlier folly.

In a New York Times piece on Bill Clinton and Kenneth Starr, Linda Greenhouse offers effusive—and appropriate—praise for Justice Scalia’s solo dissent in Morrison v. Olson, the 1988 case in which the Court rejected a separation-of-powers challenge to the independent-counsel statute:

“It was a dissenting opinion of which he was deservedly proud, even perhaps his best work. His words were prescient, his analysis airtight.” [Emphasis added.]

Although her readers wouldn’t know it, Greenhouse had a very different reaction to Scalia’s dissent back in 1988, when she complained of its supposedly “fevered tone” and quoted only a four-word “sarcastic reference” in it. Indeed, she regretted back then that the independent-counsel statute did not intrude more on presidential power. Only the use of the independent-counsel statute against President Clinton and others in his administration awakened Greenhouse to the separation-of-powers problems that were manifest to Scalia. (More here.)

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