Bench Memos

Response to Hit Pieces on Scalia — Part 6

I’ve focused much more extensively on Adam Cohen’s recent hit piece on Scalia” (TimesSelect subscription required) than on Kenneth Jost’s similar attack in CQ Weekly.  But Jost’s attack is in many respects even more reckless.  Whereas Cohen at least tried to substantiate his charges, Jost uses the distorted factual assertions in his first two paragraphs (to which my responses to Cohen also apply) as a platform for a broader diatribe against Scalia. 


Let me respond briefly to several parts of that broader diatribe:


1.  Jost begins by asserting that conservatives love Scalia because Scalia “just loves to stick it to the liberals.”  Ah, yes:  me caveman like see Scalia bash commie heads.  Surely it couldn’t be that we conservatives admire Scalia’s powerful exposition of a jurisprudence of original meaning, his sparkling prose, his logical rigor—and his passionate commitment to American principles of political philosophy.

2.  Clipping isolated snippets from Scalia’s extended arguments (and displaying the very quality he purports to decry), Jost mischaracterizes Scalia’s dissents as being “as much vituperation as cerebration.”  He mislabels as “personal attacks” Scalia’s devastating critiques of opposing arguments, and credits other justices for their woeful failure even to respond to those critiques.  And, without assessing the merits of the competing positions, Jost faults Scalia for often being in dissent.  (Oddly, despite being the “Supreme Court editor for CQ Press,” Jost doesn’t know the difference between the “original meaning” and “original intent” species of originalism and mistakenly attributes the latter to Scalia.) 

3.  In addition to his snide subtitle—“Scalia v. Dignity”—Jost asserts that the “irreconcilable right wing cares little for the dignity of the court.”  I’m not sure what Jost expects the “right wing” to reconcile itself to—the Supreme Court’s unconstitutional power grabs, evidently.  Sorry, but we conservatives are faithful to the real Constitution and to the system of representative government that it established.  We care deeply about the genuine dignity of the Supreme Court, but we believe that the Court earns dignity when justices decide cases correctly—and imperils it when they don’t (and especially when they usurp power).  And we recognize that no recent justice has done more to advance the genuine dignity of the Supreme Court than Scalia.  

(I think that I’m now done with Cohen and Jost.  The previous posts in this series are here, here, here, here, and here.) 

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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