Bench Memos

Scalia and the Little Guy

Liberals like to pretend that they want justices who stand up for “the little guy.” But it ain’t necessarily so, as George Leef explains here, noting that cases involving eminent domain, school choice, gun rights, and compulsory union dues usually have the anti-Scalias on the side opposing the interests of the little guy. Along these lines I’ll add my own favorite Scalia dissent, in Johnson v. Transportation Agency, a case where the Court majority upheld a government affirmative-action program; that dissent concludes with this paragraph: 

It is unlikely that today’s result will be displeasing to politically elected officials, to whom it provides the means of quickly accommodating the demands of organized groups to achieve concrete, numerical improvement in the economic status of particular constituencies. Nor will it displease the world of corporate and governmental employers (many of whom have filed briefs as amici in the present case, all on the side of Santa Clara) for whom the cost of hiring less qualified workers is often substantially less — and infinitely more predictable — than the cost of litigating Title VII cases and of seeking to convince federal agencies by nonnumerical means that no discrimination exists. In fact, the only losers in the process are the [plaintiff Paul] Johnsons of the country, for whom Title VII has been not merely repealed, but actually inverted. The irony is that these individuals — predominantly unknown, unaffluent, unorganized — suffer this injustice at the hands of a Court fond of thinking itself the champion of the politically impotent. I dissent.

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