Well, there is a serious internal problem with the theory. It assumes that only Scalia is politically strategic. I.e., he is willing to accept a legal outcome that is not preferable in order to gain a practical political advantage. But the liberals on the court can also be strategic. If they foresee the same consequences, they would have the same incentive to accept a legal outcome that is not preferable in order to avoid the political fallout. To counter Scalia's strategy, they could simply vote to reverse. Moreover, they could do so on procedural grounds and avoid setting any undesirable establishment clause precedent.
At 06:08 PM 10/29/2003 -0500, you wrote:
They may not be so reliably predictable to us, but it's possible that Scalia, using inside information, can predict their votes better. For example, he knows the views they expressed about the cert petition.
Ilya Somin
On Wed, 29 Oct 2003, Trevor Morrison wrote:
> Does Professor Duncan really think the O'Connors, Kennedys, and Breyers of > the Court are that reliably predictable? > > > At 12:11 PM 10/29/2003 -0800, you wrote: > >I have been absent from the list for awhile, so > >forgive me if this post opens up a stale topic. > > > >I wonder about the unintended consequences of a 4-4 > >affirmance in an election year (and at a time when > >judicial nominees are being subjected to the > >filibuster by Senate democrats). > > > >If I were a legal and political advisor to President > >Bush and the republicans, I would call this a best > >case scenario. The Pledge is struck down in June of an > >election year, but without causing an adverse national > >precedent. If I were Bush, I would love such an > >outcome. He can use it to break the filibuster in the > >Senate, and to wrap himself in the Pledge in the > >election. > > > >I wonder if this possibility occurred to Nino when he > >recused himself? > > > >Rick Duncan > > > >--- "Conkle, Daniel O." <[EMAIL PROTECTED]> wrote: > > > In the realm of even more speculative speculation: > > > Perhaps Scalia is > > > confident that the case will go his way even without > > > his participation. > > > If so, then the speculation that Chris proposes > > > might have added > > > credibility. > > > > > > Dan Conkle > > > ************************************** > > > Daniel O. Conkle > > > Professor of Law > > > Indiana University School of Law > > > Bloomington, Indiana 47405 > > > (812) 855-4331 > > > fax (812) 855-0555 > > > e-mail [EMAIL PROTECTED] > > > ************************************** > > > > > > > > > > > > -----Original Message----- > > > From: Chris SCHROEDER > > > [mailto:[EMAIL PROTECTED] > > > Sent: Thursday, October 16, 2003 7:58 AM > > > To: [EMAIL PROTECTED] > > > Subject: Re: recusal > > > > > > > > > I, too, share Sandy's puzzlement about Justice > > > Scalia's recusal. One > > > possible, and admittedly speculative, explanation: > > > The recusal will be > > > invoked often in the eventual confirmation hearings > > > for the next justice > > > (and sooner in confirmation hearings for lower court > > > seats) as a > > > justification for the nominee declining to answer > > > questions about > > > specific issues. "Senator, the norms of judicial > > > conduct prevent me > > > from answering your question because the subject may > > > come before me. An > > > answer now would prevent me from hearing the case, > > > just as Justice > > > Scalia was prevented from hearing the pledge case > > > because of statements > > > he had made earlier about it." Of course, nominees > > > take this line > > > currently, so it is debatable whether the Scalia > > > precedent adds very > > > much to the argument. > > > > > > Chris > > > > > > >>> [EMAIL PROTECTED] 10/15/03 08:03PM >>> > > > Indeed, didn't O'Connor and Rehnquist join Burger's > > > majority opinion in > > > Chambers (1983) that I seem to recall expressly > > > cited the Pledge of > > > Allegiance as an obvious example of a permissible > > > governmental reference > > > to religion? Or was that Lynch v Donnelly (1984)? > > > How would that be > > > different in principle from Scalia's public > > > comments? Maybe they could > > > argue it didn't address the application in the > > > schools context. > > > > > > I think it is inappropriate for a Justice to speak > > > in a public and > > > incautious way about issues likely to come before > > > the Court, but I don't > > > think it amounts to a conflict of interest > > > comparable to a personal or > > > financial connection to a case. It's more > > > analogous, as Sandy suggests, > > > to generalized (or sometimes very specific) > > > "intellectual bias" or > > > "prejudgment" of an issue on the merits. > > > > > > Bryan Wildenthal > > > Thomas Jefferson School of Law > > > > > > -----Original Message----- > > > From: Discussion list for con law professors > > > [mailto:[EMAIL PROTECTED] Behalf Of > > > Sanford Levinson > > > Sent: Wednesday, October 15, 2003 4:20 PM > > > To: [EMAIL PROTECTED] > > > Subject: Re: recusal > > > > > > > > > Given my own views, I'm delighted that Scalia will > > > not be participating, > > > but I'm not clear why he has to recuse himself > > > because of his candid > > > remarks to the Knights of Columbus and not, say, if > > > he had written one > > > of > > > his patented dissents in a school prayer case that > > > made reference to the > > > Pledge and castigated the majority for adopting an > > > illegitimate doctrine > > > that, if applied conscientiously, would "exclude God > > > from the public > > > forums > > > and from political life." > > > > > > Recall Rehnquist's and O'Connor's statements in > > > Garcia that they > > > basically > > > couldn't wait until they had the votes to overrule > > > that decision and > > > return > > > to Ussery. Why didn't that compel recusal? Or > > > Brennan's and Marshall's > > > repeatedly saying that the death penalty was > > > unconstitutional in all > > > circumstances presumably can be interpreted as > > > meaning that they had > > > "pre-judged" each particular capital punishment > > > case. Should they have > > > recused themselves? None of these are rhetorical > > > questions. I really > > > don't understand the theory (or practice) of > > > recusal. > > > > > > sandy > > > > > > > > > > > > At 06:08 PM 10/15/2003, you wrote: > > > > According to a Linda Greenhouse story in > > > today's NY Times, > > > Newdow > > > > is a "lawyer and a medical doctor who has > > > represented himself in the > > > > litigation." (page A14). > > > > Newdow apparently moved for recusal of > > > Justice Scalia because > > > of > > > > remarks that Justice Scalia made regarding the > > > specific case at a > > > meeting > > > > co-sponsored by the Knights of Columbus, which, > > > according to the NY > > > > Times, "played a leading role in persuading > > > Congress to add 'under > > > God' > > > > to the pledge." NY Times: "Justice Scalia's speech > > > at an event for > > > > Religious Freedom Day pointed to the Ninth > > > Circuit's decision in this > > > > case as an example of how courts were > > > misinterpreting the Constitution > > > to > > > > 'exclude God from the public forums and from > > > political life.'" > > > > > >===== > >Rick Duncan > >Welpton Professor of Law > >University of Nebraska College of Law > >Lincoln, NE 68583-0902 > > > >"Politics is not a bad profession. If you succeed there are many rewards, > >if you disgrace yourself you can always write a book." Ronald Reagan > > > >__________________________________ > >Do you Yahoo!? > >Exclusive Video Premiere - Britney Spears > >http://launch.yahoo.com/promos/britneyspears/ > > Trevor W. Morrison > Assistant Professor of Law > Cornell Law School > 116 Myron Taylor Hall > Ithaca, NY 14853 > 607-255-9023 >
Frank Cross Herbert D. Kelleher Centennial Professor of Business Law CBA 5.202 University of Texas at Austin Austin, TX 78712
