Sandy, "an unusually stupid law" would have been priceless, but Stewart wrote "an uncommonly silly law." Judy
Sent from my iPhone > On Oct 19, 2014, at 2:18 PM, Levinson, Sanford V <slevin...@law.utexas.edu> > wrote: > > I don't share Chip's seeming consternation. Is this any different from > references to "an unusually stupid law" (Stewart as I recall in Griswold, > though it might have been Black, who also distanced himself) or Thomas in > Lawrence or, for that matter, Holmes in Lochner, depending on whether one > thinks that he found New York's law "tyrannical"? How is this different from > expressing great admiration for a given part of the Constitution instead of > simply saying "my job is to enforce its commands even if I consider them > stupid or even pernicious"? Scalia should get a pass on this one. > > Sandy > > Sent from my iPhone > > On Oct 19, 2014, at 7:37 PM, Ira Lupu <icl...@law.gwu.edu> wrote: > >> >> I'm a bit bewildered by Scalia's comment and the substantive reactions to >> it. Why in the world is a Justice telling us what he would have voted for >> as a Member of Congress, when that's not his role in the government? >> Perhaps he would not have voted for the NLRA or the APA either; should that >> affect the way he decides labor law or ad law questions under those Acts? >> There is a profound separation of powers problem screaming out from this >> comment. >> Or am I just being a hopeless and quaint naïf, believing that judges >> interpret the statutes enacted by other branches (even when the statutes >> build on prior judge-made doctrines) without regard to the judge's view of >> their legislative merits? Scalia (and all the rest) certainly have >> developed views of the compelling interest test, but that is quite >> irrelevant to whether they would vote to enact that test as legislation.. >> So what exactly is Scalia telling us to "bear in mind"? >>> On Sat, Oct 18, 2014 at 4:44 PM, James Oleske <jole...@lclark.edu> wrote: >>> I'm listening to the replay of the Holt v. Hobbs argument on CSPAN, and was >>> struck a moment ago by this comment from Justice Scalia while discussing >>> "compelling state interest" standard with the Assistant SG: >>> >>> "We’re talking here about a compelling State interest. Bear in mind I would >>> not have enacted this statute, but there it is. It says there has to be a >>> compelling State interest. And you’re you’re asking, well, let’s balance >>> things; let’s be reasonable. Compelling State interest is not a >>> reasonableness test at all." >>> >>> A quick Google search indicates that one of the only places this comment >>> has gotten attention is over on Josh Blackmun's blog: >>> >>> "Is that not significant? He wouldn’t have voted for RLUIPA. Recall that he >>> did write Smith. If so, would he also not have voted for RFRA, as applied >>> to the federal government (put aside the federalism problems)? That makes >>> his [joining the Court's] opinion in Hobby Lobby so much more significant." >>> >>> In answer to Josh's second question, I tend to think Justice Scalia would >>> not have voted for RFRA. Recall, he rejected application of the compelling >>> interest test in Smith in part because he viewed it as >>> >>> "horrible to contemplate that federal judges will regularly balance against >>> the importance of general laws the significance of religious practice" >>> >>> - Jim >>> >>> _______________________________________________ >>> To post, send message to Religionlaw@lists.ucla.edu >>> To subscribe, unsubscribe, change options, or get password, see >>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >>> >>> Please note that messages sent to this large list cannot be viewed as >>> private. Anyone can subscribe to the list and read messages that are >>> posted; people can read the Web archives; and list members can (rightly or >>> wrongly) forward the messages to others. >> >> >> >> -- >> Ira C. Lupu >> F. Elwood & Eleanor Davis Professor of Law, Emeritus >> George Washington University Law School >> 2000 H St., NW >> Washington, DC 20052 >> (202)994-7053 >> Co-author (with Professor Robert Tuttle) of "Secular Government, Religious >> People" ( Wm. B. Eerdmans Pub. Co., 2014)) >> My SSRN papers are here: >> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg >> _______________________________________________ >> To post, send message to Religionlaw@lists.ucla.edu >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >> Please note that messages sent to this large list cannot be viewed as >> private. Anyone can subscribe to the list and read messages that are >> posted; people can read the Web archives; and list members can (rightly or >> wrongly) forward the messages to others. > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are posted; > people can read the Web archives; and list members can (rightly or wrongly) > forward the messages to others.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
