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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsProfessor Obama Singled Out Scalia's “Cramped Approach”
from Buzzfeed: http://www.buzzfeed.com/nycsouthpaw/professor-obama-singled-out-scalias-cramped-appr
He's no stranger to criticizing the Supreme Court. In exam answer keys written during his years a law professor at the University of Chicago, Barack Obama criticized Justice Antonin Scalia's views of the substantive rights afforded to citizens under the Constitution's Due Process clause:
From answer memo to the 1996 exam (emphasis added):
The second, more troubling, issue involves the Courts tendency, in cases since Roe, to embrace notions of tradition as a means of curtailing the potential expansiveness of rights recognized under the Due Process Clause. As most of you recognized, this trend is most prominently displayed in Bowers v. Hardwick, but can also be seen in the Michael H. case, a case in which Justice Scalia argued that constitutionally protected substantive rights under the Due Process Clause must be defined at their most specific, traditionally recognized level. As applied to this case, Justice Scalias approach might result in a relatively narrow description of the right to procreate, i.e. the right to bear children within the context of a monogamous, heterosexual marriage; in that case, the PFVA would be subject only to rational basis review.
Helen has several possible answers for Justice Scalia. First, Helen can point out that the majority of the Court has never explicitly embraced Justice Scalias cramped approach to defining the scope of rights protected under the substantive Due Process Clause. Indeed, such an approach, while consistent with Bowers, would be almost impossible to reconcile with the contraception and abortion cases. Second, the absence of any clear tradition with respect to in vitro services for single women cuts both ways: while there may be no clear tradition establishing the right to obtain such services, there is also no clear tradition of preventing single women from obtaining such services - something that could not be said with respect to the tradition of criminalizing homosexual sodomy. Third, Helen might argue for a narrow reading of Bowers, noting the Courts emphasis in that case on the absence of a connection between homosexual sodomy and family, marriage or procreation; in contrast, the connection between Helens ability to access in vitro services and her ability to bear children in both obvious and direct.
From the answer memo to the 1997 exam (emphasis added):
As applied to this case, Justice Scalias approach might lead to an extremely narrow description of the right asserted by Dolly. Indeed, Scalia might argue that cloning does not even qualify as procreation under a standard dictionary definition of the term (for what its worth, Websters Dictionary defines procreation as to bring a living thing into existence by the natural process of reproduction.) Given the recent vintage of cloning technology, it would be difficult to argue that a narrowly-defined right to clone ones self is deeply rooted in the Nations history and traditions. Moore. In the absence of any deeply rooted tradition, Scalia would argue, and in circumstances where the states exhibit no clear political consensus on the issue, the Court has no business minting a new right or liberty interest to protect, but should instead evaluate Futuras ban under rational basis review.
Whether a majority of the current Court would in fact embrace such a cramped reading of the right to privacy/procreate cases is not entirely clear. On the one hand, a majority of the Court appears to reject Scalias approach in Casey. In that case, Justice OConnor not only defends an activity that enjoyed a record of protection prior to Roe that was spotty at best, but also uses relatively expansive language to connect the abortion right with the contraception cases, indicating that these cases all involve decisions concerning not only the meaning of procreation but also human responsibility and respect for it.
read more: http://www.buzzfeed.com/nycsouthpaw/professor-obama-singled-out-scalias-cramped-appr
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Professor Obama Singled Out Scalia's “Cramped Approach” (Original Post)
bigtree
Apr 2012
OP
elleng
(130,865 posts)1. FABULOUS!!!
Kolesar
(31,182 posts)2. Too technical for me, but
Four more years!
Pirate Smile
(27,617 posts)3. Yep. He was/is not a fan.
This shouldn't be a surprise to anyone. It was interesting when his tests & answers came out in 2008.
Thomas is the absolute worst though. His opinion on whether or not there can even BE cruel & unusual punishment is completely repugnant. He's horrible.