In the 1960s, when conservative legal scholars railed about an overreaching, activist Supreme Court, it was the Miranda ruling they denounced, along with its author, Republican Chief Justice Earl Warren. In the 1970s -- and '80s and '90s -- those critics directed their firepower at Roe vs. Wade and its author, Republican Justice Harry Blackmun. Now the complaint arises again. The target this time is none other than the current court's preeminent originalist, Republican Justice Antonin Scalia, and his opinion sanctioning individual gun ownership rights in District of Columbia vs. Heller.
As noted by the New York Times, two eminent conservative judges, Richard Posner and J. Harvie Wilkinson III, recently have written to denounce the reasoning in Scalia's controversial opinion and to accuse him of engaging not only in sloppy historical research -- Posner calls it proof that the court can succumb to "snow jobs" -- but also of precisely the type of activism that so offends Scalia. "Heller," Wilkinson writes for an upcoming issue of the Virginia Law Review, "encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts." Then Wilkinson delivers the lethal thrust: The courts that decided Roe and Heller, he says, are "guilty of the same sins."