Thursday, March 21, 2013

"Oh, shut up."

By Craig Albert

Chief Justice Roberts and Justice Alito didn't exactly tell Justice Scalia to sit down and shut up yesterday, but they might as well have.  Scalia's partial dissent in Decker v. Northwest Environmental Defense Center is a twelve-page diatribe repeating familiar Scalian ideas regarding textualism and deference.  The first paragraph of substance -- the one after the obligatory one that spells out which parts of the lead opinion he joins -- is three words long: "Enough is enough."

Seven justices (including Thomas and excluding the recused Breyer) joined the Court's opinion; that lead opinion had nothing whatsoever to say about the dissenting polemic.  But Roberts and Alito were apparently annoyed enough with Scalia's exegesis that they went out of their way to say, in law-talk, "You may have a point, but this is neither the time nor the place."  Thomas's concurring silence speaks volumes to me.