McDonald vs City of Chicago Concurring Opinion

Justice John Paul Stevens, one of the worst justices on the court is retiring thank God. Justice Scalia, my favorite justice on the court, is going after his ass for his decent in McDonald v City of Chicago. I love Scalia...I think this concurring opinion is showing some previously held tension between the two men. The good thing is Scalia is going to be on the bench for many more moons!

I'm putting only the first and last paragragphs on this post. The actual opinion is a bit long and these full wordks say it well.

The full opinion is here, Justice Scalia's concurring opinion is on page 52 and runs 14 pages. The entire document is over 200 pages so this will take a bit to read through.

OTIS MCDONALD, ET AL., PETITIONERS v. CITY OF CHICAGO, ILLINOIS, ET AL.

JUSTICE SCALIA, concurring.

I join the Court’s opinion…

I write separately only to respond to some aspects of JUSTICE STEVENS’ dissent. Not that aspect which disagrees with the majority’s application of our precedents to this case, which is fully covered by the Court’s opinion. But much of what JUSTICE STEVENS writes is a broad condemnation of the theory of interpretation which underlies the Court’s opinion, a theory that makes the traditions of our people paramount. He proposes a different theory, which he claims is more “cautiou[s]” and respectful of proper limits on the judicial role. It is that claim I wish to address.....

And the Court’s approach intrudes less upon the democratic process because the rights it acknowledges are those established by a constitutional history formed by democratic decisions; and the rights it fails to acknowledge are left to be democratically adopted or rejected by the people, with the assurance that their decision is not subject to judicial revision. JUSTICE STEVENS’ approach, on the other hand, deprives the people of that power, since whatever the Constitution and laws may say, the list of protected rights will be whatever courts wish it to be. After all, he notes, the people have been wrong before, and courts may conclude they are wrong in the future. JUSTICE STEVENS abhors a system in which “majorities or powerful interest groups always get their way,” but replaces it with a system in which unelected and life tenured judges always get their way. That such usurpation is effected unabashedly, with “the judge’s cards . . . laid on the table,” ibid.—makes it even worse. In a vibrant democracy, usurpation should have to be accomplished in the dark. It is JUSTICE STEVENS’ approach, not the Court’s, that puts democracy in peril.