Byline: Stuart Taylor Jr.
A - Liberal justices are politicians on the bench, B - Conservative justices are politicians on the bench, C - Liberal and conservative justices regard each other as hypocrites on this question, D - All of the above
Justice John Paul Stevens, the 88-year-old dean of the Supreme Court's liberal bloc, is a gentleman of the old school. So it carried a special bite when he read from the bench late last month an unusually bitter dissent, castigating the conservative majority. He fumed against an unprecedented decision striking down a Washington, D.C., gun-control law. The conservatives had argued that the 217-year-old Second Amendment, which speaks of the necessity of a "well-regulated militia" and "the right of the people to keep and bear arms," protects an individual's right to keep a loaded handgun at home. Stevens assailed the decision as a betrayal of the conservatives' long-professed devotion to "judicial restraint" and to the Constitution's "original intent." Joined by the other three liberals, he accused the majority of casting aside "settled law" and plunging into the "political thicket."
Justice Antonin Scalia returned fire. Scalia spoke scornfully of the liberals' analysis of the Second Amendment's language and history--so scornfully as to imply that it must be a cover for an anti-gun political agenda. Speaking for the four conservatives and centrist Anthony Kennedy, Scalia accused the dissenters of judicial opportunism: the liberals were seeking to "pronounce the Second Amendment extinct," he said. Scalia dismissed as "particularly wrongheaded" their reliance on a 1939 precedent; slammed as "bizarre" their parsing of the amendment's language; whacked as "wholly unsupported" their discussion of English history, and said that Stevens "flatly misreads the historical record" of the Framers' era.
The two blocs came close to calling each other hypocrites. Are they?
All the justices seem sincere in their legal arguments. But all nine also appear, at times, to act like politicians on the bench. …