Scalia is still wrong

My latest in Slate:

“On Thursday, the Senate Judiciary Committee advanced a bill seeking to protect the special counsel from an unjustified removal on a bipartisan 14–7 vote, an important signal of support for Robert Mueller. Majority Leader Mitch McConnell, however, has promised not to bring the Special Counsel Independence and Integrity Act to the Senate floor, and his obstructionism has been bolstered by a bizarre legal claim by some of his Republican colleagues.

In Thursday’s debate on the motion, Sen. Ben Sasse made a stunning argument for voting no: “Many of us think we are bound” by Justice Antonin Scalia’s opinion in the 1988 case Morrison v. Olson. Sens. Orrin Hatch and Mike Lee expressed a similar reasoning for their “no” votes. It’s not a surprise for a senator to defer to Supreme Court decisions. But it is a shock for a senator to say he is bound by a lone dissent in a 7–1 Supreme Court case decided 30 years ago. There is a reason Scalia was all alone in dissent: He was wrong, and his historical assumptions were irredeemably wrong…”

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and American politics, and another project on the origins of independent agencies in America.

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