The art of dissent

I wrote a bit more extensively over at Blog for Democracy's /law blog about this morning's Supreme Court decision on recusal of elected judges in cases involving their campaign donors. The case was a 5-4 decision with all the usual "liberal" players in the majority and the usual "conservative" players in dissent, with Kennedy providing the crucial swing vote (and authoring the opinion.) In a case like this you just know the dissents are going to be juicy, and Justice Scalia came through as always. His entire dissent is so brief yet biting that I can quote it for you here:

Justice Scalia, dissenting.
The principal purpose of this Court’s exercise of its certiorari jurisdiction is to clarify the law. As The Chief Justice’s dissent makes painfully clear, the principal consequence of today’s decision is to create vast uncertainty with respect to a point of law that can be raised in all litigated cases in (at least) those 39 States that elect their judges. This course was urged upon us on grounds that it would preserve the public’s confidence in the judicial system.

The decision will have the opposite effect. What above all else is eroding public confidence in the Nation’s judicial system is the perception that litigation is just a game, that the party with the most resourceful lawyer can play it to win, that our seemingly interminable legal proceedings are wonderfully self-perpetuating but incapable of delivering real-world justice. The Court’s opinion will reinforce that perception, adding to the vast arsenal of lawyerly gambits what will come to be known as the Caperton claim. The facts relevant to adjudicating it will have to be litigated—and likewise the law governing it, which will be indeterminate for years to come, if not forever. Many billable hours will be spent in poring through volumes of campaign finance reports, and many more in contesting nonrecusal decisions through every available means.

A Talmudic maxim instructs with respect to the Scripture: “Turn it over, and turn it over, for all is therein.” Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not. The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed—which is why some wrongs and imperfections have been called nonjusticiable. In the best of all possible worlds, should judges sometimes recuse even where the clear commands of our prior due process law do not require it? Undoubtedly. The relevant question, however, is whether we do more good than harm by seeking to correct this imperfection through expansion of our constitutional mandate in a manner ungoverned by any discernable rule. The answer is obvious.

(internal citations ommitted.)

The one thing I appreciate most in a Supreme Court justice is the ability to write the hell out of a dissent. Retiring Justice Souter will be most missed from the Court for exactly this skill. Justice Blackmun, my personal favorite justice, perfected this art with a dissent that began "Today, the Court launches a missile to kill a mouse." And when he isn't hysterically shrieking about how the Court's decisions will kill people, Scalia can sharpen his disagreement with a decision to such a fine, sharp point that I can't help but smile. Even as I disagree with everything he stands for.

(Also, I really hope his fear of endless billable hours for litigators as a result of a wave of recusal motions comes true, because we big firm lawyers could really use the work!)