There is a phenomenon that most liberal law students describe as the devastating effect of reading their first Scalia dissent: You read what you thought was a compelling majority opinion in some good, liberal, results-oriented case, and then you read a blistering, flawless Scalia dissent and realize, "Oh my God, he's right." For some of us, law school is a protracted exercise in fighting the alluring tractor-beam pull of those Scalia dissents. ("How can something so right feel so wrong?") But for all of Scalia's intellectual force, rhetorical genius, and passion, this memorandum will not silence his critics. For those of us who have been arguing that if we formally question judicial integrity in every case, the court will turn into an endless festering judiciary committee hearing, Scalia's arguments make good sense.
But while we all claim to deplore the judiciary committee atmosphere, we also all now demand transparency, ideological litmus tests, and full disclosure. We have lost faith in judicial integrity, and Scalia's call to "trust me" may be too late. I disagree with him, by the way, in his contention that the court cannot survive this scrutiny and criticism. The court has survived it before and will cycle back, in time, to a period of public trust. And perversely, I welcome the openness and frankness evinced in this letter (citations to documents on file with the court notwithstanding). Openness will do far more, ultimately, to foster public trust than baseless secrecy. We live in a transparent age, and the court has managed to huddle in its secret Skinner box for a surprisingly long time. That time may now be at an end.
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