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Scalia: Overturn 'NYT v. Sullivan'

Supreme Court Justice Antonin Scalia has set his sights on that cornerstone of First Amendment law, New York Times v. Sullivan, legal affairs writer Dahlia Lithwick reports this week in the online magazine Slate. Actually, Norman Pearlstine, lawyer and former editor-in-chief of Time Inc., reported the news in his new book about anonymous sources, Off the Record. After discussing the ruling, Pearlstine adds this parenthetical: "(In an interview, Justice Antonin Scalia told me that given the chance, he would probably vote to reverse New York Times Co. v. Sullivan.)"

Any any law school graduate knows, that was the case that set the actual malice standard for libel of a public official. The decision has its lovers and its haters -- and you can prettily easily figure out how they line up on either side. But of greater interest to Lithwick than Scalia's interest in overturning it is his saying so on the record.

All notions of judicial restraint aside, Lithwick's reaction is to paint Scalia's candor as "vastly preferable to the loaded silence of his colleagues." She writes:

"[M]aybe some of the justices really are operating according to some broad ideological agenda. Maybe the new Roberts Court is in fact committed to overruling decades' worth of 'bad cases.' If Scalia is willing to confess to that kind of project, I'd rather hear the battle plans than not. It's precisely the sort of candor that has been most lacking at judicial confirmation hearings, where each nominee instead takes the fashionable line that precedent is all but sacred."

Her point, as she describes it, is this: "If the Roberts Court is poised for a protracted seek-and destroy mission, better to operate in Scalia's sunshine than in the dark." Of course, a seek-and-destroy mission that publicizes itself is less likely to succeed. Perhaps that suggests that justices who reveal too much about their battle plans end up shooting themselves in their feet.

Posted by Robert J. Ambrogi on July 18, 2007 at 03:25 PM | Permalink | Comments (1)


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