Justice Scalia: Tenured Fox in the Democratic Hen-House?

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This paper examines Justice Scalia’s approach to campaign finance adjudication, in particular his skepticism of legislative motive. Three distinct strands of skepticism are identified: power-grabbing, incumbent-bracing and speech-preventing. As regards democracy Justice Scalia is identified as being caught in definitional dilemma whereby his campaign finance jurisprudence appears to serve a particular vision of democracy, which is, itself, the identifiable creature of his approach to constitutional adjudication. Ultimately, it is argued that, whilst a liberal dose of mistrust of government might well be warranted in cases concerning the devices of democracy, in the task of scrutinising campaign finance regulation and reform, a strong argument emerges for suspicion of
judicial motives too since there is as much danger to democracy posed by the tenured fox as by the incumbent one.
Original languageEnglish
Pages (from-to)41-57
Number of pages17
JournalBritish Journal of American Legal Studies
Issue number1
Publication statusPublished - 19 May 2017

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