Document Type

Article

Publication Date

2005

Abstract

This article explores Justice Scalia's views of judicial review of administrative action, as revealed in his writings on public land law, as both a scholar and a Supreme Court justice. It examines and explains why Professor Scalia favored judicial review of public land administration while Justice Scalia seems to abhor it. In a sweeping law review article published in 1970, Professor Scalia argued that the doctrine of sovereign immunity historically did not apply in public lands cases. On the Court he has penned two of the most significant decisions addressing judicial review of public lands administration, each of them imposing new restrictions (or reviving old ones) on the availability of judicial redress for executive unlawfulness. In Lujan v. National Wildlife Federation (“Lujan I“), Justice Scalia used the law of standing, injected with separation of powers principles, to foreclose programmatic judicial review of public land classification. And last year, in Norton v. Southern Utah Wilderness Alliance (“SUWA“), he used traditional mandamus principles to foreclose judicial review of officials' alleged failure to achieve a plain congressional mandate to maintain the wilderness quality of public lands. Justice Scalia's imprint on public land law was foretold by his scholarly writings, including his public lands article, which place great emphasis on protecting executive discretion. He favors judicial review for the vindication of traditional private rights while disfavoring it as a means of ensuring the implementation of statutory, public values in the face of the contrary exercise of executive discretion.

Publication Citation

83 Denv. U. L. Rev. 259 (2005).