Deconstructing Another Stupid Scalia Critic

Monday, May 01, 2006

Supreme Court Justice Antonin Scalia is such an intellectual force that his critics (of which there are many) can't ever seem to logically deconstruct his arguments. Instead, they attack his character and temperament as if he's supposed to take unfair criticism lying down. A recent article in CQ Weekly is the typical anti-Scalia screed:

Conservatives love Antonin Scalia. And no wonder. The Supreme Court justice just loves to stick it to the liberals. And with life tenure he can get away with it.
This is such an absurd statement that I don't know where to begin. I don't recall Justice Scalia ever discussing his penchant for "sticking it" to liberals, most likely because he's too busy defending the Constitution as a Supreme Court justice. The author of this piece, Kenneth Jost, would have been more accurate in saying liberals love sticking it to Justice Scalia.
In recent weeks, Scalia has denounced people who believe in a "living Constitution" as "idiots" and told critics of Bush v. Gore to "get over it."
Right, because text doesn't change over time. I would agree there's something wrong with individuals (yes even those on the Court) who believe a text's meaning can change over time but only a judge can decipher the change. But why does Jost take offense to Scalia telling critics of Bush v. Gore to get over it? Should liberals still be fuming six years later? Is it Scalia's fault President Bush was re-elected (by the country and Florida) in 2004?
He has defended his decision not to step out of a case involving his duck-hunting companion Vice President Dick Cheney, and he has raised a new question about his impartiality in a pending case by publicly declaring that foreign terrorists are not entitled to jury trials.
Despite there not being a way to factually measure someone's impartiality, liberals are so sure Scalia is biased toward the vice president because they hunted together. But life-tenured justices have nothing to gain by practicing nepotism. That is why John Roberts and Sam Alito can hear cases involving the Bush administration even though the president gave them their jobs. They have no reason to favor him.

But what bothers liberals the most about Scalia is that he has spoken publicly about not favoring U.S. trials for foreign blood-spilling terrorists. It's an opinion many sane individuals have, but generic enough to allow the justice to hear cases involving this matter on the Court. We know what Ruth Bader Ginsburg's opinion is on abortion, but you don't hear conservatives screaming for her to step down whenever the Court hears abortion cases.

I find it humorous that Scalia's critics are still bothered by his "gesture" that nearly killed a reporter, and according to Jost, "that was at the least insulting and arguably obscene." More "insulting" and "obscene" than a reporter who disturbed the justice while he was attending church services in a private capacity?
Scalia has staked out some of the most conservative positions of any Supreme Court justice since perhaps the 1930s. And his vote has been decisive in any of the 5-4 decisions where he joined the majority, like the series of cases under former Chief Justice William H. Rehnquist easing the rules for government funding of religious institutions and strengthening states’ rights in disputes over federal powers.
Yes, it is true conservatives usually stake out conservative opinions. It's an unexplained phenomenon scientists are still trying to crack in addition to figuring out why they believe states should have rights impervious to the federal government when everyone knows the men in D.C. knows what's best for the 50 states and its 300 million people.
Scalia's personal influence after 20 years on the court, however, is unclear. In most of those closely divided cases, Rehnquist turned to justices other than Scalia to forge and hold a majority. If he were to retire today, Scalia would be remembered mostly for taking positions in dissenting or separate opinions that even his fellow conservatives sometimes refused to join.
I think Scalia would be remembered as one of the most intelligent justices to serve on the Court, whose critics, like Jost, could only conjecture and be unable to criticize the logic of his opinions.

The reason why Scalia hasn't written an overwhelming number of majority opinions, according to political scientists, is because in order to keep moderate Justices Anthony Kennedy and Sandra Day O'Connor in the crucial 5-4 bloc the opinion would have to be written by a more moderate justice. Don't be surprised when in a few years both Scalia and Thomas are given more majority opinions to write.
On several of his signature issues, Scalia is clearly in the minority on the court. Scalia believes in "original intent" as the only way to interpret the Constitution. At least six of the court's current members disagree, including the new chief justice, John G. Roberts Jr. Scalia believes that foreign law should never be used to help interpret the Constitution. A majority of the justices, including conservative Anthony M. Kennedy, disagree. And none of the other justices agree with Scalia on his stubborn refusal to ever look at legislative history in interpreting congressional statutes.
1: It's way too early to tell whether Roberts believes in "original intent" as he's been on the Supreme Court for less than a year.

2: Of course a majority of justices believe in using foreign law because with Anthony Kennedy they form a liberal majority! But reread how Jost phrases that point, as if there's something wrong with the position that foreign law shouldn't influence interpretation of our Constitution. "Scalia believes that foreign law should never be used to help interpret the Constitution." Why on earth do we need to consult foreign text to interpret how the U.S. Constitution was written? As Scalia has said in his reasoning (conveniently left out by Jost) how do we decide which foreign countries should shape our Constitution? France? Italy? Iran? North Korea? Congo?

I wonder what proponents of a foreign Constitution would say if you tell them a majority of countries have far more strict abortion laws than ours? Can we still use their influence then?

3: Jost is just plain wrong in saying only Scalia refuses to look at history when interpreting legislative statutes. Quite a few justices at some point, including Thomas, have narrowly focused on the text of the law. And that makes sense, American history hasn't always been pretty and if you can get an understanding of the meaning of a stature without conjecture it's the perfect way to go. Jost believes justices can somehow look decades into the past to determine how law makers "felt" when they wrote laws as a tool for modern interpretation.
He accused the six justices who struck down state anti-sodomy laws of taking sides in "the culture war." The five who voted to limit display of the Ten Commandments in government buildings, he said, were guilty of "hostility to religion."
Because justices did take sides in the culture war when they determined it was wrong to ban sodomy. Using Jost's approach, the history of our legislature was hostile to sodomy. Word opinion has been hostile to sodomy. There's nothing in the Constitution that explicitly protects sodomy. Therefore, to say sodomy is a right is to take sides in the culture war.

And justices were hostile to religion when they limited the display of the Ten Commandments because the First Amendment says nothing about displaying religious documents in public.

Jost claims "Scalia's colleagues do not stoop to reply to his personal attacks," but if you read Supreme Court opinions you'll find the justices trading barbs with one another all the time; just read Stevens' concurring opinion (I know, it actually means reading) in Roper v. Simmons, where he attacks Scalia's originalist (and correct) interpretation of the Eight Amendment. But I'm sure Jost doesn't read Supreme Court opinions so I can understand why he lied.
The irreconcilable right wing cares little for the dignity of the court...That's politics perhaps. Scalia, however, is no politician, but a robe-wearing justice. The court - and the public it serves - deserve better.
Better what? Better justices like Ruth Bader Ginsburg who naps during oral arguments? Would that bring "dignity" back to the Court? Does America deserve more justices like the liberals in Kelo who gave the federal government the right to take your property and give it to another private party?

Just what, Mr. Jost, do you mean when you say America deserves better? Because I believe America deserves better, too. More justices like Scalia to frustrate people like Jost who frequently criticize their opinions without bringing up a single one of their legal arguments to debate. But I understand. It's much easier to after Scalia for using the word "idiot" to accurately describe his critics.