Justice Antonin Scalia has long been criticized for his habit of discussing pending issues before the Court and abandoning a long tradition of restraint by justices in their public appearances. His most recent defense of torture in a BBC interview has caused yet another controversy over Scalia’s disturbing lack of self-restraint.
Various cases have been brought to the Court on the issue of torture in the last few years with new cases working their way through the appellate courts. It should have been obvious that this is not the time for a spontaneous defense of torture by one of nine people entrusted to review these cases.
Yet, Scalia seemed to throw caution to the winds during a BBC interview. Scalia was openly dismissive of “so-called torture” and those people who raise such claims in outrage. “It seems to me you have to say, as unlikely as that is, it would be absurd to say you couldn’t, I don’t know, stick something under the fingernail, smack him in the face. It would be absurd to say you couldn’t do that,” Scalia said. i He went on to ask: “How close does the threat have to be? And how severe can the infliction of pain be? I don’t think these are easy questions at all, in either direction.” Scalia went on to use the old saw of an argument about a terrorist “about to blow up Los Angeles.”
Of course, you do not know if he has information about a bomb until you torture him — turning this into a rather circular exercise. Moreover, we already have a system for such unprecedented occurrences: the presidential pardon process. No president is likely to stand by and watch some FBI agent criminally charged after saving L.A. from a nuclear attack. The pardon system is a better choice than bending the law to fit some extreme hypothetical. Scalia was arguing for a type of legal relativism that is all to common in this administration.
Putting aside the questionable merits of Scalia’s remarks, there remains the lack of judgment in making such remarks. There was a time when justices refused to make public appearances other than commencements or brief speeches devoid of content. Some like Justice John Paul Stevens still adhere to this principle. Souter also shows such restraint. Indeed, last year I spoke at the Seventh Circuit Conference and flew to Milwaukee on the flight with Stevens. As we chatted someone who had seen me on television came up to say hello and never realized that they were standing next of a Supreme Court justice. Now too many justices seem to cultivate celebrity status when the Court would be benefitted from more in the mold of Stevens. If you missed the marshals, he and his wife looked like just another older couple on a vacation. They seemed quite content to letting Stevens make history without trying to cut a historical image.
Scalia is rightfully viewed as the intellectual force of the Court’s right wing. However, he seems to relish his near icon status with conservatives, often appearing at conservative events to press the flesh and excite the base. These appearances have often been his undoing. In 2006, he held forth on the rights of detainees at Guantanamo Bay, Cuba despite pending cases. Scalia’s public gaffes very likely cost him the Chief Justice position. Indeed, Scalia often seems to follow Oscar Wilde’s rule that the only way to be rid of temptation is to yield to it. For a prior column on this issue, click here
For the full story on the Scalia statements, click here