No Sweat: Scalia Publicly Declares Abortion, Death Penalty, Criminalizing Homosexuality “Absolutely Easy” Questions

Associate Justice Antonin Scalia is again making headlines with controversial public statements. I have previously written about Scalia and the advent of the celebrity justice. Scalia clearly relishes the public attention, even though his public controversies likely cost him the Chief Justice position on the Court. Continuing his celebrity tour before conservative groups, Scalia thrilled his “base” by declaring that the criminalization of homosexuality, abortion, and the death penalty are “absolutely easy” questions.

Scalia told the enraptured crowd at the American Enterprise Institute:

“The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.” It appears that the evolving standard under the Eighth Amendment, for example, still does not make the death penalty a difficult question for Scalia. The Cruel and Unusual Punishments Clause of the Eighth Amendment was designed to evolve — that is the original intent. Thus, its meaning changes with time. In Trop v. Dulles, 356 U.S. 86 (1958), Chief Justice Earl Warren held that “The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” It is not therefore an easy question in simply noting that the death penalty was once accepted in all fifty states. The question is how society has evolved since that time. Otherwise, we would still be nailed people’s ears to the public pillory.

I have occasionally defended Scalia who has at least maintained a coherent approach to the interpretation of the Constitution in many areas unlike many of his colleagues who seem to adopt ad hoc approaches depending on the circumstance and desired outcome. While I strongly disagree him in a number of different areas (including these “easy” areas), Scalia often offers well-reasoned arguments from a heavily texualist and originalist perspective. However, his insatiable desire to be a judicial rock star has undermined his legacy and standing. This trend is now spreading to other justices like Ginsburg who are increasingly making controversial public statements before rapturous crowds.

I greatly valued the model of John Paul Stevens who avoided public controversies and speeches — speaking through his opinions. These speeches — done with the assistance of members of Congress and political groups — not only harm the Court as an institution but the reputation of these justices themselves.

Source: CBS

84 thoughts on “No Sweat: Scalia Publicly Declares Abortion, Death Penalty, Criminalizing Homosexuality “Absolutely Easy” Questions”

  1. If you would only try, you could do it.My mouth is watering.I have never seen the movie.What be said did not annoy me much, for I knew he did not mean it.My brother is see king a job.I was wondering if you were doing anything this weekendI was wondering if you were doing anything this weekendI lost the door key about here.You look as if you didn’t care.It’s not his work that bothers me£» it’s his attitude

  2. Too late, too late I arrive. At least I cam piss here to mark my love of the issues here, and my existence.
    Wikipedia. Shelley, passive resistance

    Written on the occasion of the massacre carried out by the British Government at St Peter’s Field, Manchester 1819, Shelley begins his poem with the powerful images of the unjust forms of authority of his time “God, and King, and Law” – and he then imagines the stirrings of a radically new form of social action: “Let a great assembly be, of the fearless, of the free”. The crowd at this gathering is met by armed soldiers, but the protestors do not raise an arm against their assailants:

    “Stand ye calm and resolute, Like a forest close and mute, With folded arms and looks which are Weapons of unvanquished war. And if then the tyrants dare, Let them ride among you there, Slash, and stab, and maim and hew, What they like, that let them do. With folded arms and steady eyes, And little fear, and less surprise Look upon them as they slay Till their rage has died away Then they will return with shame To the place from which they came, And the blood thus shed will speak In hot blushes on their cheek. Rise like Lions after slumber In unvanquishable number, Shake your chains to earth like dew Which in sleep had fallen on you- Ye are many — they are few”

    Anybody who has read the Sedition Act of 1918? The one Obama is using. Obama, how a bad choice becomes the best choice. How about sending your kids to sit down outside the polls on election day in passive protest of our rape. Give ’em their first taste of tyranny and tear gas.

  3. Jerome

    We don’t have a Bill of Rights anymore. You can see that by looking back at my comments and reactions from this group of bloggers.

    I was detained by DOJ for 5 months for the stated reason that I filed noncriminal documents in federal courts. I don’t have a criminal record, wasn’t charged with a crime, and didn’t get a bail hearing. So that was a violation of the 5th Amendment. Furthermore, not only is there no definition of a vexatious litigant, but whatever a vexatious litigant is was not me. I was unable to get a hearing on the merits for my claim of First Amendment Retaliation and conspiracy to deprive rights under color of law. There wasn’t even an evidentiary hearing and no answers were filed, only BS motions which didn’t even result in a motions hearing. When I filed for summary judgment in federal court, the federal magistrate ordered the defense counsel not to respond. When I filed an appeal in the 10th Circuit, 04-1108, the clerk labeled the magistrate as the judge, when in fact Edward Nottingham was the judge.

    DOJ recognized as valid warrants, documents stating that I should be arrested that didn’t specify a federal offense and were not backed by an oath or affirmation, so that was a violation of the 4th Amendment.

    I was made to suffer criminal penalties by the U.S. Department of Justice solely for my First Amendment activities, i.e. filing in Court. I verified my documents under penalty of perjury but wasn’t accused of perjury. If there was something the matter with my documents then they should have prosecuted me for perjury.

    Pro se litigants are the new untouchables. Because lawyers are worried about unemployment they will never help someone who has been pro se. But 99 or 98% of the population cannot afford the $100K necessary for a lawyer in federal court. So once you are a victim of a constitutional violation outside of court, there is no redress in federal court because pro ses are not allowed procedural due process in federal court. Pro se litigants are never allowed to win. They are never allowed a jury trial. They are subject to constant ridicule. The lawyers simply lie in Court in order to win and there is nothing that pro ses can do about it.

    As an example of lying in Court and getting away with it, simply look at the PACER documents for my litigation with DOJ. In the District of Columbia, 09-0562 Kay Sieverding v. DOJ, DOJ filed a motion to dismiss document 8-1 and on page 23 claimed that the Prisoner Tracking System can be used without a criminal prosecution. That is contrary to what DOJ published in the Federal Register official Notice for PTS in Vol 69 p. 23214. I sued them again and in 11-01032 document 31, page 3, DOJ counsel, David C Rybicki wrote “Nothing in that Federal Register Notice states, as Plaintiffs erroneously claim, that the JABS must be used only to process individuals arrested for criminal offenses”. However, in the Federal Register Vol. 66 p. 20478 and also Vol. 71 p. 52821, DOJ published official Privacy Act Notices, required by 5 U.S.C. section 552a, saying that the categories of individuals whose records should be in the Joint Automated Booking System are alleged criminal offenders only. Because DOJ twice misrepresented its own Privacy Act Notices in the Federal Register, Judge John D. Bates ruled that “JABS was not limited to arrests for a criminal charge” so now DOJ can take photos of anyone’s body and put them into a national database.

  4. The reason we have a Bill of Rights is to protect us from someone like Scalia, who believe in an extremely limited degree of freedom and rights. The Founders knew there would be people like Scalia to clamp down on our liberty.

  5. You know Mike we had an anon troll sometime back who was very fond of the “tirdy turd and a turd” trope before he left in a huff. I’m just sayin’ . . .

    1. Gene,

      So was one of the dogs who wrote the same sentiments almost word for word.

  6. Mike Spindell,

    I’m sorry, I couldn’t understand anything you just said, because of your New York accent.

  7. Since everyone listens to television there is very little regional accent these days. I’ve lived in the East, the West, and the Midwest and what I observe is a lot of stereotypes and prejudice about people from other areas. I really believe that on the coast the classes are more separated and the rich are richer. In the midwest the children of immigrants and even welfare families are more likely to go to school with the children of the rich simply because the communities are smaller. There are a lot of Jews and Italians in the midwest too.

  8. Hymee has a good point about geographical diversity. The midwestern states are less elitist and more egalitarian due to their manufacturing industries and also to their heritage from immigrations of poor Europeans, especially those with Northern European agricultural origins. In those societies almost everyone worked. I’ve never met anyone from the midwest who had generations of wealthy ancestors even if their parents were rich. There aren’t very many non catholic private grade and high schools in the midwest either so usually the classes are at least somewhat mixing in school.

  9. I suggest that the original intent on the Founders of the Contitution and the Supreme Court would have intended to keep the members of the Court white, protestant, elitist, and certainly not extend to them the benefits of socialized medicine. ScaliaCare affords all Justices and their families free medical care for life. They pay no insurance premiums. If the original intent of the Framers were to be imposed we would have no Italians (Alito and Scalia), no blacks (Thomas), no women (Sotomayer, Kagan and Ginsberg). Kennedy the Mick might have a problem. Roberts sounds Anglo.

    This aspect is one of the reasons Scalia doesnt want to bring any history into a Constitutional debate. He wants us to assume from the text of the Constitution the original intent of the Founders. This all drops off the page when you address Constitutional Amendments which occur in a different time warp. My God, Scalia would not want to intertain the original intent of the Framers of the Fourtheenth Amendment who were Radical Republicans and Reconstructionists.

    Scalia speaks in NewYorkie. Listen to the oral arguments and you will hear things like “tirdy turd and a turd” which would mean 33rd Street and 3rd Avenue in NY. Ginsberg, Alito, Kagan, Sotomayor, all sprech the same dialect and so we have five of these justices within the same little isolated band width of America. Thomas is the only Southerner. No one from the Midwest, Great Plains, Far West, until one gets to California and we get Kennedy and Breyer.

    If we are going against the intent of the original Founders and allowing Itals, blacks and women on the bench then we must insist on some geographical diversity.

    As for the notion of original intent. Scalia should keep his large mouth shut. The rest of us know that he does not fit.

    Take away their ScaliaCare before the bankrupt the rest of us.

    1. “Listen to the oral arguments and you will hear things like “tirdy turd and a turd” which would mean 33rd Street and 3rd Avenue in NY.”


      Are you kidding? I was born and raised in Brooklyn and New York and I’m willing to bet my diction and pronunciation are at least as good as yours. My Father and Mother also New Yorkers and children of immigrants don’t speak that way either. Fact is in my entire living and working in New York, perhaps 5% of the people I knew had anywhere near that stereotypical accent. Midwestern people being accent free is also nonsensical as the relevance of
      Lawrence Welk as a TV host. What you are really talking about is that you look down on people because of how they speak and feel it should disqualify them from office of distinction. You are showing your prejudice and the ridiculous belief that the Mid West is America’s heartland. It isn’t and never was.

  10. Do you mean this?

    Canon 3A(6). The admonition against public comment about the merits of a pending or impending matter continues until the appellate process is complete

    Judges and lawyers do what ever they want

  11. Doesn’t the ABA have model rule of professional conduct for attorneys…… And judicial canons that prohibit such statements made…..

  12. At least biblical law recognizes pro se rights. The Constitution was devised to keep slaves from court after a slave won freedom in England through habeas corpus. see Slave Nation, by Alfred and Ruth Blumrosen

    I’m not claiming to be a biblical scholar but I found the following through using an online search for “judge” and I don’t remember seeing anything in the Old Testament justifying slavery.

    “Absalom said moreover, Oh that I were made judge in the land, that every man which hath any suit or cause might come unto me, and I would do him justice!” 2 Sam 15:4

    “And I charged your judges at that time, saying, Hear the causes between your brethren, and judge righteously between every man and his brother, and the stranger that is with him.” Deut 1:16

    “Then both the men, between whom the controversy is, shall stand before the LORD, before the priests and the judges,” Deut 19:17

    “When they have a matter, they come unto me; and I judge between one and another, and I do make them know the statutes of God, and his laws. Ex 18:16

    “For I have told him that I will judge his house for ever for the iniquity which he knoweth; because his sons made themselves vile, and he restrained them not.” 1 Samuel 3:13

    “For all manner of trespass, whether it be for ox, for ass, for sheep, for raiment, or for any manner of lost thing which another challengeth to be his, the cause of both parties shall come before the judges; and whom the judges shall condemn, he shall pay double unto his neighbor.” Ex 22:9

    “Then both the men, between whom the controversy is, shall stand before the LORD, before the priests and the judges, which shall be in those days” Deut 19:17

    “Thou hast searched all my stuff, what hast thou found of all thy household stuff?” Gen 31:37

    “set it here before my brethren and thy brethren, that they may judge betwixt us both.” Gen 31:37

    “Then the congregation shall judge between the slayer and the revenger of blood according to these judgments” Num 35:24

    “Ye shall do no unrighteousness in judgment: thou shalt not respect the person of the poor, nor honor the person of the mighty: but in righteousness shalt thou judge thy neighbour. Leviticus 19:15

    “And thou shalt come unto the priests the Levites, and unto the judge that shall be in those days, and enquire; and they shall shew thee the sentence of judgment” Deuteronomy 17:9

    “And the judges shall make diligent inquisition: and, behold, if the witness be a false witness, and hath testified falsely against his brother; then shall ye do unto him, as he had thought to have done unto his brother: so shalt thou put the evil away from among you.” Deuteronomy 19:18-19.

    “The LORD therefore be judge, and judge between me and thee, and see, and plead my cause, and deliver me out of thine hand.” 1 Samuel 24:15

    “And thou, Ezra, after the wisdom of thy God, that is in thine hand, set magistrates and judges, which may judge all the people that are beyond the river, all such as know the laws of thy God; and teach ye them that know them not.” Ezra 7:25

    “Do ye indeed speak righteousness, O congregation? do ye judge uprightly, O ye sons of men?” Psalm 58-1

    “Stir up thyself, and awake to my judgment, even unto my cause, my God and my Lord Judge me, O LORD my God, according to thy righteousness; and let them not rejoice over me.” Psalm 35:23-25

    “The king that faithfully judgeth the poor, his throne shall be established for ever.” Proverbs 29:14

    “Lift up thyself, thou judge of the earth: render a reward to the proud.” Psalm 94-2

    “Before the LORD; for he cometh to judge the earth: with righteousness shall he judge the world, and the people with equity.” Psalms 98-9

    I pled these bible verses to the 8th Circuit to argue that self representation is a common law right in addition to a statutory right. But I was unsuccessful.

  13. Scalia’s statement serves to assure everyone he will continue to enforce Biblical law (Christian Sharia) over Constitutional law.

  14. Kay – I believe he was referring to the fact that by Fat Tony’s concept of original intent chattel slavery should still be legal and blacks should only count for 3/5s of a person when performing the census.

    While it is not possible to know it can be assumed, at least while he is speaking for public consumption, that he has some legal reasoning to get around “original intent” on this subject. But then again he performs that same magic any time it suits him to justify a ruling.

    In that way he is like certain religious bigots who use their holy books to condemn things they don’t like while completely ignoring rules in the same book against things they do like.

  15. Waldo 1, October 8, 2012 at 11:26 am

    IF you adopt his method of interpretation, then those legal questions ARE easy to answer.
    So is slavery.

    But the answer that derives is the wrong answer.

  16. I have a copy of Scalia’s book “Making Your Case the Art of Persuading Judges” and I liked what he wrote about judicial axioms — that one can’t benefit by one’s own misconduct.

  17. Gene,
    you know my stance on both semi-automatic and automatic weapons. They belong in the hands of the military, not civilians.

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