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.