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
I do think the gist of this post, that Scalia likes the limelight and that this is generally a bad thing for the Court as an institution, but I’m not sure about the specific criticisms of Scalia’s legal opinions. IF you adopt his method of interpretation, then those legal questions ARE easy to answer. Perhaps not so for the death penalty IF the original meaning of the cruel and unusual punishment standard was supposed to evolve. I suspect Earl Warren saying it was intended to be an evolving standard does not make it so in Scalia’s eyes.
Speaking of orcs . . .
Elaine, What I found interesting is you could see the wheels turning as he thought who he should name. He covered his ass after the reaction to Scalia and then started naming Kennedy and others.
The Bobby Valentine question was mocked by baseball writers everywhere. Sports reporters have a good horseh!t detector. I would have liked to seen both candidates show comity and tell Howdy Doody it was a horsesh!t question.
Scalia has stayed too long at the fair.
It’s time to start a serious national discussion on the changes to the Supreme Court that JT has recommended.
nick,
I’m not taking anything you say personally–just responding to your comment.
I’d say that Brown let up his guard when he answered the question about who his favorite Supreme Court Justice is. He’s always telling the voters of my state that’s he’s really a moderate in order to get re-elected.
rafflaw,
Brown isn’t as moderate as he makes himself out to be. He was a co-sponsor of the Blunt Amendment and Enemy Expatriation Act. He worked to weaken the Financial Reform Bill and signed Grover Norquist’s anti-tax pledge. He gets tons of money from Wall Street.
Here he is schmoozing with David Koch:
Of course David “Howdy Doody” Gregory sucked..he’s Howdy Doody for Chrissake.
rafflaw, You’re as predictable as the Cubs losing.
Elaine, The context was not particularly for you. All I’m saying is the fact that Scalia would be booed on a UMass campus is hardly a “Stop the Presses” moment, that’s all. Don’t take everything so personal.
Elaine,
That was a amazing moment when Brown named Scalia.
Prof,
I can agree with you that Scalia does stick to his orginalist beliefs, but as Frankly suggested above, those beliefs are not sound. Isn’t he the same Justice that parroted Fox News talking points in his comments during the Affordable Care Act hearing?
nick,
You don’t need to provide context for me. I live in Massachusetts. David Gregory, moderator of the debate, was awful.
*****
Warren, Brown debate; David Gregory the loser
By Marjorie Arons-Barron
http://www.wickedlocal.com/newton/blogs/marjoriearonsbarron/x1087837720/Warren-Brown-debate-David-Gregory-the-loser
Excerpt:
After last night’s Brown-Warren debate at UMass Lowell, co-sponsored by the Boston Herald, supporters of the two spilled into parking lots outside Tsongas Arena, arguing over which candidate won, but they were agreed that the clear loser was moderator David Gregory. As Dan Kennedy observed, it was “a miserable performance.” Gregory spent a third of the time on Warren’s Cherokee heritage and the two lawyer-candidates’ client lists, failing in the latter instance to probe intelligently the public significance of clients they represented.
After inviting Brown to challenge Warren’s character, Gregory allowed Brown to skate away from his own history of exaggerations. In what would become a pattern, Gregory repeatedly let Brown pivot away from answering direct questions. The moderator cut off Warren, permitting Brown to stump speech mini-filibuster. When she got to speak, she largely limited herself to her talking points. Before the debate went live, Gregory asked the 5000-plus audience to “please respect the quality of the debate.” Would he had done his part.
He gave short shrift to immigration reform, energy independence, Afghanistan and the Supreme Court, where the two differ significantly. He could have asked Warren to comment, from a consumer protection perspective, about critical flaws in Brown’s proudest achievements, his bills on crowd-sourcing and legislative insider trading.
Better Gregory had started with Brown’s claim to be a thoughtful independent, more committed to bipartisanship than marching in “lockstep” with partisan Republicans. How does Brown explain the disconnect between the message in his national fundraising pitch and his in-state rhetoric? Gregory could then have followed up by probing why Massachusetts would or would not be better served by a tough consumer advocate, with a distinct perspective on the economy and relatively little sophistication on foreign affairs…
Gregory’s final frolic of quick questions were time wasters and more stupid than Barbara Walters asking an interviewee what kind of tree they would be. Warren did manage one good response, to a question about why Massachusetts has never had a woman Senator or Governor, that she Was trying to do something about it. As to the question of whether Bobby Valentine should be replaced, Brown even ducked that one. Warren was pushed into saying “give him another year,” (ugh) but could have done better couching it as “I’m for protecting jobs; give him another chance with a healthy team.” Also a stupid waste of time.
Ah yes, the poster boy for all that is wrong with the current USSC flaps his gums and removes all doubt as to the intelligence, scholarship and integrity of the bench he holds. A little man in every sense of the word except belt size. An embarrassment to the Court, to the legal profession and to the country.
While there are thousands of points that could be asked of the steaming justice I’ll leave just one as an example. if 200 years of history make deciding homosexual sodomy an easy decision to throw (BTW- Tony, you do KNOW those laws included hetro sodomy, right?). Wouldn’t that same history make the second amendment cover only muzzle-loaded black powder muskets? Original intent and all
Elaine, To provide some context, I doubt it’s very shocking that Scalia would be booed @ a UMass campus.
Swarthmore mom,
I’ve been watching the Warren Brown debates.
http://www.boston.com/news/local/massachusetts/2012/10/02/scalia-new-flashpoint-mass-senate-race/UO4kxWFtB88vxRWVJSmKtJ/story.html Admiration for Scalia just might cost Scott Brown a senate seat.
Don’t the groups he addresses and his remarks call into question his impartiality.
If Justices cannot maintain a degree of separation should we consider legislation to assure that Justices are removed from cases where they have expressed a clear political view?
From The Colbert Report:
The Word – Original Spin
A good Supreme Court justice is a Constitutional scholar first and a time traveling mind reader second.
http://www.colbertnation.com/the-colbert-report-videos/360495/september-29-2010/the-word—original-spin
What I don’t get about the Supreme Court is why they apparently don’t do anything to regulate the appellate courts. For instance, the 10th Circuit has more than 600 opinions imposing so called “filing restrictions” on pro se litigants. These “filing restrictions” are 1) totally unpublished procedure 2) unenforceable except by violating laws.
By violating laws I mean that in order to enforce a filing restriction either the court must direct the clerks to refuse to file a document thereby violating Rule 5 (d)(4) (4) “Acceptance by the Clerk. The clerk must not refuse to file a paper solely because it is not in the form prescribed by these rules or by a local rule or practice.” or by violating the NonDetention Act, 18 USC § 4001 – Limitation on detention; control of prisons “(a) No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”
Scalia has it easy. A curmudgeon’s salary from the treasury for life.