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. kay,

    I’d guess many people like my husband and Elizabeth Warren would have a difficult time proving their Native American heritage. I don’t know if there’s anything more that she can say on the subject.

    I think Warren needs to keep pointing out Brown’s voting record, his position on things like contraceptive coverage, his signing of Norquist’s pledge, his co-sponsoring of the Blunt Amendment, his behind the scenes work to weaken the Volcker Rule–even after the Financial Reform Bill passed–his ties to big money on Wall Street, etc.

  2. MikeS, Please don’t get me wrong, I LOVE Jimmy. He was the Palehose announcer w/ Harry Caray when I lived in Chicago. He then had a radio call in show which was very free spirited, particularly when he forgot to put on the 7 second delay. I merely used him as a “having papers” example. Plus, Jimmy gave LaRussa a hard time which he needed, helped keep down that LaRussa ego for awhile anyway.

  3. Elaine

    I knew a guy in Colorado who said he was part Cherokee and it never even occurred to me to ask him to prove it. All that I am saying is that I went door to door for Elizabeth Warren just recently after her recent ads and after the Boston Globe article. I was there as an official volunteer with other official volunteers wearing an Elizabeth Warren sticker and calling on people I was told to. This issue could cost her the election and it could cost the Democratic majority in the Senate. So what can she do?

    1. Nick,

      Jimmy Piersall was a favorite player of mine. Yes he had a breakdown, but some of it was because he was a free spirit in an era when baseball players were supposed to present a “buttoned-down”, sober appearance unless they were Mickey Mantle or Ted Williams. Piersall was also for a time, the best Center-fielder, as a fielder, in the American League. His arm though was average, whereas Mantle and Kaline had superior arm strength.

      Scalia’s persona does resemble Piersall’s in that both were people who didn’t self edit when they spoke. Difference is that Piersall only was responsible for himself, whereas Scalia is on SCOTUS

  4. Our dog was a golden retriever and we had the papers to prove it.

    My favorite line is from former Red Sox player, Jimmy Piersall. He had a very public breakdown. It was played comically by Anthony Perkins[he threw like a girl] in the movie, Fear Strikes Out. Piersall says, “I’m crazy and I have the papers to prove it!”

  5. White Sox fan, I stand corrected and apologize. You just went up 2 notches in my book, although I predict you don’t care about my book.

  6. If Scalia could he would “run ” for Pope. Of course, he does not need the special shoes or hat to know that he is infallible.
    As to Scalia being an originalist, that is a self identification. He is not an originalist. If he were, his Second amendment jurisprudence would not exclude the first section about a well regulate militia. He is a right wing result oriented judicial activist who sits on the Supreme Court and gets away with conflicts that would disqualify any other judge. He is a Supreme disgrace.

  7. All lawyers are out of touch with what happens to regular people because politicians seldom deprive the rights of attorneys. Through the Internet people who do not have access to courts are exchanging their stories.

    I went door to door for Elizabeth Warren a week ago. Three people slammed their door in my face regarding the Cherokee issue.

    It is perfectly feasible to me that Warren made a mistake 35 years ago by identifying herself as Indian even though she was only part Indian. Maybe the form didn’t define “Indian”. In Western States part Indian heritage is common. In the South and in South Africa, people with only a drop of minority blood are identified as black. In Europe during the Holocaust, people who were 1/32nd or 1/16th Jewish by blood were identified as Jewish even if they didn’t practice the religion. Obama himself may be less than 50% black, since his mother was white and his father even though from Africa, might be less than 100% black. All our DNA is getting mixed up.

  8. Swarthmore mom,

    Just received a robo-call paid for by Crossroads GPS (a group backed by Karl Rove) telling me I shouldn’t vote for Elizabeth Warren–and filled with misinformation about the Affordable Care Act.


    Robocalls aren’t TV ads, but still violate spirit of pledge
    October 08, 2012

    In January, Republican Senator Scott Brown and Democratic challenger Elizabeth Warren promised to keep outside groups out of their high-stakes Senate fight. Their pact specifically blocked super PACs, nonprofits, and other third-party groups from funding television, radio, or Internet ads on the candidates’ behalf. If either Brown or Warren is the beneficiary of such ads, that candidate must pay a financial penalty to charity.

    Now, Crossroads GPS — a group backed by Republican consultant Karl Rove — is running robocalls in Massachusetts that attack Warren, in hopes of helping Brown. Since the candidates’ vow says nothing about mailings or phone calls, these ominous telephone messages do not technically violate the “People’s Pledge” signed by Brown and Warren. But surely they violate its spirit.

    One of the Rove-backed robocalls, according to a transcript posted by Mother Jones, suggests that Warren’s support for President Obama’s health care law could limit Medicare eligibility — even though the law says nothing of the sort. Another call criticizes Warren’s management of a watchdog panel that monitored the federal bank bailout.

  9. nick,
    As a White Sox Fan, I take umbrage at comparing me to the losing Cubs. Secondly, I am glad that you always know what I am going to say, so I guess you already know what my response is.

  10. Just look intently at the picture of Scalia JT provides. A lot can be gleaned from the expression on a persons face. With GW Bush it was a constant smirk for instance. With Scalia I see also the tight smile of a man who believes he is the smartest and the best. This is a man with may active pre-judgments, prejudices if you will, about the environment that surrounds him and his pre-judgments preclude him from seeing any other point of view. Another very bad man, who thinks himself a hero.

    As for the Warren/Brown debate, Gregory’s first question was about the Native American Issue and in asking it at that point it exposed him for the pundit tool that he is.

  11. Posner and Scalia are like the mongoose and cobra. Both have VERY healthy egos.

  12. I loved the Hatch Act when my wife worked for the Federal Court. I could tell all the pain in the ass politicians who wanted to put signs in our yardMost didn’t know what tha[strategically located] we couldn’t because of the Hatch Act. Many didn’t know what that is.

  13. The Incoherence of Antonin Scalia
    Richard A. Posner
    August 24, 2012

    Reading Law: The Interpretation of Legal Texts
    By Antonin Scalia and Bryan A. Garner
    (Thomson/West, 567 pp., $49.95)

    JUDGES LIKE TO SAY that all they do when they interpret a constitutional or statutory provision is apply, to the facts of the particular case, law that has been given to them. They do not make law: that is the job of legislators, and for the authors and ratifiers of constitutions. They are not Apollo; they are his oracle. They are passive interpreters. Their role is semantic.

    The passive view of the judicial role is aggressively defended in a new book by Justice Antonin Scalia and the legal lexicographer Bryan Garner. They advocate what is best described as textual originalism, because they want judges to “look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters’ extra-textually derived purposes and the desirability of the fair reading’s anticipated consequences.” This austere interpretive method leads to a heavy emphasis on dictionary meanings, in disregard of a wise warning issued by Judge Frank Easterbrook, who though himself a self-declared textualist advises that “the choice among meanings [of words in statutes] must have a footing more solid than a dictionary—which is a museum of words, an historical catalog rather than a means to decode the work of legislatures.”

    Scalia and Garner reject (before they later accept) Easterbrook’s warning. Does an ordinance that says that “no person may bring a vehicle into the park” apply to an ambulance that enters the park to save a person’s life? For Scalia and Garner, the answer is yes. After all, an ambulance is a vehicle—any dictionary will tell you that. If the authors of the ordinance wanted to make an exception for ambulances, they should have said so. And perverse results are a small price to pay for the objectivity that textual originalism offers (new dictionaries for new texts, old dictionaries for old ones). But Scalia and Garner later retreat in the ambulance case, and their retreat is consistent with a pattern of equivocation exhibited throughout their book.

    One senses a certain defensiveness in Justice Scalia’s advocacy of a textualism so rigid as to make the ambulance driver a lawbreaker. He is one of the most politically conservative Supreme Court justices of the modern era and the intellectual leader of the conservative justices on the Supreme Court. Yet the book claims that his judicial votes are generated by an “objective” interpretive methodology, and that, since it is objective, ideology plays no role. It is true, as Scalia and Garner say, that statutory text is not inherently liberal or inherently conservative; it can be either, depending on who wrote it. Their premise is correct, but their conclusion does not follow: text as such may be politically neutral, but textualism is conservative.

    A legislature is thwarted when a judge refuses to apply its handiwork to an unforeseen situation that is encompassed by the statute’s aim but is not a good fit with its text. Ignoring the limitations of foresight, and also the fact that a statute is a collective product that often leaves many questions of interpretation to be answered by the courts because the legislators cannot agree on the answers, the textual originalist demands that the legislature think through myriad hypothetical scenarios and provide for all of them explicitly rather than rely on courts to be sensible. In this way, textualism hobbles legislation—and thereby tilts toward “small government” and away from “big government,” which in modern America is a conservative preference.

    So, in a preemptive defense against accusations that textual originalism is political, the book gives examples of liberal decisions that Scalia has written or joined, and there are indeed a number of them (not much of a surprise, though, since he must have voted in at least two thousand cases as a justice of the Supreme Court). In United States v. Eichman, for example, he voted to hold a federal statute forbidding the burning of the American flag unconstitutional, and it was certainly a vote against his ideological grain. But it is a curious example for a textual originalist to give. The relevant constitutional provision—“Congress shall make no law abridging … the freedom of speech”—does not mention non-verbal forms of political protest, and Scalia and Garner insist that legal terms be given their original meaning lest the intent of the legislators or the constitution-makers be subverted by unforeseen linguistic changes. “In their full context,” they assert, “words mean what they conveyed to reasonable people at the time they were written—with the understanding that general terms may embrace later technological innovations.” That approach is inconsistent with interpreting “freedom of speech” to include freedom to burn flags, since the eighteenth-century concept of freedom of speech was much narrower than the modern concept, and burning cloth is not a modern technological innovation. According to William Blackstone, whom Scalia and Garner treat as an authority on American law at the time of the Constitution, freedom of speech forbids censorship in the sense of prohibiting speech in advance, but does not prohibit punishment after the fact of speech determined by a jury to be blasphemous, obscene, or seditious. And so an understanding of free speech that embraces flag burning is exceedingly unoriginalist. It is the product of freewheeling Supreme Court decisions within the last century.

    The decisive objection to the quest for original meaning, even when the quest is conducted in good faith, is that judicial historiography rarely dispels ambiguity. Judges are not competent historians. Even real historiography is frequently indeterminate, as real historians acknowledge. To put to a judge a question that he cannot answer is to evoke “motivated thinking,” the form of cognitive delusion that consists of credulously accepting the evidence that supports a preconception and of peremptorily rejecting the evidence that contradicts it.

    Scalia is a pertinacious critic of the use of legislative history to illuminate statutory meaning; and one reason for his criticism is that a legislature is a hydra-headed body whose members may not share a common view of the interpretive issues likely to be engendered by a statute that they are considering enacting. But when he looks for the original meaning of eighteenth-century constitutional provisions—as he did in his opinion in District of Columbia v. Heller, holding that an ordinance forbidding people to own handguns even for the defense of their homes violated the Second Amendment—Scalia is doing legislative history.

  14. This is really no different than members of other branches of gov’t talking publicly as they do, and often with greater liberty, and less restraint than members of the SCOTUS.

    I find it rather unsettling how W-2 employees of gov’t agnecies are prohibited under laws such as the Hatch Act from making political comments during their employ but yet elected officials do this continually.

    As such I find it to be a conflict of interest when say a governor makes essentially political statements when she says, during official speeches, “The Gray Pary is attacking families by not supporting amendment 32” or “Once again the Yellow Party is showing that it is a stooge of the light bulb lobby.”

    The governor in this example could talk only about the merits of a particular bill or other issues relating to her charter as the state constitution permits.

    Yet, I think we have become accustomed to watching members of the other two branches of gov’t be inherently political about nearly everything they do in the public, it is just that when SCOTUS justices do, it seems much out of the ordinary since they traditionally have not done this as often. and the historical sampling of them is less in number.

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