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. Scalia has demonstrated time and time again that the law simply isn’t his field.

  2. Blouise, So he’s like Gloria Swanson in Sunset Blvd…”I’m ready for my closeup now, Mr. DeMille.”

  3. Bron,

    militia \mə-ˈli-shə\

    1a : a part of the organized armed forces of a country liable to call only in emergency b : a body of citizens organized for military service
    2: the whole body of able-bodied male citizens declared by law as being subject to call to military service

    Please note that nowhere in the definition of the word – which is substantively the same as in 1776 – does it mention how that body is organized. Again, that we don’t man the militias by hue and cry but by voluntary conscription today is in itself irrelevant to their function of being a locally mobilizable military unit.

    Disagree all you like.

    And if you think anyone should be able to own fully automatic weapons? Then you are simply foolish and unaware of the risks such a policy would entail or you just don’t care about unnecessary risk. Fully automatic weapons have one design purpose: to kill as many people as possible by putting as much lead in the air as possible with varying degrees of discrimination in targets. A stray burst from a semi-auto may kill someone. A stray burst from a fully automatic weapon may kill several people. That’s not even accounting for them being used as they were designed. It’s just a bad idea.

  4. at the time of the founders, there was no national guard. The well regulated militia was comprised of citizens who owned rifles/muskets.

    I disagree, if you want a fully automatic M-16 why not? The nuclear weapon, tank, etc is understandable but an automatic rifle? The militia are citizen soldiers.

  5. As far as I’m concerned the motivation behind all these speaking engagements is the most interesting point of speculation.

    #1. Scalia resents not being Chief Justice and his ego needs the pretense these engagements bring him
    #2. He’s like an aging stage performer who just can’t give up the applause and stroking of an audience
    #3. He needs the money
    #4 Any combinations of 1-3

  6. Mike – so Scalia=Piersall, does that me we can look forward to him issuing an opinion then climbing the bench screaming “IS THAT GOOD ENOUGH FOR YOU FATHER? IS THAT GOOD ENOUGH?”

    1. “Mike – so Scalia=Piersall, does that me we can look forward to him issuing an opinion then climbing the bench screaming “IS THAT GOOD ENOUGH FOR YOU FATHER? IS THAT GOOD ENOUGH?”


      Piersall was actually Nick’s analogy, which I ran with. However, I do think we can envision Scalia running backwards around the bases when he hits his next unconstitutional home-run. Piersall at least waited until he hit his hundredth home-run. 🙂

  7. My point is that the language in that instance is unclear and could be interpreted in different ways – as it has by the relevant case law – but that militias and the right to bear arms are two distinct clauses of the whole.

    “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

    Regulated militias, such as the National Guard, are not the same thing as the absolute statement of the right to keep and bear arms. That we don’t man the militias by hue and cry but by voluntary conscription today is in itself irrelevant to their function of being a locally mobilizable military unit. However, that right to bear arms in itself is an absolute statement, but it is not an absolute right. It cannot be taken from you, but it can be modified. You are free to own all the weapons you wish, but not any weapon you wish. You can have a semi-automatic AR-15 and a boatload of ammo if you want but you can’t have a fully automatic anything (without a collector’s license and registering the weapon) or a nuclear weapon (no exceptions).

  8. Gene H:

    And your point is?

    I am pretty sure the founders meant for the people to own weapons and the best they could. The rifle was around at that time.

    The regulation was to make sure each man could use his weapon and had a minimum of powder and lean.

  9. So then there is the question as to what is “contempt of court”. In 1841 a lawyer named Luke Lawless was incarcerated for not appearing in court in a civil hearing. After that Congress passed 18 USC section 401 limiting the contempt powers of at least federal Courts and since 1841 the only persons subject to imprisonment by the USMS were alleged criminal offenders — it was a crime for a slave to run away. In 2011 the Supreme Court ruled in Turner v. Rogers that there is no right to a lawyer when charged with civil contempt but the cases they referred to were all state cases related to not paying child support, which is a crime anyway. Unfortunately, Judge Bates ruled that therefore one can be subject to contempt imprisonments by the Federal Government without being charged with a crime. The imprisonment I was subjected to used unpublished procedure and violated the most basic due process because the witnesses against me weren’t sworn, I was not allowed to ask them questions, and I was not allowed to present witnesses or documents on my behalf.

    I realize that various people on this blog are hostile to me. But, the case law is being created for our government incarcerate people willy nilly with no formal procedure and no finding that they violated a law passed by Congress.

    There is nothing to stop Congress from holding hearings as to whether there should be a law against “vexatious litigation”. Of course, in Australia when they had such a law they found someone was vexatious for claiming that tobacco companies could be liable. Personally I think the government should actually prosecute people for perjury and that lawyers as well as pro se litigants should verify the documents they file in Court under penalty of perjury. That wouldn’t have justified my arrest as I did verify my documents under penalty of perjury and there is no record anywhere of anyone saying that I even possibly wrote something that was perjury. I asked my third party insurance defense lawyers Christopher Beall, Thomas Kelley, David Brougham etc. to verify their pleadings under penalty of perjury but they refused to do so.

  10. Scalia and Thomas should find another line of work where ethics and conflict of interest don’t matter, maybe Faux News.

    I was hoping that someone would check out Elizabeth Warren’s genealogy in Oklahoma. It’s disgraceful that Brown continues to harp on it. And for the debate moderator to pile on, I have words that would get through moderation.

  11. So, according to Scalia, “Homosexual sodomy? Come on. For 200 years, it was criminal in every state.”

    Hey, Scalia, wasn’t slavery legal in every state for a while there? Huh? Wasn’t it illegal to open a retail store on a Sunday in most states for a while there? Wasn’t it legal to kill somebody in a duel? Wasn’t it legal to beat your wife? Wasn’t it illegal to miscegenate (as has your fellow Justice, Clarence Thomas) in Virginia? Huh? You need more easy questions, man, that’s what you need.

  12. The photo of Scott Brown consorting with and begging David Koch for money is ALL the reason one would need to never ever, ever vote for Scott Brown ….!!!

  13. Contrasted to the modern Webster’s:

    regulate \ˈre-gyə-ˌlāt also ˈrā-\, v.t.,
    regulated, regulat·ing

    1a : to govern or direct according to rule b (1) : to bring under the control of law or constituted authority (2) : to make regulations for or concerning (regulate the industries of a country)
    2: to bring order, method, or uniformity to (regulate one’s habits)
    3: to fix or adjust the time, amount, degree, or rate of

    It means substantively the same thing now that it meant then, Bron.

  14. Impartiality is a prerequisite to justice. As Antonin “Mandated Broccoli” Scalia has consistently demonstrated a predisposition to partisanship, an overly simplistic view of the application of law (under a guise of pragmatism) as well as a penchant for seeking personal attention, he should consider retiring from the court and devote more time to his other job as the go-to right-wing mouthpiece for legal opinions on Fox News.

  15. Justice Holmes:

    I disagree with your take on the second amendment. Well regulated meant something different in 1787 than it does now.

    from websters 1828 dictionary:

    REG”ULATED, pp. Adjusted by rule, method or forms; put in good order; subjected to rules or restrictions.

    put in good order is I believe how the founders meant that.

  16. is Scalia for or against using the court to this end? It seems to me he is putting it back on the states. But then the states really cannot infringe on individual rights.

    I am not sure I understand what he is getting at, except maybe he is a liberal baiter.

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