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Scalia’s Special Pleading

Justice Antonin Scalia gave a talk at the American Enterprise Institute and gave a list of the issues that had come before the court that he thought were incredibly easy to decide. He said:

“The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion,” he said. “Homosexual sodomy? Come on. For 200 years, it was criminal in every state.”


Okay, now let’s compare that to his take on Loving v Virginia, the case that overturned state laws against interracial marriage. Scalia thinks that case was correctly decided, but why? The same argument for tradition can be made, indeed was made, against that decision. After all, laws against interracial marriage had the same centuries-long history in the common law and in every state in the country (many states had, by then repealed those laws, but the same was true of sodomy laws prior to the Lawrence v Texas case. So why does he support the result in Loving but considers Lawrence to be so obviously wrong that he dismisses it with nothing more than a “come on”? He attempts to explain it in his dissent in Lawrence:

The objection is made, however, that the antimiscegenation laws invalidated in Loving v. Virginia similarly were applicable to whites and blacks alike, and only distinguished between the races insofar as the partner was concerned. In Loving, however, we correctly applied heightened scrutiny, rather than the usual rational-basis review, because the Virginia statute was “designed to maintain White Supremacy.” A racially discriminatory purpose is always sufficient to subject a law to strict scrutiny, even a facially neutral law that makes no mention of race. No purpose to discriminate against men or women as a class can be gleaned from the Texas law, so rational-basis review applies. That review is readily satisfied here by the same rational basis that satisfied it in Bowers-society’s belief that certain forms of sexual behavior are “immoral and unacceptable.”

So his way out of this contradiction is merely to adjust the level of scrutiny, so presumably if they had applied heightened review in Lawrence, as they had in Loving, he would have voted to overturn those laws, right? Not a chance in hell. Nor, by the way, do I believe for a moment that, had he been on the court in 1967, he would have voted with the majority in Loving. These aren’t serious arguments, they’re pretexts. Consistent application of his stated principles would require that he vote to uphold state laws against miscegenation, and I have no doubt that if he had been on the court in 1967, when racial discrimination was far more acceptable to society, he would have voted to uphold them. As I wrote back in 2006:

This type of reasoning is quite odd, especially coming from a Justice who roundly criticizes the use of the purpose prong in the Lemon test. Suddenly here, purpose means everything. But even if that was true, any reasonable person would recognize that laws which imprison homosexuals for engaging in anal intercourse while not punishing heterosexuals for the same action (the Texas law specifically targeted only sodomy between those of the same sex, not between those of different sexes) has both the purpose and genuine effect of maintaining “heterosexual supremacy” in the same manner that miscegenation laws were designed to maintain white supremacy.

It’s also odd to argue that rational basis review is satisfied merely by reference to “society’s belief that certain forms of sexual behavior are immoral and unacceptable.” This is a tautology; it argues, in essence, that there is a rational basis for the law so long as those who favor such laws agree with the law. But the same could obviously be said about Loving. It was society’s belief, at least in those states that had such laws, that among the “forms of sexual behavior” that were “immoral and unacceptable” were all forms of sex between people of different races.

Is Scalia then going to argue that the Virginia law at issue in Loving would have survived rational basis review even when he himself admits that the law was “designed to maintain white supremacy”? Apparently so. It seems quite odd to me for someone who calls himself a textualist and an originalist would put such faith in the different standards of review. Either the law violates the text and meaning of the relevant constitutional provisions or it doesn’t, one would think. To say that the law violates the text of the constitution if you apply one test, but not if you apply another, is rather anachronistic for a textualist to argue, particularly a textualist who also argues in other cases that one should ignore all statements of legislative purpose and history.

Also bear in mind that, as an advocate for finding the original public meaning of a constitutional provision, Scalia would undoubtedly have noted that the men who wrote the 14th amendment explicitly told the voters that the equal protection clause would not invalidate state laws against interracial marriage. Again, if he were to be consistent, he would have to be against the ruling in Loving.

In other words, as we’ve seen so many times before, Scalia is a man of principle except when he isn’t. When textualism and originalism get him to the result he likes, he uses them; when they don’t get to the result he likes, he throws them out. Just as he did when he declared in Raich that the interstate commerce clause gave Congress the power to regulate medical marijuana that was neither interstate nor commerce, then in the health care reform challenge suddenly decided that that same clause did not give Congress the power to regulate an undeniably interstate insurance market. And all this while he smugly slams liberal judges for not having the kind of coherent, principled theory of interpretation that he has.

Comments

  1. eric says

    Nobody ever thought the Constitution prevented restrictions on abortion

    Very interesting turn of phrase. Very anti-10th amendment. Some would say that the Constitution does indeed prevent restrictions on citizen behavior pretty much across the board. That the government must give a clear and convincing argument for the need for any restriction.

  2. raven says

    No point if trying to figure out how Scalia thinks. He just parrots the christofascist line.

    The better question is when is going to leave the Supreme court. Since this will be when he is carried out in a box, it reduces down to when is he going to die?

  3. eddarrell says

    It might interesting to compare his statements, now, to AEI, with his statements to the Senate Judiciary Committee on these same issues when he was asked about them during his confirmation hearings.

    Help me out on the history, a bit: My recollection is that abortion was not illegal in most venues until the mid-19th century, when it was outlawed because the operation itself was frequently unsafe for the woman, not to protect a fetus. Am I just remembering it incorrectly?

  4. Chiroptera says

    Nobody ever thought the Constitution prevented restrictions on abortion,” he said.

    Nobody ever thought the earth went around the sun, either. But, you know, when it was discovered it turned out to be kind of obvious to everyone who took another look.

  5. says

    As I grow in political awareness, I’ve noticed one spectrum: Principle-oriented people to position-oriented people. A similar spectrum also applies in discussions of scientific claims.

    Principle-oriented people strive to have consistent, rational, and predictable methods for reaching their position on issues. If you don’t know a principle-oriented person’s stance on a particular issue, you can reasonably predict what their position will be based on how they argue in favor of their known positions. You can reasonably know where they will stand. If they support a position based on a contradictory rationale or bad evidence, they will be more willing to revise their position when this is pointed out, or at least try to provide a substantial difference to justify using a different approach.

    Position-oriented people start out with arbitrary positions and then go looking for principles to argue in favor of those positions, without regard for consistency. If evidence or logic undermines the application of a principle to support that position, they will arbitrarily change principles as dictated by rhetorical convenience. There is no way to predict where they will stand on new issues except looking for raw correlations among similar position-oriented people.

    Of course, I’ll have to revise this spectrum to provide a category for Romney.

  6. says

    Every time this man’s name comes in front of me, I deeply wish for him a fatal heart attack.

    It’s a Pavlovian response to be sure.

    Scalia: Sure wish he’d get a heart attack and die.

    I’m sure he’s not the worst Justice to ever serve on the court, but he does seem to be on an ongoing race to find that peculiar bottom.

  7. yoav says

    Since the only standard we’re allowed to consider is what would have been acceptable for a late 18th century lynch mob then a papist like Scalia should clearly not be allowed to hold any position of authority such as, just a random example, that of a supreme court justice.

  8. percysowner says

    I must say I find the good Justice’s stress that HOMOSEXUAL sodomy is obviously not covered, while apparently heterosexual sodomy is just grand. Perhaps Justice Scalia doesn’t want HIS private practices to be illegal?

  9. says

    Mooning Antonin Scalia is at the top of my bucket list. It’s a reasonable and appropriate response to intractable cases of Conservative Personality Disorder like him and Dick Cheney (#2 mooning target). Not because it would in any way affect their essential vileness or incoherence, but because it’s the only thing I can think of that would offend them as much as every single thing that spews from their maws offends me. Also: it’s considerably easier to get one’s own ass past security perimeters than, say, cream pies. Just sayin’.

  10. Randomfactor says

    No purpose to discriminate against men or women as a class can be gleaned from the Texas law

    Which was not the issue before the court. He’s essentially arguing that gays shouldn’t be considered as a class because gays shouldn’t be considered as a class.

    Shorter Scalia: “Because!”

  11. says

    Bronze Dog –

    The thing about Scalia is that he’s a position-oriented person who pretends to be a principle-oriented one — and criticizes others for not being principle-oriented.

  12. Didaktylos says

    Oh, Scalia is a man of principle all right – it’s just that his actual principles are different from his declared principles. I would be very interested to know how he relates to his female colleagues on the Supreme Court Bench …

  13. coragyps says

    Scalia is 76….

    Just to bum all of you out, as I was recently bummed:

    The average of the ages of the Rolling Stones exceeds the average for the US Supreme Court.

    I read that on the interwebs, so it is necessarily true without me having to, y’know, confirm it or anything.

  14. says

    @Didaktylos:

    I would be very interested to know how he relates to his female colleagues on the Supreme Court Bench …

    IIRC I read an article about him in The New Yorker some years ago, and was astonished to discover he is very close friends with Ruth Bader Ginsburg. As in, their families regularly celebrate holidays together, and he has tremendous respect for her as a colleague and jurist – because unlike Sandra Day O’Connor, Ginsburg is “consistent”.

    Yeah. “Irony” doesn’t begin to cover this.

  15. D. C. Sessions says

    Scalia may be 76, but bile is a well-known preservative, at least where the Court is concerned.

    In any case, enjoy the relatively advanced ages of Scalia and Kennedy while you can, because you can bet that the next Republican Supreme Court Justice will be chosen from the most recent graduating class of Liberty University Law School.

  16. yoav says

    I saw that one of Romney’s liemercials uses the AEI as a refrence. FACEPALM!

    As a non-partisan reference, that is.
    I’m sure that the rMoney campaign ministry of truth has an office somewhere (probably in a country with no labor laws) where thousands of Winston Smiths are working 20 hour shifts redefining the meaning of words and updating the historical record to show that Mittens always had a plan to ensure that people with preexisting conditions are covered, which is an unconstitutional interference by the government aimed to ensure that all Americans have access to a vital service since their a bunch of moochers who abuse the emergency rooms that are a perfect solution for the problem of the uninsured and should be allowed to turn a way anyone who can’t pay. Oh yea, and we have always been at war with Eurasia.

  17. says

    Scalia has also said that the 14th Amendment doesn’t bar discrimination on the basis of sex with his usual excuse “Nobody ever thought that that’s what it meant.”

    http://www.callawyer.com/clstory.cfm?pubdt=NaN&eid=913358&evid=1

    Hey! Nobody thought the 2nd Amendment applied to revolvers and automatic pistols or automatic pistols rifles back when it was written either. But Scalia has no problem applying it to them instead of just saying it protects the right to bear flintlocks and swords.

  18. lofgren says

    Nobody thought the 2nd Amendment applied to revolvers and automatic pistols or automatic pistols rifles back when it was written either.

    Wasn’t it Scalia who argued that the operative word in the 2nd amendment is “to bear,” meaning specifically “to carry?” So the 2nd amendment has “always” been understood to guarantee the right to own and operate any weapon that you can physically lift.

  19. says

    Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion,”

    So easy that he had to hedge it in language of cascading negatives

    “Nobody ever thought the Constiution prevented restrictions on abortion”

    is pretty much saying

    “Everyone thought the Constitution allowed restrictions on abortion”

    but he is saying more than that.

    He is saying

    “Everyone accepts that the Constitution allows every restriction including a ban on abortions”

    Which would be fine as long as he is consistent with his gazillion year precedent of criminalizing homosexual sodomy. (There were exceptions for heterosexual sodomy?)

    Because until the late 1850s abortions were legal.

    This is quintessential Scalia. He “textualizes” his conclusions. That is, he first establishes the conclusion. Then he interprets the text accordingly.

    Raich was another egregious case. That one he actually regulated healthcare from the bench. Also a complete disdain for his pet X Amendment states rights.

    The State of California had decided that cannabis is a medical option, therefore it was factually part of healthcare (unlike Obamacare which was regulating access to healthcare)

    Nope, said Scalia. According to him, growing cannabis for personal use is commerce, and therefore subject to the Commerce clause.

    His BS analogy about “The government can make you eat broccoli” is also flawed. The correct analogy would be that the government can fine you for not buying broccoli.

    Well, by regulating growing of cannabis, because it is fungible, he has set the precedent for regulating what you can grow in your garden.

    Like tomatoes.

    Asshole!

  20. garnetstar says

    Slavery? Easy! No one thought the Constitution restricted owning slaves.

    I have always despised Scalia for not even pretending to uphold his oath off office. He swore to judge based on the law, even when it is counter to his own personal positions and beliefs. All judges must do that, and if in some cases they can’t, they must recuse themselves from those cases.

    Instead, Scalia uses his decisions to advance his own personal political and religious agenda, and that’s all. He is scum who does not even attempt to do what his job requires and is proud of it.

  21. d.f.manno says

    @ Randomfactor says:

    No purpose to discriminate against men or women as a class can be gleaned from the Texas law

    Which was not the issue before the court. He’s essentially arguing that gays shouldn’t be considered as a class because gays shouldn’t be considered as a class.

    Shorter Scalia: “Because!”

    Or he’s “thinking” what I’ve heard too many anti-gay types say: “It’s not discrimination because gays can marry any member of the opposite sex they want, just like straights.”

  22. Michael Heath says

    Bronze Dog writes:

    I’ve noticed one spectrum: Principle-oriented people to position-oriented people.

    In the abstract many political ideologues presume they’re ‘principle-oriented’ to use your phrase. However we repeatedly observe failures by these people when contradictory tribalistic pressures are present, and that’s on the left as well. They deal it with the standard way, avoiding cognitive dissonance through avoidance and denialism.

  23. says

    Wasn’t it Scalia who argued that the operative word in the 2nd amendment is “to bear,” meaning specifically “to carry?” So the 2nd amendment has “always” been understood to guarantee the right to own and operate any weapon that you can physically lift.

    The operative words in the 14th Amendment are “persons” and “citizens.” Nobody thought women weren’t “persons” and “citizens” when it was written.

    As an historical note, private people were allowed to own cannons on the biggest transport vehicles of the time (ships), so I guess we can’t restrict the ownership of tanks either.

  24. Randomfactor says

    “It’s not discrimination because gays can marry any member of the opposite sex they want, just like straights.”

    Which is precisely the kind of sophistry that the court rejected in “Loving.”

  25. says

    “Bronze Dog –

    The thing about Scalia is that he’s a position-oriented person who pretends to be a principle-oriented one — and criticizes others for not being principle-oriented.”

    Tony Ducks is a vile piece of shit and a lying fuckbag for JESUS. I would say that he deserves to be ripped asunder by a pack of rabid wolverines on bath salts but I actually like wolverines and worry about the PTSD they might suffer–never mind the food poisoning–in doing so.

  26. d.f.manno says

    @ Brad:

    What’s the impeachment process for justices?

    Same as any other federal official: majority vote of the House, two-thirds vote of the Senate.

    IOW, never gonna happen.

  27. StevoR says

    @ ^ d.f.manno :

    Never say never but pretty unlikely to be sure.

    Then again, if he does or says something indicating he’s truly gone barking fucking mad &/or is demonstrably incompetent maybe..

    @29. democommie :

    Tony Ducks is a vile piece of shit and a lying fuckbag for JESUS. I would say that he deserves to be ripped asunder by a pack of rabid wolverines on bath salts but I actually like wolverines and worry about the PTSD they might suffer–never mind the food poisoning–in doing so. (Emphasis added.)

    Ahem, pretty sure rabies is an invariably fatal disease so worrying about the future health of the aforesaid wolverines under those circumstances is a bit of a moot point.

  28. Q.E.D says

    Scalia is a lying, hateful, Machiavellian, judiciary fifth column, conservative filth, arsehole who is so deludedly convinced of his intellectual superiority that he revels in his supercilious manner. The French have a useful expression for this kind of person: “tete a claques” (a face that needs slapping)

    When I was in law school, several friends and I agreed that the minute we hear of Scalia’s death we will immediately convene at the local bar to toast his death. Absent friends in different time zones get conference called in, even if they have to drink their Martini at 8:00 am. Rule.

    Given the opportunity I would piss on Scalia’s grave.

    And don’t get me started on Scalia’s lapdog Clarence Thomas (IIRC described by one senate Judiciary committee member as “not on my top 5,000 list of qualified Supreme Court Justice candidates)

  29. Reginald Selkirk says

    Ahem, pretty sure rabies is an invariably fatal disease…

    That used to be the case, but not any more. Prayer healing Medical science some times advances.
    .
    First unvaccinated rabies survivor shares story

    In the weeks that followed, Geise, then 15, a sophomore from a small town in Wisconsin, underwent an experimental treatment and became the first known unvaccinated person to survive the disease. Five more people since have been successfully treated, although two died of unrelated complications.

  30. says

    “Ahem, pretty sure rabies is an invariably fatal disease so worrying about the future health of the aforesaid wolverines under those circumstances is a bit of a moot point.”

    I think some french guy did a while back and a young lady in the U.S. did (it was neither easy nor 100% efficacious, per her ongoing health status). But, yeah, I would wish the wolverines would only ACT rabid–which is pretty much their regular state when food is involved.

  31. Reginald Selkirk says

    garnetstar #23: Slavery? Easy! No one thought the Constitution restricted owning slaves.

    That’s not a good example, because an amendment was later added specifically outlawing slavery; which even Scalia recognizes. In the case of women’s reproductive rights and gay sex, jurists are being asked to apply earlier amendments which do not specifically call out those applications.

  32. Michael Heath says

    Q.E.D. writes:

    And don’t get me started on Scalia’s lapdog Clarence Thomas (IIRC described by one senate Judiciary committee member as “not on my top 5,000 list of qualified Supreme Court Justice candidates)

    While I agree with the former senate member that Clarence Thomas qualifications put him nowhere near any legitimate long list of nominees, Justice Thomas is in no way Justice Scalia’s lap dog. A better analogy is that Clarence Thomas is a bitter Rush Limbaugh whereas Antonin Scalia is Bryan Fischer.

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