Justice Scalia: "I Am An Idiot"

Hey, I didn’t say it–I think he’s obviously a very smart guy. But according to Scalia:

“People who believe the Constitution would break if it didn’t change with society are “idiots,” U.S. Supreme Court Justice Antonin Scalia says…

In a speech Monday sponsored by the conservative Federalist Society, Scalia defended his long-held belief in sticking to the plain text of the Constitution “as it was originally written and intended.”

“Scalia does have a philosophy, it’s called originalism,” he said. “That’s what prevents him from doing the things he would like to do,” he told more than 100 politicians and lawyers from this U.S. island territory.

According to his judicial philosophy, he said, there can be no room for personal, political or religious beliefs.”

In fact, of course, Scalia’s “originalism” has left plenty of room for the play of his “personal, political, or religious beliefs.” Iocaste brings up one of my favorite examples. This bit of hackery was the result of Scalia’s opinion in Apprendi v. NJ, in which he held (correctly, in my view)* that the 6th Amendment right to a jury trial prohibits people from being sentenced based on factors that were neither adduced in a plea nor proven in front of a jury. This led to one of Scalia’s funnier lines, when in Ring v. Arizona Breyer (the court’s most hackish liberal) joined with the majority striking down a death sentence based on Apprendi despite dissenting in the previous case–not by changing his mind, but by cooking up a farcical 8th Amendment argument instead. Scalia cracked: “There is really no way in which Justice Breyer can travel with the happy band that reaches today’s result unless he says yes to Apprendi. Concisely put, Justice Breyer is on the wrong flight; he should either get off before the doors close, or buy a ticket to Apprendi-land.” It’s funny because it’s true! And yet Scalia decided to ignore Apprendi himself in Harris v. US; as Thomas correctly argued, “The Court’s holding today therefore rests on either a misunderstanding or a rejection of the very principles that animated Apprendi just two years ago.” Now that’s a living Constitution–one whose principles can change in two years!

But, of course, that’s just the beginning. Here are some more of the Greatest Hits from Antonin Scalia’s “living textualist originalism”:

• “Sovereign Immunity”: Perhaps the greatest embarrassment to Scalia’s purported principles, granting that it’s a tough competition, is this ludicrous line of cases. The 11th Amendment prevents, in clear and specific language, a state from being sued by the citizen of another state. Given that the amendment could have just as easily prohibited suits against one’s own state (it’s a specific restriction, not a general principle like the cruel and unusual punishment clause), and such language was considered and rejected by the amendment’s framers, to a “textualist” or “originalist” it couldn’t be much more clear-cut that the Amendment did not confer any broad right of “sovereign immunity” (not surprisingly, since John Yoo notwithstanding the framers did not think for the most part that the principles of the monarchical British state should be copied.) And yet, although he declined to actually explain in originalist terms how this line of cases can be justified, he’s signed on to every major case. To Scalia, apparently ensuring that gang rape victims have no federal remedy and that state university presses can rip off your copyrights are such important outcomes they justify egregious contradictions with his stated principles.
• Speaking of federalism, another case of Scalia’s living constitutionalism can be seen with Raich, in which the text and original meaning of the commerce clause miraculously evolved in less than a decade in order to accommodate the war on (some classes of people) who use (some) drugs.
• Another nice thing about Scalia’s jurisprudence is that when you’re an “originalist” and a “textualist,” you can sort of switch between the two depending on what will produce the most reactionary result. In affirmative action, Scalia’s claim that the Constitution is simply “color-blind” is a plausible reading of the text itself, but a ludicrously implausible reading of the 14th Amendment’s original meaning; obviously, it’s just silly to think that the Reconstruction Congress felt that racial classifications attempted to remedy past injustices were the precise equivalent to those used to uphold a caste system. When it comes to discrimination based on gender discrimination or sexual orientation, conversely, Scalia argues that they’re permitted because the 14th Amendment effectively pertains only to racial discrimination, while all other forms of discrimination are constitutionally self-justifying. This reading is plausible in terms of original understanding, but not in terms of the text of the equal protection clause, which is framed in terms of a general principle (although it certainly could have referred only to race, as the 15th Amendment did.) Scalia simply shifts between different constitutional theories in order to produce his favored result; his theory can justify one or the other, but not both. It evolves enough to prevent affirmative action, but not to prevent gender discrimination. And, of course, these cases contain no hint of Scalia’s “personal, political, or religious beliefs”; consider, for example, his dispassionate, legalistic claim that “Today‚’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda.” (Really, that’s in the U.S. Reports; it’s not a transcript from an interview on Fox News.)
• And, of course, no discussion of Scalia’s living constitutionalism would be complete without Bush v. Gore. Under what theory of originalist textualism, might you ask, does the equal protection clause prevent the use of different standards to count votes in one particular case, but not in any other case, while establishing a remedy that left a vote count that according to the Court’s own theory was just as flawed as the count that was ruled unconstitutional? What originalist claimed before late 2000 that Article II sec. I allowed the federal courts to override state court interpretations of state law? Of course, there isn’t any originalist justification for the decision, and the court doesn’t even bother trying to supply one. The Constitution had to live just enough to put George W. Bush in the White House before going back to roll over in Its grave.

Idiot, judge thyself.

*Correction: looking over Apprendi again, Stevens wrote the majority opinion; Scalia wrote a good concurrence responding to Breyer’s dissent and defending the importance of the right to a jury trial.