A Stitch in Haste

Chief Justice Scalia's opinion available here.

In other Scalia news:

Speaking before a packed auditorium at Chapman University, Scalia said he was saddened to see the Supreme Court deciding moral issues not addressed in the Constitution, such as abortion, gay rights and the death penalty. He said such questions should be settled by Congress or state legislatures beholden to the people.

"I am questioning the propriety -- indeed, the sanity -- of having a value-laden decision such as this made for the entire society ... by unelected judges," he said.

As is typical with Scalia, this is nothing but an anti-intellectual cop-out. Abortion, gay rights and the death penalty are not just "moral issues," but issues of due process, equal protection and cruel and unusual punishment, respectively -- all of which are most certainly "addressed in the Constitution."

And I am far more willing to question "the propriety -- indeed the sanity -- of" leaving insular minorities who are often the target of naked bigotry to the whims of majoritarianism rather than to judges. I see nothing "proper or sane" about preferring blind submission to activist legislators, or activist electorates, over our founding principles of limited powers, unenumerated rights and judicial review.

Supreme Court Associate Justice Antonin Scalia has joined Justice David Souter in declaring his unmitigated opposition to televising Supreme Court sessions:

"We don't want to become entertainment," he said. "I think there's something sick about making entertainment out of real people's legal problems. I don't like it in the lower courts, and I don't particularly like it in the Supreme Court."

Judiciary Committee Chairman Arlen Specter, R-Pa., has introduced legislation in the Senate that would allow sessions of the high court to be televised. The court has allowed the audio recordings of sessions to be released, but it has refused to allow cameras into its hearing chamber.

Here's the problem I have with Scalia's logic: The nature of the cases the Court hears is such that those "real people's legal problems" are now poised to become my legal problems. It is therefore specious to dismiss my desire to see the process in action as mere "entertainment." To analogize C-SPAN watchers to the voyeurs of Court TV denigrates the civic spirit of the all-too-few people who take an interest in public affairs at all.

Furthermore, the fear that judges will "play to the camera" the way politicians do (e.g., in Congress for C-SPAN) is in my opinion overstated. Supreme Court justices are not politicians. They may very well be political, but they are not politicians.

The right to a public trial is not only a right of the defendant, but also of the public itself. That principle should flow all the way up to the Supreme Court. Taxpayers fund the judiciary, taxpayers should -- through Congress -- have the final say.

Only someone like Justice Antonin Scalia could equate the suffrage movement with criminalizing gay sex:

Scalia railed against the era of the "judge-moralist," saying judges are no better qualified than "Joe Sixpack" to decide moral questions such as abortion and gay marriage.
...
The 70-year-old justice said the public, through elected legislatures -- not the courts -- should decide watershed questions such as the legality of abortion.

Scalia decried his own court's recent overturning of a state anti-sodomy law...

He pointed to the granting of voting rights to women in 1920 through a constitutional amendment as the proper way for a democracy to fundamentally change its laws.

"Judicial hegemony" has replaced the public's right to decide important moral questions, he said.

Of course, the true alternative, namely having no one -- not judges, not politicians, not voters -- use and abuse the law to impose morality at all, never comes up. Go figure.

It seems to me best way to prevent "judicial hegemony" (whatever that means) would be to limit the law to its only legitimate function -- the protection of individual rights -- and not to impose the morality of some, even a majority, on everyone else. But that concept is apparently totally alien to Scalia.

And there's a certain perversity in having the man who wrote the most vicious, mean-spirited Supreme Court opinion of modern times lamenting "judge-made morality." "Moral superiority for me but not for thee" is hardly a robust jurisprudential approach.

Sitting back and allowing legislatures, or electorates, to quash the rights of insular minorities and trample basic human dignities is not "judicial restraint." It's judicial cowardice. And analogizing it to the woman's suffrage movement makes Scalia -- to use his preferred term -- an idiot.

Supreme Court Associate Justice Antonin Scalia peers over the precipice and takes a few steps back:

Scalia on Thursday repeated his strong opposition to invoking foreign law in Supreme Court constitutional decisions — but he said Congress should not legislate against the practice.

"I don't think it's any of your business," Scalia said before a lunch meeting of the National Italian American Foundation that included many members of Congress of Italian descent. "I'll be darned if I think it's up to Congress to tell us how to rule."

Scalia added, "Let us make our little mistakes, just as we let you make yours."

Not bad, not bad at all.

Of course, if he had said, "Let us make our little mistakes, just as we let you make your huge, innumerable, $2.7 trillion worth of mistakes..." then I would have personally sent him a dozen canoli. Oh well...

Baby steps, Nino, baby steps.

In any case, one wonders whether Scalia would feel the same way if a Congressional "mistake" in the form of, say, a jurisdiction stripping statute made its way to the Supreme Court.