American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia - Joan Biskupic Justice Scalia is one of those people I'd love to have over for dinner (even though I don't quite have his love of opera,) but I don't buy his premise that he's an originalist, i.e. one who argues that the law is to be interpreted in light of the intent of the framers. I mean really, then we'd be back implementing the 3/5ths rule, and I don't buy the idea that the framers all thought monolithically. He despises the idea of a "living Constitution," yet refuses to answer questions that seem to go to the heart of contradictions in his decisions like 1995 United States v Lopez that overturned a federal law regulating guns near schools "because it trampled on state authority," but ten years later voted to "uphold a federal drug law that voided a California policy allowing marijuana use for medical purposes." So where was his reverence for state law in 2005 Gonzales v Raich?

"I do not think," Scalia wrote in Nixon v Missouri Municipal League, "that the avoidance of unhappy consequences is an adequate basis for interpreting a text." Well, perhaps not, but Scalia's arrogance would prohibit any other interpretation of that text but his own. He seems to be quite happy savaging his colleagues (Sandra Day O'Connor was a favorite target - he considered one of her opinions to be "devoid of content.") Biskupic suggests that Scalia's influence on the court could have been even greater had he tried to be a little more diplomatic and attempted to build consensus. He seems to be quite happy railing at cultural change, "...the court is designing a constitution for a country I do not recognize." And perhaps therein lies the rub. He doesn't want the world to change, he doesn't like gays, probably hates the ordination of woman, still goes to a Catholic church where the mass is said in Latin, loves his guns Clarence Thomas said "he loves killing unarmed animals", and the man as head of the household. Conceived in Florence, but born in Trenton -- which he hated -- he now admits to becoming more and more crotchety to the point where he might wish a return to the days of Medician flogging and ear notching as forms of punishment.

In the meantime, times have changed, and some on the court have recognized that. Brennan and others recognized that the United States of today is very different than that of 1789 and if the country is to survive and prosper perhaps some interpretative differences will emerge. Scalia insists that he separates his personal theology and morality from his judicial role, yet he has been quoted as saying that he learned at Georgetown, a Jesuit university, that you must never" separate your religious life from your intellectual life. They're not separate." And just a little before he was nominated to the Supreme Court by Reagan he said "his judicial philoso0phy was "inevitably affected by moral and theological perceptions." Sounds like Sotomayor's famous speech.

The fact remains that through force of will (and perhaps more than a little sarcasm) he has been, to quote Elena Kagan in 2007, "the justice who has had the most important impact over the years on how we think and talk about law." Certainly the term originalist and original meaning are now the prevailing term in any legal discussion. Originalists take the position that the words in the Constitution mean today what they meant in 1789 and must be interpreted in that light. This assumes that the world of today is the same as the world of 1789 and assumes , to quote Justice Brennan, that the greatness of the Constitution lies precisely in "the adaptibility of its great principles to cope with current problems and current needs." The early originalists focused on the framers "intent," but that had to be revised as it became clear that determining intent of the large number of writers of the Constitution proved impossible so the focus then shifted to textual originalism. His argument that in a democracy, the legislature makes the laws and judges interpret it, and that if judges use moral positions in their interpretation they have become lawmakers rather than interpreters, i.e. tying decisions to text prevents judicial despotism (surely he must see the irony of this view with Bush v Gore, surely) does find sympathy with me. But then so does Brennan's view that judges are there to make sure that the system is "fair."

Scalia’s background working for the executive branch under Ford which required him to testify Congress on many occasions, left him with a palpable disdain for the legislative process and legislators in particular. He was quoted once as saying he could take them all on with one hand tied behind his back. In fact, one of his legacies will be less attention being paid to the legislative history of a bill, i.e. what the legislators said during debates (somewhat ironic for a textualist.) If he has any particular bias it would certainly be a sympathy for the executive branch. With five Catholics and no Protestants now sitting on the bench and his strong adherence to conservative Catholicism, one suspects that might influence him as well. One of his less attractive features is his total arrogance in denying any kind of influence.

My suspicion is that Scalia wants a return to the inequality of the old days where the folks in power, the rich, all knew they were superior, that they were better and the courts validated that superiority. The rules become an unbendable way to enforce the distinctions. A preserver of distinctions and inequality.

Sorry for all the references to Brennan but I just finished The Last Liberal: Justice William J. Brennan, Jr. and the Decisions That Transformed America and am reading Justice Brennan: The Great Conciliator. I have a short attention span.

minor editing 11/8/11