Scalia's Lack of Honesty

At TAPPED, Scott Lemeiux catches Justice Scalia fibbing again:

One student asked whether Scalia believed the 2000 decision in Bush v. Gore was an example of judicial activism . . . "My first response to that question always is, it's six years ago. Get over it!" Scalia said. He then explained that "It surely is not activist to apply the text of the Constitution, which is what the court did."

Six years? Get over it? Heck, Roe was 33 years ago. When you gonna get over that Justice Scalia? But the more serious point is the claim of textualism for Bush v. Gore. Let's discuss it on the other side.

Lemeiux says:

As for Scalia's claim that he was merely "applying the text of the Constitution," as a particular Justice once said, this is really more than one should have to bear. It would be implausible enough to claim that the text of the 14th Amendment made the use of different standards in the particular case of Florida 2000 -- but apparently not any of the other equally arbitrary different counting standards used in American elections -- unconstitutional. But it's particularly ridiculous coming from somebody so committed to a claim that the equal protection clause should reflect "those constant and unbroken national traditions that embody the people's understanding of ambiguous constitutional texts" that it shouldn't even make gender discrimination constitutionally suspect. (I must have missed that unbroken American tradition of uniform national election standards.)

And so it goes with Scalia, the most intellectually dishonest Justice to sit on the Court that I can remember. Currently I am working on a long piece which will explore what the Framers understood the phrase "judical power" to mean. The text of the Constitution provides that all Judicial power lies with the Supreme Court and those inferior courts created by Congress. Scalia has denigrated the use of the common law tradition in Constitutional interpretation, arguing that the best approach is to take the text as understood at the time it was drafted. Would that Scalia really believed in this approach. Because then he would have to accept that judicial power as understood by the Framers meant common law judicial interpretation as well.

But Scalia is no honest broker. He is a radical extremist intent on imposing his views of what the Constitution should be. In that his opinions are best understood by applying Legal Realism, he is no different than most every Justice. But he is he one who is so supremely intellectually dishonest about it.

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    Re: Scalia's Lack of Honesty (5.00 / 1) (#1)
    by Dadler on Mon Oct 23, 2006 at 04:45:30 PM EST
    On a positive psychologically, though perhaps tangentially, related note, I do remember Scalia laughing very hard at Stephen Colbert's Correspondent's Dinner speech.  As if he really got it.  Go figure.

    Ant's a terribly conflicted guy psychologically, it's pretty obvious, his opinions are often so passionately and subjectively affected you can't help but sense the seething subconscious battles waged in the recesses of their author's brain.

    At least he's not Cheif Justice.

    Small consolation.

    As for the election decided by he and his selectively activist (as we all are) buddies, well, history is not going to be so blithely forgiving or glib about it as he is.  Again, small consolation.  But come on Justice Scalia, "get over it?"  Are you serious?  Are you fifteen?  What else of still-current national import should we just "get over"?  It's not as if we've done all this great work shoring up our electoral system and learning from mistakes to ensure free and fair and secure elections.  Quite the opposite.  We've done little to nothing.

    Re: Scalia's Lack of Honesty (5.00 / 1) (#2)
    by DavidLA on Mon Oct 23, 2006 at 05:12:28 PM EST
    Can anyone truly be this dishonest without actually being just "not very bright"?  As with too many politicians these days, particularly on the right wing, these so-called conservative intellectuals don't seem to understand or sympathize with conventional standards of legal or philosophical discourse. Argument, to them, is merely a means to an end.  An end that they have already decided.  And, to them, they think that that is how everybody thinks.  To me, if they were truly bright intellectually they would conjure up some reasonable arguments that are at least defensible.  Bush v. Gore is not in the least defensible, so Scalia basically doesn't even try, except to dismiss naysayers out of hand.

    Another example of Scalia's inconsistency is when he recently "debated" issues with ACLU President Nadine Strosser where he argued on one hand that he is deciding issues based on the written U.S. Constitution, not "common law" or international law, and shouldn't be concerned with arguments based on writings or laws from foreign countries.   He proceeds then to argue that the Supreme Court has the right to rule on prohibitions to sexual behavior, even between consenting adults in private, because "every society in history has regulated such behavior", or words to that effect. No Constitutional argument there.

    He may have a quick wit, as some claim, but he doesn't appear sharp to me.  His apparent dishonesty comes about because he is not smart enough to realize the contradictions, and is arrogant enought to ignore them when he does.

    Re: Scalia's Lack of Honesty (5.00 / 1) (#3)
    by jerry on Mon Oct 23, 2006 at 05:20:51 PM EST
    It is admittedly hard for me to get over things.

    The August 6 PDB was five years and two months ago.  And I'm not over that.  September 11 was five years and one month ago.  The war in Iraq was 3 years and seven months ago, and the latest soldier to die in Iraq was, uh, well that was today.  And I'm not over that.

    Scalia offended that people wonder if he was a willing part of a Coup d'état, or corrupt, or greedy, or stupid, or just hates America?  Why he should get over that.

    Re Scalia's lack of honesty (5.00 / 1) (#5)
    by aw on Tue Oct 24, 2006 at 12:33:24 AM EST
    As for Scalia's claim that he was merely "applying the text of the Constitution,"  then why did they say at the time that this was such a singular case that it could not be used as precedent in the future?

    Not over it either (none / 0) (#4)
    by Peter G on Mon Oct 23, 2006 at 10:02:28 PM EST
    Although it was (incredibly) six years ago, I remember well reading the briefs in Bush v Gore as they were posted on the Supreme Court's website.  After I read the equal protection argument in the Bush brief I commented to my wife that there must have been some law student who had worked many unpaid hours on the citechecking and proofreading, and then had proposed and drafted this ridiculous, embarrassing argument, and that Ted Olsen had thrown it in just to make the kid feel better, since it only took up a few pages.  Honestly, I thought the argument was frivolous in the legal sense, that is, not seriously arguable.  Of course, that was the argument which prevailed.  So no, I'm not over that.