Scalia's Lack of Honesty
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.
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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