Scalia on Judicial Activism

Justice Scalia, speaking this week to an audience at William Carey University, expressed his familiar views on "judicial activism":

"There are four justices who have sat beside me who believe that the death penalty is now unconstitutional...and they believe it to be unconstitutional because they think it ought to be," he told the WCU audience.

Or maybe they believe the death penalty is unconstitutional because it is unconstitutional. If equal protection of the law means anything, it surely means that convicted defendants should not live or die based on the arbitrary charging decisions made by prosecutors, or the tendency of juries to vote for death when the crime victim is white. [more ...]

"Over the course of the last 15 years, I personally have become convinced that anyone who is committed to racial equality has to be committed to abolishing the death penalty as well," said [Sheri Lynn] Johnson, who co-founded the Cornell Death Penalty Project.

"Judicial activism" is in the eye of the beholder. Justice Scalia's view is cross-eyed. He sees no equal protection violation in the arbitrary administration of the death penalty, but concluded that arguably different standards used by different counties in Florida to recount ballots was an equal protection violation -- one that entitled the Supreme Court to stop the recount, effectively choosing George Bush, rather than Al Gore, as president. If that wasn't judicial activism, what is?

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    So, (5.00 / 1) (#16)
    by bocajeff on Thu Apr 09, 2009 at 03:21:52 PM EST
    from reading all of BTD's past links I've come to the conclusion I first heard back in Hebrew School 30-some years ago: If you want 11 opinions then ask 10 rabbi's...

    However, TChris is arguing that the Death Penalty is unconstitutional because of it's application and not the penalty itself (which has already been noted to have been legal at the time of the constitutions writing). If that's the case then the would TChris then argue that the death penalty is constitutional if (in theory) all the doubts about equal protection were alleviated? I think that is what Scalia is driving at...

    I find Scalia's constant need to deride (5.00 / 1) (#17)
    by Anne on Thu Apr 09, 2009 at 03:22:27 PM EST
    and belittle the intellectual capacity and reasoning of his moderate-to-liberal Supreme Court colleagues to be so unpleasant and unnecessary that for me, anyway, it negates whatever judicial brilliance he actually has or thinks he has.  

    I find his arrogance to be less an indication of his respect and reverence for the Constitution, and more a belief in his own infallibility; perhaps someone should remind him, in the same scathing and sarcastic tones with which he addresses others, that the position of Pope is already taken.

    I'm still not sure that Scalia and Cheney were not separated at birth.

    And what's really funny (5.00 / 1) (#19)
    by jbindc on Thu Apr 09, 2009 at 03:30:15 PM EST
    Is that he and Ginsburg are very tight and actually spend each New Year's Eve together with their families and have for many, many years.

    I think they discuss opera, not (5.00 / 1) (#42)
    by oculus on Thu Apr 09, 2009 at 05:35:39 PM EST
    law or politics.

    Evidentially Both (none / 0) (#46)
    by squeaky on Thu Apr 09, 2009 at 06:28:35 PM EST
    Culture and Law.
    He chalks up his friendship with Ginsburg partly to their shared history as law professors. When they began working together as judges, he says, they would read each other's opinions with a scholarly eye and offer suggestions on the writing. "I would treat her like a colleague on the faculty," he said.


    Ginsburg disagreed with his criticism of the D.C. Circuit, "but I was fascinated by him," she said later, "because he was so intelligent and so amusing."


    But court insiders, including Lorson, who worked at the marble columned building for more than three decades, say they never have known a pair to share so many outside social and cultural pursuits as Ginsburg and Scalia.



    why is that funny? (none / 0) (#30)
    by Bemused on Thu Apr 09, 2009 at 04:15:39 PM EST
      I don't see anything unusual and find it normal and healthy for people to be personall friends sharing respect and affection despite ideological (or political, or social...) differences.

      If a person does not have friends with whom he strongly disagrees on such things that strikes me as a bad sign about him.


    I have many Republican friends, (none / 0) (#38)
    by Joelarama on Thu Apr 09, 2009 at 05:07:57 PM EST
    but none of them are homophobes.  There are are limits to tolerance of opposing views in choosing friends; at a certain point tolerance infringes on self-respect.

    Well, that Ginsburg chooses (none / 0) (#45)
    by dk on Thu Apr 09, 2009 at 06:16:03 PM EST
    to overlook Scalia's homophobia may be a function of their age cohort.  Let's face it, many of the people of her age group are at least somewhat overtly homophobic (and sexist and racist).  If she had a strict policy not to be friendly with anyone who exhibited such qualities, she wouldn't have many friends her age at all.  I think people of that generation who are more enlightened tend to look at the bigots within their age group in a somewhat resigned fashion, i.e. as people who simply didn't have the ability to adapt with the times.  So, they ignore the bigotry and focus on other things.

    As far as people who came of age after the sexual revolution, though, I tend to agree with you. There's not even the available explanation of having to adapt yourself to something new as an adult.  


    oh sure (none / 0) (#52)
    by Bemused on Fri Apr 10, 2009 at 06:17:34 AM EST
      I don't have skinhead friends or friends with better haircuts who share those types of views.

      I do have friends who are adamantly opposed to allowing gay marriage whether through legislation --which I support-- or through judicial decree -- with which I have strong reservations on both philosophical and practial grounds. The problem in my view is ending a discussion with a person with whom one  disagrees by the expedient of claiming his view can have no legitmacy because that view makes him, for example a "homophobe."

      I see an awful lot of that type of "debate" here.


    common sense (4.00 / 1) (#2)
    by diogenes on Thu Apr 09, 2009 at 02:30:52 PM EST
    1.  If the death penalty was accepted when the constitution was written, then it is up to the opponents to prove that it is "unconstitutional".
    2.  If the death penalty is being administered in an inequitable fashion, then fix the administration of it.  No one says that PRISON SENTENCES should be banned and are unconstitutional because they are doled out in the same inequitable fashion.  Traffic tickets are given out in an inequitable fashion-are they unconstitutional too?
    3.  The constitution may not remedy all injustices.  The solution is simple.  PASS A LAW.  

    I am putting a comment here (5.00 / 1) (#6)
    by Big Tent Democrat on Thu Apr 09, 2009 at 03:01:45 PM EST
    ot in reply to diogenes, but to link to a post I wrote about Scalia's disingenuousness on "judicial activism."

    If I was responding to diogenes, I would have linked to this post about Scalia's dishonesty on judicial activism.


    For a more scholarly discussion (3.50 / 2) (#8)
    by Big Tent Democrat on Thu Apr 09, 2009 at 03:04:54 PM EST
    of fake originalism vs. real originalism see this post.

    More on (5.00 / 1) (#9)
    by Big Tent Democrat on Thu Apr 09, 2009 at 03:06:16 PM EST
    In a different thread today you (none / 0) (#41)
    by oculus on Thu Apr 09, 2009 at 05:31:45 PM EST
    assert DK's civility hasn't increased since you left.  But "here" #2 seems to set a standard I haven't seen touched recently!

    I despise the death penalty (none / 0) (#47)
    by MrConservative on Thu Apr 09, 2009 at 08:24:12 PM EST
    But I just can't bring myself to believe that it is unconstitutional.  Nor do I think that the supreme court striking it down would be the best option; if they did that, it could very well lead to a constitutional amendment.  The best strategy, IMHO, is to allow the states to continue removing the death penalty from the books until the only states that are left doing it are the ones in the deep south.  Then we should pass our own constitutional amendment.

    scalia has no business being (3.50 / 2) (#48)
    by pluege on Thu Apr 09, 2009 at 08:42:55 PM EST
    on the SCOTUS. he is an obscene hypocrite, a violentarian, a religious zealot, and a egomaniac. It is a miscarriage of justice in the extreme that he is involved in the ultimate say of Constitutionality in the United States.

    If Scalia is an "originalist" (2.00 / 1) (#1)
    by jbindc on Thu Apr 09, 2009 at 02:23:25 PM EST
    why doesn't he point out exactly where in the Constitution that the death penalty is allowed? Is there some part of the text I missed?

    The death penalty is authorized (5.00 / 2) (#12)
    by Peter G on Thu Apr 09, 2009 at 03:15:13 PM EST
    expressly by the Constitution, under certain circumstances, in several places, jb.  I does not behoove those of us who oppose capital punishment for various reasons to be less than honest about this.  For example, the Due Process Clauses of the Fifth (as to the federal government) and Fourteenth Amendments (as to the states) state that no person may be "deprived of life" by official action "without due process of law."  The Fifth Amendment's double jeopardy clause provides that no person may, for the same offense, be twice placed "in jeopardy of life" or limb (corporal punishment, anyone?) The same Amendment's grand jury clause states that only a grand jury (and not the prosecutor alone) can charge someone in federal court "for a capital ... crime."  There may also be a couple of others.  So yes, TChris is right that if the death penalty is not being administered with "equal protection of the law," or with "due process," then it cannot be utilized.  I believe, in fact, that study after study shows this to be the case.  But I don't think it is plausible to claim that the death penalty is per se unconstitutional because it is, for example, in any and all forms and circumstances inherently "cruel and unusual punishment" under the Eighth Amendment.  The existence of capital punishment as part of the criminal justice system seems to be expressly assumed in the Constitution.

    "Ought to be" (none / 0) (#3)
    by jondee on Thu Apr 09, 2009 at 02:43:10 PM EST
    Just as Scalia evoked the equal protection clause,
    (for maybe the first or second time in his career), because he thought Dumbya ought to be President.

    Once Scalia gets the death penalty back, then it'll be time for him to go to work bringing back the rack and the iron maiden; in an originalist kinda way.


    Don't forget (none / 0) (#4)
    by jbindc on Thu Apr 09, 2009 at 02:55:44 PM EST
    That whole "3/5 of a person" part.  That was "original" too.

    Slavery and wife "thrashing" (none / 0) (#5)
    by jondee on Thu Apr 09, 2009 at 02:58:01 PM EST
    It gets better for Tony all the time.

    Well (none / 0) (#7)
    by jbindc on Thu Apr 09, 2009 at 03:03:15 PM EST
    "wimin" folk were basically chattel too under the "original" Constitution.

    and (none / 0) (#39)
    by Jen M on Thu Apr 09, 2009 at 05:08:04 PM EST
    what are all those 'amendment' thingies

    Relative. n/t (none / 0) (#40)
    by inclusiveheart on Thu Apr 09, 2009 at 05:25:48 PM EST
    justice scalia has rarely (2.00 / 1) (#50)
    by cpinva on Fri Apr 10, 2009 at 12:38:34 AM EST
    expressed an original thought, at least not in public. i'm not certain he'd recognize one if it hit him in the face. it comes as no surprise that he would denigrate those who he thinks do.

    in short, the rumors of justice scalia's deep intellectual prowess are greatly exaggerated.*

    *with apologies to samuel clemens

    I don't see why we waste our time (none / 0) (#10)
    by scribe on Thu Apr 09, 2009 at 03:12:35 PM EST
    on Justice Scalia.

    When it comes to a lot of his opinions, he's plainly intellectually dishonest because he's a politician effecting political ends while wearing a robe.

    That he does it while masquerading as a judge is ... well ... you fill it in.  But he comes from a position of reasoning from the desired result waaaay too much of the time.

    And I agree with him on Heller, Crawford, and a lot of other issues.

    Because Scalia is very persuassive (5.00 / 1) (#22)
    by AX10 on Thu Apr 09, 2009 at 03:57:09 PM EST
    He is able to shift decisions on the court.
    Thomas usually does as Scalia does.
    Afterall, Scalia was able to convert Thomas to Catholicism.  If he can persuade his fellow Associate Justice to change his religion, Scalia most certainly can persuade he and others on matter of what is and what is not constitutional.

    On Justice Thomas (5.00 / 1) (#49)
    by Peter G on Thu Apr 09, 2009 at 09:40:50 PM EST
    relative to Scalia, see my comment #24 below and the link there for back-up.  (The actual stats do show that Thomas agrees with Scalia more than does any other justice -- the rate was 78% of the cases last year -- and by a wide margin (the next highest was Roberts, at 68%).)  The fact that the "dittohead" meme is repeated so often as to Thomas, while you don't hear the claim made about other justices (say Alito, who agreed with Roberts 81% of the time; or Souter, who agreed with Ginsburg in 80% of cases), smacks to me of racism (however unconscious).  I say this even though I find myself disagreeing with Thomas even more than I do with Scalia, and that's saying something.

    You have to look longer (none / 0) (#53)
    by jbindc on Fri Apr 10, 2009 at 08:54:24 AM EST
    Not just last year, but historically.  For example, in the period 1994-1998, Thomas and Scalia agreed significantly more than any two pairings on the Court.

    1994 - agreed 88.2% of the time
    1995 - agreed 87.2% of the time
    1996 - agreed 97.7% of the time
    1997 - agreed 87.1% of the time
    1998 - agreed 84.0% of the time

    From 1999-2003, their agreement percentages were as follows:

    1999 - 89.6%
    2000 - 89.5%
    2001 - 82.5%
    2002 - 84.4%
    2003 - 75.9%

    Over the decade, by far the highest agreement pairing was Thomas - Scalia, with an 86.7% agreement rate.

    And how you get "dittohead" to be racist, is beyond me.  


    rates of agreement (none / 0) (#57)
    by Peter G on Fri Apr 10, 2009 at 11:07:58 AM EST
    Interesting stats from Harvard on rates of agreement.  Seems the Scalia/Thomas rate was higher ten years ago than in the last few years.  SCOTUSWiki gives them term by term and not cumulatively, so far as I can see; otherwise, I would be curious to see how the most recent cumulative five-year rate compares with the older years.  Anyway, my point was simply that in recent Terms there have been rates of justice/justice agreement (including Roberts/Kennedy, to my surprise) equal to or higher than the Scalia/Thomas rate.  Yet you only see comments that "Thomas follows Scalia."  Never "Scalia follows Thomas," and never do you see it claimed that any other justice follows anyone else.  From this I speculated or theorized -- since Thomas is the only African-American on the Court at this time -- that there is an element of unconscious racism at work.  

    I did not say or imply that the term "dittohead" was a racist epithet (in fact, I was the first to use that expression in this thread, I think).  It put it in quotation marks because it is slang, not because I was quoting anyone else.  I used it as a characterization of the remarks made in this thread in two comments, that Thomas typically echoes Scalia, implying (it seemed to me) that he does so mindlessly or at least without exercising independent judgment.  


    You kid (3.50 / 2) (#25)
    by Big Tent Democrat on Thu Apr 09, 2009 at 04:00:31 PM EST
    right? Scalia is incredibly unpersuasive on the Court.

    We waste our time on him (none / 0) (#13)
    by jbindc on Thu Apr 09, 2009 at 03:16:59 PM EST
    One, because he's 73 years old and in relatively good health (I think), so he will be around for a while.  Two, because Thomas basically says "Ditto" to anything Scalia says.  Three, because he is a very persuasive member of the Court and Kennedy, as the swing vote, is the one to be persuaded, and is not exactly a raging liberal himself.

    The notion that Justice Thomas (none / 0) (#24)
    by Peter G on Thu Apr 09, 2009 at 03:59:23 PM EST
    just echoes Scalia has been debunked many times on this site and elsewhere.  Last Term, the rate of Scalia/Thomas full agreement was 78%, which is very high, but ranks only 4th among all pairings. Higher rates of agreement:  Roberts/Kennedy, Roberts/Alito, and Souter/Ginsburg.  

    We waste time on him because he is smart, (none / 0) (#14)
    by Joelarama on Thu Apr 09, 2009 at 03:18:10 PM EST
    cunning, and in a position to deny millions of Americans their fundamental rights.

    such as? (none / 0) (#18)
    by bocajeff on Thu Apr 09, 2009 at 03:23:35 PM EST
    You can guess for yourself. (none / 0) (#20)
    by Joelarama on Thu Apr 09, 2009 at 03:48:33 PM EST
    I'm not getting into it with you.

    Actually (none / 0) (#21)
    by Bemused on Thu Apr 09, 2009 at 03:51:47 PM EST
      I think any honest appraisal of Scalia would be that he is less results oriented  and more ideologically consistent than the the large majority of justices in the post WWII era.

      There's plenty for many to critique with regard to his ideological beliefs but this criticism is not warranted in comparison to others of his  era across the spectrum.


    A big exception is his support of the (none / 0) (#23)
    by Joelarama on Thu Apr 09, 2009 at 03:57:35 PM EST
    Hans v. Louisiana line of cases that broadens the 11th Amendment grant of immunity to states in federal court far beyond its plain meaning.

    HIs reasoning is res judicata, the same argument in O'Conner's Casey plurality opinion that Scalia derided so shamelessly.


    Actually (2.00 / 1) (#26)
    by Big Tent Democrat on Thu Apr 09, 2009 at 04:01:11 PM EST
    there are a million exceptions. Scalia is consistently intellectually dishonest.

    In my mind the 11th Amendment is the (4.00 / 1) (#27)
    by Joelarama on Thu Apr 09, 2009 at 04:07:20 PM EST
    clearest and most important exception.  Another is the R.A.V. opinion, which is just crazy.

    well (none / 0) (#28)
    by Bemused on Thu Apr 09, 2009 at 04:08:10 PM EST
     I agree with the view that the court has broadened sovereign immunity pertaining to jurisdiction over claims against states in federal al courts in recent years with Scalia in the majority. obviously the text of the 11threads citizen of "another"  state.

      In Alden though the court held that the immunity against a suit in federal court by a citizen of the same state is drived not from the 11th amendment but from the limitations on Congress in Article I.


    Yes, invoking Article I at that point, (none / 0) (#29)
    by Joelarama on Thu Apr 09, 2009 at 04:12:21 PM EST
    after over 100 years since Hans, is convenient.  

    So convenient, in fact, that one (none / 0) (#31)
    by Joelarama on Thu Apr 09, 2009 at 04:18:20 PM EST
    wonders why the 11th Amendment is necessary.  Scalia and other conservative justices treat separation of powers and "our federalism" as magic hats out of which they can pull any doctrine that suits.

    Was it convenient (none / 0) (#32)
    by Bemused on Thu Apr 09, 2009 at 04:23:28 PM EST
      to find the Second Amendement cofers an individual right to bear arms for the first time in Heller? Was it conveneient to find that the 6th Amendnent right to confront is not necessarily satisfied by adherence to common law or codified hearsay rules?

      I don't see how announcing a new rule or new rationale is anything that subjects a justice to valid criticism for jurisprudential inconsistency. Opinions that are inconsistent with one's own prior opinions or even with the most plausible logical extension of prior reasoning would seem necessary for that criticism to be fair.



    It is inconsistent because Scalia himself claims (none / 0) (#37)
    by Joelarama on Thu Apr 09, 2009 at 05:03:55 PM EST
    to be an originalist and to strictly interpret the Constitution.

    His reading of the Eleventh Amendment is wholly at variance with that.


    would you not (none / 0) (#51)
    by Bemused on Fri Apr 10, 2009 at 06:04:33 AM EST
      accept that Scalia's fundamental principles flow from the conception  that the Constitution serves to limit federal power vis a vis the states and that the sovereignty of the states is extensive and requires express delegation of powers to Congress to abrogate. He has always been less willing to allow the commerce clause, general welfare clause or necessary and proper clause to be so broadly interpreted as have many others.

      A valid criticism of Scalia is that he tends to be true to what HE thinks the constitution means and is willing to depart from, or posit dubious grounds for distinguishing precedents, to uphold his conception, but I don't think it is fair or accurate to suggest he is an  inconsistent jurist. That's not to say he is 100% consistent, just that he is more consistent than most justices of ther modern era,

      In my opinion the best example of his voting in variance with that might be Bush v. Gore.


    I also think you are confusing (none / 0) (#33)
    by Bemused on Thu Apr 09, 2009 at 04:30:36 PM EST
      res judicata and stare decisis.

      Res judcata only applies to issues arising out of the same controversy between the same parties or parties with great identity of interest. it has no application just because issues are similar in different controversies.



    Excuse me, yes, stare decisis. (none / 0) (#35)
    by Joelarama on Thu Apr 09, 2009 at 05:01:55 PM EST
    That's the header O'Conner used.

    Though they're closely related.


    And how did Scalia come to his (none / 0) (#11)
    by Joelarama on Thu Apr 09, 2009 at 03:13:27 PM EST
    twisted reading of the 11th Amendment on sovereign immunity?  Because that's what he wanted.

    Thanks, this notice of (none / 0) (#15)
    by KeysDan on Thu Apr 09, 2009 at 03:20:20 PM EST
    Justice Scalia speaking at William Casey University in Hattiesburg, gave an opportunity to catch-up on the happenings of Charles W. Pickering, Sr., who introduced Scalia.  I remember well, the new-found courage of the Democrats who filibustered his nomination to the Court of Appeals, only to be given a recess appointment by George W. Bush--a recess appointment that went away along with Pickering.

    william carey university (none / 0) (#34)
    by english teacher on Thu Apr 09, 2009 at 04:32:08 PM EST
    used to be william carey college.  william casey is a big pol from pa.  

    Wrong Casey (none / 0) (#36)
    by Peter G on Thu Apr 09, 2009 at 05:03:48 PM EST
    William Casey is the former head of the CIA.  Robert Casey is the late former governor of PA, whose son, who prefers to go by "Bob" Casey, is now one of our U.S. Senators -- the one who isn't Arlen Specter.

    Regret any confusion that (none / 0) (#44)
    by KeysDan on Thu Apr 09, 2009 at 06:08:53 PM EST
    might have been caused. I meant to post "William Carey University" in Hattiesburg, Mississippi --I think 'Casey' was a typo, but the Scalia discussion may just have placed another right-wing Reagan appointee on my mind.