Justice Scalia participated in a televised debate with Nadine Strossen, President of the ACLU’s board of directors, last night. The AP has a report about it, and there’s one statement in it that caught my eye, and the eye of STACLU as well.
Arguing that liberal judges in the past improperly established new political rights such as abortion, Scalia warned, “Someday, you’re going to get a very conservative Supreme Court and regret that approach.”
Which prompted this response from Jay at STACLU:
Bingo! Scalia slams them here. To put things in context, he said this after speaking about what he called judicial aristocracy, and how one day the consequences of putting so much power in the hands of nine lawyers might come back to bite them.
But this statement is actually an admission of something very important, and neither Jay nor Justice Scalia seems to recognize it. It’s an admission that all the conservative talk of the importance of “non-activist” judging and “judicial restraint” is really, as I’ve maintained all along, just a cover for not liking the results. Look at the argument Jay is making, that liberals have somehow “put too much power” into the hands of the court and when conservatives take over the court, they can use that power in ways the liberals won’t like.
But of course, this is nonsense. The Court has precisely the same power it has had from the very beginning, the power to overturn legislative acts that it deems contrary to the Constitution. How and when they’ve exercised that power is an entirely different question, you see, and if conservatives actually believed that the Court had exercised its power unjustifiably, then all they would do when they’ve got control of the court is….stop using that power.
The only way that conservatives could use this alleged power liberals have given the court in ways that liberals would regret is if they plan to engage in retaliatory “activism”. The way this argument is phrased, as the regret coming because conservatives will use the power they claim is being used unjustly in an equally unjust manner against their political enemies. And if they do that, then it proves that all that talk about “judicial restraint” was nonsense from the start. It means that they don’t really oppose what they claim to believe is use of the court to achieve political goals; it means that they only oppose the use of the court to achieve political goals they disagree with, because in power they will do the same thing.
Of course, all of this was obvious long before now. Scalia is absolutely guilty of doing the very thing he accuses liberals of doing on the court, which is to create an inconsistent intepretive theory to ensure the result he favors. If he did not do that in both Raich and Gonzales v Oregon, where he completely jettisoned any pretense of originalist thinking to vastly broaden the scope of the interstate commerce clause in order to achieve the anti-drug result he wanted, then I’d like to hear a better explanation for it.
Justice Thomas rightly took Scalia to task for his inconsistency in Raich, as did many conservative legal scholars, including Stephen Bainbridge, who remarked, “There is much to be admired about Scalia. It no longer seems possible, however, to believe that he is developing a coherent conservative jurisprudence.” Thus, when Scalia says that you will regret expanding the court’s power when the conservatives take over, it can only mean that he intends to do then what he claims now is unjust. So now we have seen that he already engages in the very behavior he claims is unjust, and intends to do so even more in the future. So much for intellectual consistency.