Scalia and Political Controversy

Justice Scalia has been very active lately on the public speaking circuit. In addition to his debate with Nadine Strossen, he also made an appearance, along with Justice Alito, at a conference sponsored by the National Italian American Foundation. The AP reported on that talk and something jumped out at me, because he made a very similar statement in his debate with Strossen and I find it odd. In talking about judicial independence, he said that the court puts its own independence at risk when it wades into controversial issues:

"The court could have said, 'No, thank you.' The court have said, you know, 'There is nothing in the Constitution on the abortion issue for either side,'" Scalia said. "It could have said the same thing about suicide, it could have said the same thing about ... you know, all the social issues the courts are now taking."

Scalia said courts didn't use to decide social issues like that.

"It is part of the new philosophy of the Constitution," he said. "And when you push the courts into that, and when they leap into it, they make themselves politically controversial. And that's what places their independence at risk."

Frankly, I think this is nonsense. The courts have always been involved in controversial political and social issues and always taken a great deal of flak for it; this is nothing new. When the Supreme Court issued the Dred Scot ruling, it was at the peak of political and social controversy over slavery, so much so that the civil war was on the verge of breaking out. Likewise with the various rulings striking down the Jim Crow laws in the South in the midst of the civil rights movement.

This was a time of maximum controversy on those issues, when political and social tension over them was at an all time high. Does Scalia really think that the courts should have just stayed out of those issues because they were controversial and let legislatures - the ones who created those discriminatory laws in the first place - do whatever they wanted? Would he say that the court risked its judicial independence by going against the will of so much of the south at the time?

I know I keep going back to this case, but I have yet to hear a coherent answer from a judicial conservative on it - Loving v Virginia was also a highly controversial issue at the time. And the Constitution says nothing about marriage at all, much less interracial marriage (just as it says nothing about gay marriage today). Indeed, the framers of the 14th amendment made clear that it was not intended to overturn such laws. Does Scalia think that the court should have refused to rule in the case, or upheld laws against interracial marriage? If he applies his arguments consistently, he must. I doubt, however, that he would. And the fact that one cannot apply one's arguments consistently clearly suggests flaws in those arguments.


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I'm trying to think of a case that makes it that far up the judiciary that isn't "controversial" or that doesn't bear on "social issues." If the case wasn't the former, it wouldn't have gotten that far in the first place. And even pecuniary issues can have dramatic social consequences. These are distinctions without differences.

Isn't the correct conservative response to issues like Loving v Virginia to say that government would have eventually done the right thing without the intervention of the courts? And they're probably right, but how many more decades, how many more ruined and shattered lives would it have taken? And therein lies the problem for conservatives. They can't say what they believe since it makes them sound callous and out of touch.

For me the beauty of the Constitution is that in its brevity it provides an overall, rational umbrella under which laws and practices can be examined for fairness, honesty and constitutionality. As many have pointed out, it makes no reference to abortion, marriage, the internet, the telephone, broadcasting, monopolies, airlines, railroads, pornography, segregation, god (except for the First Amendment), and so on. But because it omits references to such transient concerns it's a guiding document that can and will endure with enough meat to give it substance but not so much that it will ever become sclerotic. Scalia apparently doesn't understand that. And the nation is poorer for it.

I think there's another aspect, too: refusing to rule on a controversial issue does imply a political angenda, if only because a court that refuses to rule implicitly supports the status quo. Sometimes, of course, the court has legitimate reasons for not hearing a case, but to avoid something simply because it is "controversial" is merely to adopt a conservative position, in the classic sense of the term. So all Scalia is really arguing for is lack of change.

Maybe when Scalia says "new philosophy of the Constitution", he means "new, starting in 1803".

He's not just a Paleoconservative-- he's a Hadean Conservative!

Scalia would definitely argue the "Loving v. Virginia" ruling was flawed. There is no question he would make the case that the Supreme Court has no business getting involved in the regulation of marriage. However, I think Ed makes a good overall point, namely, the Court will always rule on "politically controversial" issues given that these are the issues being fought over by a plantiff that thinks the political process has failed.

It strikes me that Scalia's argument sounds similar to D'Souza's: Protect judicial independence by not exercising it in any way that would anger political forces who seek to undermine it / Protect personal liberty by not exercising in any way that would anger the terrorists who seek to undermine it.

When did the Right become a bunch of Quislings?