It’s a damn good thing that there aren’t five Scalias on the Supreme Court (there are 3.5 Scalia-equivalents: Scalia himself, Thomas, Roberts, and 0.5 Alito). Unlike Scalia, Thomas at least has the virtue of keeping his yap shut (his wife does the dirty work).
This month’s California Lawyer has an interview with Scalia that is surprising even by his stone-age standards. Remember that Scalia is an “originalist”, who believes that no rights inhere in Americans except those explicitly outlined in the Constitution or obviously intended by its authors. In the interview, The Great Originalist shows the audacity of a dope, asserting that the Constitution doesn’t protect women against gender discrimination. Here are a couple questions (in bold) posted to Scalia along with his answers (plain type).
In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?
Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.
And what if some states don’t pass laws allowing those rights? And what about gays? If the Framers thought anything about the Constitution and the Bill of Rights, it was that they were meant to guarantee certain rights that were universal and could not be touched by state law.
I guess Scalia took seriously the Declaration of Independence’s assertion that “all men are created equal.” It doesn’t say anything about women.
But it does to me. Here’s part of the Fourteenth Amendment:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
I’m no constitutional lawyer, but to me “equal protection of the laws” implies “no discrimination on the grounds of gender alone.” How can anybody deny that society and its moral standards moves on? That is the big problem with originalism. Originalism isn’t really a philosophy; it’s a philosophical ploy to infuse right-wing politics into law.
And this (my emphasis in his answer):
What do you do when the original meaning of a constitutional provision is either in doubt or is unknown?
I do not pretend that originalism is perfect. There are some questions you have no easy answer to, and you have to take your best shot. … We don’t have the answer to everything, but by God we have an answer to a lot of stuff … especially the most controversial: whether the death penalty is unconstitutional, whether there’s a constitutional right to abortion, to suicide, and I could go on. All the most controversial stuff. … I don’t even have to read the briefs, for Pete’s sake.
Now there’s a justice who considers all the arguments. What a fine scientist he would make!
On the less important topic of a certain comestible—one about which I have some knowledge—Scalia’s opinion sucks there, too.
You more or less grew up in New York. Being a child of Sicilian immigrants, how do you think New York City pizza rates?
I think it is infinitely better than Washington pizza, and infinitely better than Chicago pizza. You know these deep-dish pizzas—it’s not pizza. It’s very good, but … call it tomato pie or something. … I’m a traditionalist, what can I tell you?
Infinitely better than Chicago pizza? If you’re an originalist, any pizza concocted after the first Ur-pizza is simply not a valid pizza. To my mind, a Chicago deep-dish or stuffed pizza is hands-down better than a greasy triangle of the New York City stuff.
The most infuriating thing about Scalia, Thomas, Alito, and Roberts is that they’re all relatively young. They and their stinking legal opinions will be with us for decades.