Playing the Indian Card

Tuesday, February 23, 2016

Antonin Scalia

At least two of my leftist friends have posted links to the following piece in the New Yorker on the death of Supreme Court Justice Antonin Scalia. It seems to represent the leftist take.


They make the automatic leftist assumption that it is not just legitimate, but the duty of a judge, to ignore the law and impose his own political opinions case by case. For they assume Scalia's reading of the constitution is only an expression of his own political views. His supposed “revulsion toward homosexuality,” for example. “[H]e and his allies succeeded in transforming American politics into a cash bazaar, with seats all but put up for bidding.” Not. To ignore the constitution and vote your personal wishes is simple corruption in a judge.

Next, they use the familiar but spurious Whig view of history argument, implied by their popular current self-description “progressive,” which implies that the course of history is predictable and the future belongs to them. In fact, the pages of history are littered with movements and ideas considered “progressive” or “futuristic” in their day which have since been abandoned: the Soviet Union, the Khmer Rouge, Fascism, eugenics, prohibition, Social Darwinism, Maoism, laws against women working outside the home, modest dress, and on and on. Only time will tell whether Scalia's view of the constitution, or Ruth Bader Ginsberg's, will prevail.

As for his insistence that the US Constitution did not protect homosexuality as an inalienable right, I am sorry, but to my mind he is obviously right. There is no question that the authors of the Constitution and those who ratified it had heard of homosexual sex; it is not, like video games, a new invention. You would think they'd mention it. And Scalia is simply stating fact when he says that moral approbation has traditionally been attached to homosexual acts. All major religions agree on this. Accordingly, setting up homosexual sex as a right, and further claiming that it is incumbent on individual citizens as well as the government to respect this right, creates a direct conflict between this new “right” and the longstanding right to freedom of religion and freedom of conscience. As we have seen since. I, and I suspect most Christians, if not most religious people, have no problem with homosexual sex and homosexual marriage being legal. But saying homosexual sex is a constitutional right is a big problem.

And surely Scalia is correct in holding that the constitution should, like any law, be read as it is written. There is no such thing as a “living, breathing” document. This is simply a lie. Documents do not breath. It is the judges who live and breath, and they are replacing the constitution with their own wishes. This is not what courts are for, and it amounts in practice to tyranny of society by an unelected cabal.

Toobin holds it against Scalia that Chief Justice Rehnquist rarely gave him the task of writing the majority opinion. This appears to be simply untrue. According to his Wikipedia entry, Chief Justice Rehnquist followed a strict rotation system—everyone took turns writing the majority opinions. If Scalia wrote relatively few, it was probably only because he was often in the minority.

Toobin says that John Paul Stevens demonstrated that Scalia was wrong in his interpretation of the constitution in Scalia's majority opinion on District of Columbia vs. Heller. There is an obvious problem with this claim. Scalia was writing the majority opinion. A majority of Supreme Court justices agreed with him, and thought Stevens was wrong. Toobin may disagree, as I often do, with the majority on the Supreme Court, but he has no business stating it as simple fact that they were wrong.

Similarly, Toobin pokes fun at Scalia's views on banning video games in Brown v. Entertainment Merchants' Association. You might think from what he says that Scalia opposed video games, because Madison had not heard of them, and that his colleagues, even the fellow originalist Alito, disagreed with him. Makes him sound appropriately like a reactionary, opposed to material progress. Just the reverse: Scalia held that video games were protected speech, and he wrote the majority opinion, to which his colleagues signed on 7-2.

“Scalia described himself as an advocate of judicial restraint, who believed that the courts should defer to the democratically elected branches of government. “ writes Toobin, This is a mischievous falsehood. Were it true, there would be no role for the Supreme Court at all. Scalia believed that the role of the court was to enforce the constitution if the legislative or executive branch exceeded its authority, while at holding the Supreme Court should not legislate. Its like saying that, if you believe you should not cook in the bathroom, it follows that you should not cook in the kitchen either. It does not.

Toobin also criticizes Scalia based on his reading preferences, specifically which newspapers he subscribed to. Toobin's  swipe at the Washington Times is pure ad hominem: it is held to be guilty of something because owned by Sun Myung Moon. But more broadly, it is rich to hear a leftist accusing a conservative of living in a “sealed bubble” in terms of the opinions they hear. Given the biases of the mainstream media, it is impossible for conservatives not to hear the “progressive”arguments. The opposite is far from true: many if not most “progressives”do not seem to ever hear the conservative positions except second-hand (and generally falsified).

“[T]he Justices rarely stray too far from public opinion. And, on the social issues where the Court has the final word, the real problem for Scalia’s heirs is that they are out of step with the rest of the nation. The public wants diversity, not intolerance; more marriages and fewer executions; less money in politics, not more. ” This too, is a corrupt view of the job of the court. It is the job of the legislature to express popular opinion. It is the job of the court to check public opinion when it violates human rights. As it did in Nazi Germany, as it did in the pre-civil rights South. In fact, contrary to Toobin's claims, the court disagrees with popular opinion on the very issues cited. Toobin says the death penalty is on the decline. In fact, polls show a large majority of Americans support it, 61 to 37 %. A majority of Americans oppose Obamacare. A plurality opposes affirmative action.

It is vanishingly hard to find a true statement in the entire piece.

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