A Response to Scalia Bashing

 Oliver J. Richards*

In law school, bashing Justice Scalia seems to be a favorite sport amongst my fellow students and even some of my professors.  I am going to generally make this blog about ideas and not people, but I recently read a post on MotherJones that I feel I have to respond to.  My larger point today is about the danger of taking academic arguments out of context.  Even some of my favorite political commentators who should know better engage in this sport just to make a political point (Cenk Uygar recently did a segment on the Young Turks based on this Mother Jones article).

I want to be sure to point out that I certainly disagree with Scalia on some of his political ideas, and certainly disagree with how he came out on some particular cases, but I have to believe (and perhaps I am being naive) that Justice Scalia is capable of separating any personal moral views he may or may not have have from the Court and isn’t just saying “I hate gay people, so I am going to rule a particular way.”  Sure, you can disagree with his method of interpreting statutes or the Constitution (texualism/originalism), but if you disagree, you have to admit that his approach certainly does have merits and be able to acknowledge those merits—otherwise who really is the zealot here?

I haven’t made my mind up on the living Constitution / originalist approach—I see the merits of both approaches.  On the one hand, I see the danger in allowing unelected judges to interpret the Constitution according to modern community values, which often inevitably infuses their own beliefs into the decisions (which is ironically what those espousing this approach accuse Scalia of doing).  We are after all a country of laws, not men.  This approach potentially can infuse the courts with unnecessary politicization in that the Court essentially becomes another law making body by changing the meaning of the words from when they were originally passed.

However, part of me believes in judge made law, particularly when you look at the ridiculous results that occur from applying an originalist stance (though you could certainly make the argument that the ridiculous results are not a result of the judge—but of the legislature that either failed to pass something correctly or failed to update a statute for modern times).  The originalist argues that, hey, if you want something changed, change it yourselves through your elected representatives.  Certainly when you apply an originalist stance, things fall through the cracks because not everything can be codified.

It is important to note that because the originalist/texualist believes that they are only applying the law as written, interpreted by the what the law meant at the time it was written, the originalist will often politically disagree with the result that they come to.  It is important to realize that when an originalist says that something is “legal” or “constitutional,” that judgment does not reflect on their own personal beliefs (although inherently because of the nature of being human, this is perhaps reflected in how they read the history at times).

Regardless of where you come out on this spectrum (and I do think it’s more of a spectrum than a black and white issue —more like 50 shades of … wait I can’t go there, sorry.)  Anyway, no matter where on this spectrum you fall, any serious person must acknowledge that both approaches have their advantages and disadvantages.

The originalist / living Constitution debate is essential to understanding the context of the legal discussions from which MotherJones cherry-picked their quotes.

Lawrence v. Texas / flagpole sitting

It is important to know how the law works before we discuss this (and I’m sorry for the people who know this—but for the benefit of those that don’t). The development of the law works by analogy—this is similar to that, etc., etc.—and often times lawyers and judges apply the reasoning being used for a particular scenario to a ridiculous scenario to illustrate a flaw in the underlying logic.

The Mother Jones article points to comments made during oral argument as evidence that Scalia is homophobic: (from the article) “Scalia came up with a tasteless analogy to illustrate the issue. '[S]uppose all the States had laws against flagpole sitting at one time, you know, there was a time when it was a popular thing and probably annoyed a lot of communities, and then almost all of them repealed those laws,' Scalia asked the attorney fighting the Texas law. 'Does that make flagpole sitting a fundamental right?'"

In this instance (and I have listened to the oral argument on this case), the lawyer was arguing that a law making sodomy was unconstitutional.  Regardless of how you feel about that particular law (and I think pretty much everyone reading this law can agree that it is a stupid law), the Court was asked whether the Constitution prohibited that particular law—and remember to the originalist, the Constitution only prohibits those things which at the time of its writing it would have prohibited.

The lawyer in the case was responding to a question similar to Scalia’s question during Prop 8 — when did laws against sodomy become unconstitutional (in other words—could he point to a specific change in the Constitution that prohibited laws against sodomy).  The lawyer tried to argue that though the law had been on the books forever, the fact that the law hadn’t been enforced meant that it had been unconstitutional. Scalia used the flagpole-sitting analogy to illustrate the ridiculousness of that argument—just because you repeal or don’t enforce a law against something doesn’t mean that that something becomes a fundamental right.

Moral objections as justification for a law

The Mother Jones article says, “In his dissent in Lawrence, Scalia argued that moral objections to homosexuality were sufficient justification for criminalizing gay sex.”  Mother Jones also later quotes Scalia from one of his other dissents:
“But I had thought that one could consider certain conduct reprehensible—murder, for example, or polygamy, or cruelty to animals—and could exhibit even ‘animus’ toward such conduct. Surely that is the only sort of ‘animus’ at issue here: moral disapproval of homosexual conduct[.]” 
Scalia’s basic point is that we have all kinds of laws based on really nothing more than morality—and have had them for years.  I doubt that any serious consideration to weighing competing interests goes on in a state legislature when they decide to make murder illegal—no they say “Murder is morally wrong, thus it should be illegal.”  Granted there are societal interests besides just the morality that go into making murder wrong, but that isn’t the primary interest in making murder illegal.  Similarly, what possible societal justification could you have for making polygamy illegal other than moral disapproval.  Just because a law is based on someone’s sense of morality doesn’t make it unconstitutional.

Scalia wasn’t comparing homosexuality to murder as some liberals like to shout about—he was comparing laws against murder and polygamy to laws against sodomy.  Both sets of laws are based on the community’s sense of morality.  The statement is undeniably true—and the problem that you and I have with a law against sodomy is with the morality underlying the law rather than the law being based on morality.  In the originalist view, it is not for the court to make judgments of morality—that is a decision best left to the legislature. Scalia wasn’t advocating that their be a law against sodomy, but was arguing that the legislature was the appropriate place for that determination, which even if you don’t like the result he would arrive at in this case, you have to admit is an argument that has merit.

Of couse, this is an example of where an originalist approach produces a result that we don’t like.  But to turn around and blame the judge for applying the law as it is written simply isn’t fair.  If you don’t like the law change it.  If you think the Constitution ought to cover privacy or sexual freedom (as I do) change it.  The originalist truly believes in Democracy because they believe that the people and their representatives are much more suited to make decisions about morality, what should be legal etc., than a court of unelected judges.  [Note, I acknowledge the living constitutionalist’s argument that the Constitution is difficult to change—that is a particularly good argument against the originalist approach.]

I am not necessarily endorsing this particular method of interpretation—but just pointing out that taking these comments out of the appropriate context of what was going on during the argument and the larger context about how to interpret the Constitution is unfair and amounts to nothing more than a smear campaign. Suggesting that because Scalia doesn’t think a law is unconstitutional implicitly means that he approves of the law is either a failure to understand the distinction or just ignoring it for the furtherance of a political goal.

Look, I can do it too:

“Justice Sonia Sotomayor: —Mr. Olson, the bottom line that you’re being asked — and — and it is one that I’m interested in the answer: If you say that marriage is a fundamental right, what State restrictions could ever exist? Meaning, what State restrictions with respect to the number of people, with respect to — that could get married — the incest laws, the mother and child, assuming that they are the age — I can — I can accept that the State has probably an overbearing interest on — on protecting a child until they’re of age to marry, but what’s left?”

OMG, Sotomayor is comparing homosexuality to polygamy and incest!  OMG!!!!!!  (obviously I’m being facetious with this comment—only to prove how ridiculous this practice is).

I don’t have time to research each of the points on the MotherJones page, but the ones I have taken time to explain here hopefully explain the inherent ridiculousness of calling someone a name because they believe that the Constitution doesn’t prohibit something and the utter dishonesty of taking academic legal arguments out of the correct context.  What I am saying is —look, agree, disagree, whatever.  That’s fine.  But let’s have a little respect for the Court—each of the members, yes both Breyer and Scalia as on opposite sides of the spectrum as they can get—each of them is honestly trying to discharge their duty to the country as they see it and to be sure, and all of them, no doubt, take that duty very, very seriously.

*Oliver J. Richards is a J.D. Candidate at Boston College Law School, Class of 2015.