Thursday, December 23, 2004

Center for American Progress: Ten Things President Bush Doesn't Want You to Know About Scalia & Thomas"

Salon.com's War Room alerted this blogger to a list, "Ten Things President Bush Doesn't Want You to Know About Scalia & Thomas," posted on the website of liberal think-tank Center for American Progress. As you'd expect from most liberals (and some conservatives), Scalia's jurisprudence is completely mischaracterized. I doubt many of Nino's most ardent critics have ever read any of his opinions. That conclusion is bolstered by a 2003 Findlaw survey, discussed in the above-mentioned Salon.com War Room posting, that 65% of Americans can't recall the name of one Supreme Court Justice. Oh well, I guess many folks find the Court rather boring. Remember the two or three Supreme Court T.V. dramas ? The networks pulled the plug on all of them after just a few episodes. Only law geeks like me dig the Court. Still, don't knock Nino if you haven't read him.

Anyway, back to the Center for American Progess (CAP) "Ten Things" list. First, it makes the dubious assertion that Justice Scalia "supports sex discrimination." CAP bases that statement on Scalia's dissent in U.S. v. Virginia, 518 U.S. 515 (1996)(holding VMI's male-only admissions policy violates Equal Protection ). But Scalia never wrote that he supports sex discrimination in his dissent. Rather, he discusses the history and tradition of all-male military schools in the United States, based in large part by the fact that (until recently) only men fought in combat. He mentions that the four service academies began admitting women, " not by court decree, but because the people, through their elected representatives, decreed a change."(Citing Pub. L. 94-106, Section(s) 803(a), 89 Stat. 537-538 (1975)). Scalia continues that "[t]he people may decide to change the one tradition [fed.-funded single-sex military schools], like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics-smuggled-into-law." True to Justice Scalia's textualist/originalist philosophy, his U.S. v. Virginia, dissent is another argument that neither the text or intent of the Constitution supports "tak[ing] the power of changing rights away from the legislature and giv[ing] it to the courts." (See Scalia, A Matter of Interpretation, at 41.) CAP distorts Justice Scalia's jurisprudence by asserting that his U.S. v. Virginia dissent shows that Nino "supports sex discrimination."

CAP's list continues with the anti-Scalia hyperbole, stating that Scalia supports "criminalizing consensual sex." CAP cites to Scalia' dissent in Lawrence v. Texas, __ U.S. __ (2003)( holding that a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct violates Due Process) . Here's a passage from his Lawrence dissent that reflects Scalia's true belief on the matter:

"Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts--or, for that matter, display any moral disapprobation of them--than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change." (Emphasis added.)
This well-reasoned passage again shows that Scalia is consistent in his view that state legislation of certain (non-Constitutionally based rights) should not be undercut by federal judicial fiat. It does not support the summary conclusion that he supports the criminalization of consensual sexual acts.
The CAP list also distorts Scalia's opinions on the rights of the disabled. Citing Scalia's dissent in Tennessee v. Lane, __ U.S. __ (2004), the list states he would "allow states to discriminate against the disabled." If one reads that dissent closely, however, there is no support for that conclusion. Scalia cogently argues that the Court's majority gives an overly expansive reading of Section 5 of the 14th Amendment (Congress "shall have power to enforce, by appropriate legislation, the provisions" of that Amendment) by holding that the Americans with Disabilities Act (ADA) can be enforced by requiring states to provide court access to the physically disabled. Giving a textualist/orginalist reading to Section 5, Scalia writes:
"Requiring access for disabled persons to all public buildings cannot remotely be considered a means of 'enforcing' the Fourteenth Amendment. The considerations of long accepted practice and of policy that sanctioned such distortion of language where state racial discrimination is at issue do not apply in this field of social policy far removed from the principal object of the Civil War Amendments."
This blogger wants to chronicle all dialogue about Justice Scalia, both pro & con. But, it would be nice if commentators provided actual support for their conclusions on Nino's judicial record.

45 Comments:

Blogger c&d said...

I have read a good number of Scalia's opinions, and often find them lacking in intellectual honesty. He is sharply critical in dissent, but he often ignores inconvienient facts or counter-arguments.

"I doubt many of Nino's most ardent critics have ever read any of his opinions. That conclusion is bolstered by a 2003 Findlaw survey... that 65% of Americans can't recall the name of one Supreme Court Justice."
Do you really think your opinion is "bolstered" by the survey? By definition a critic of Scalia is a person who knows his name, and therefore it would not matter how large of a percentage of Americans are ignorant of who the justices are when evaluating critics. You have made a conjecture based upon your own biased opinions.

I think your problem with the "Ten Things" begins with the meaning of "support". CAP takes "support" to mean allowing a (government) action under the constitution, while you (reasonably) feel support means a desire for a particular (government) action.

Saying that Scalia "supports [the constitutionality of laws] 'criminalizing consensual sex.'" is not hyperbole. The CAP should put in a fuller explanation, but I think their goal is to get across the general philosophy of Scalia and Thomas, which includes letting government do things that many people believe are unconstitutional. Alternatively the extreme conservative wing of the Court has recently sought to limit the federal government's ability to protect citizens from violence, as seen in Morrisson, or let the government protect and assist disabled citizens, as in Lane.

The "new federalism" of the Court undercuts Scalia's passionate opinions supporting the democratic will of the people, as in Lawrence. Distinctions can be made, but I find the positions of conservatives on the Court are as determined by political beliefs as much as that of the "activist" Warren Court.

Ironically, the language you quote from Scalia's dissent in Lane implies a hostility of application of the Equal Protection Clause to women. Something people might consider to "support sex discrimination."

Scalia's Eleventh Amendment jurisprudence, supporting the flawed decision of Hans and its progeny, indicates he really does not support a historical or textual interpretation of the Consitution when it reaches a conclusion he does not like.

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