ACLU v. Scalia
There's no court case by that name, but I'm referring to the
debate
on Sunday between
ACLU
president Nadine Strossen and Supreme Court (In)Justice Antonin Scalia. I did not see the debate.
Indeed, last weekend, I saw only the inside of my apartment, the inside of Stella's apartment,
and the short walkway between the two. Work is the curse of the blogging classes... until they need
to "put food on [their] family."
But I can tell you one thing about the debate: Strossen won. Did she win on content? did she speak
better? reason better? take my position more often? Possibly all of those; I didn't see... but she won
hands down just by being there. That Scalia feels compelled to defend his judicial philosophy in
public, against the head of the ACLU no less, is a sign that people are finally coming to realize what
an extremist the Gesturing Justice is.
A couple of choice passages from the AP article:
Scalia, a leading conservative voice on the high court, sparred in a one-hour televised debate with
American Civil Liberties Union president Nadine Strossen. He said unelected judges have no place
deciding politically charged questions when the Constitution is silent on those issues.
Hmm. Questions such as Bush v. Gore, a case wrested forcibly from the hands of a state court?
Or was that, in Scalia's view, nonpolitical?
Arguing that liberal judges in the past improperly established new political rights such as abortion,
Scalia warned, "Someday, you're going to get a very conservative Supreme Court and regret that
approach."
"Someday"? This Court is not "conservative" enough already? What Justice Scalia fantasizes is not a
conservative Court, but rather a Court whose decisions are tailor-made to a President's order. There
certainly have been courts like that in history... just not in America. Every Supreme Court since day
one of the republic has been conservative by any reasonable definition of the term, but self-
proclaimed "conservatives" have eviscerated the terms "conservative" and "liberal" beyond all reason.
Remember the days when the two terms described the gamut of political thought, rather than being used
to mean "virtuous" and "treasonous"? But I digress...
"On controversial issues on stuff like homosexual rights, abortion, we debate with each other and
persuade each other and vote on it either through representatives or a constitutional amendment," the
Reagan appointee said.
"Whether it's good or bad is not my job. My job is simply to say if those things you find desirable
are contained in the Constitution," he said.
No. Rights are exactly that. Rights are beyond popular debate, beyond majority rule. The notion that
anyone's rights are subject to the will of the majority is one of the most egregiously flawed concepts
advanced by Scalia and his ilk. And if the role of the Supreme Court were as mechanical as Scalia
says it is, we wouldn't need a Supreme Court: a text file containing the Constitution and a simple
search in, say, Windows Notepad would suffice to resolve all questions. (Come to think of it, compared
to many of Scalia's opinions, that might be preferable. These days, the law is tortured as surely as
individuals are tortured.)
Our nation's founders provided a rather more flexible approach than that... a more human approach.
This is not about "original intent": original intent was clearly aimed at producing a living document
interpreted in the context of the times, even as times changed. Scalia and his political cohort are
determined to subvert that flexibility in favor of a willfully restrictive interpretation that the
founders would surely find unfamiliar if not offensive.
I couldn't do better in conclusion than to quote Nadine Strossen (something the AP chose to do very
little):
"There are some rights that are so fundamental that no majority can take them away from any minority,
no matter how small or unpopular that minority might be," she said. "And who is better positioned to
represent and defend and be the ultimate backstop for rights of individuals and minorities than those
who are not directly accountable in the electoral process — namely federal judges?"
Popular views, popular actions and popular people seldom need defending. Questions of rights and
liberties always hinge on the unpopular exception. Courts are instituted in part to protect the
unpopular from the tyranny of the majority. What say you, Mr. Justice Scalia? That is your job:
will you do your job?
Steve
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