Scalia nailed this:
In a 35-minute speech Monday, Scalia said unelected judges have no place deciding issues such as abortion and the death penalty. The court’s 5-4 ruling March 1 to outlaw the juvenile death penalty based on “evolving notions of decency” was simply a mask for the personal policy preferences of the five-member majority, he said.
“If you think aficionados of a living Constitution want to bring you flexibility, think again,” Scalia told an audience at the Woodrow Wilson Center, a Washington think tank. “You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That’s flexibility.”
“Why in the world would you have it interpreted by nine lawyers?” he said.
Of course, some people will never understand this and will instead resort to cheap taunts and accusations of bigotry. And before you call me a bigot, Oliver- I am in favor of homosexual marriage.
Oliver
John, would you tell blacks protesting in the 60s to simply wait for the laws to catch up to common sense? I don’t think you would. Scalia is the last person in the world who should be lecturing people on right and wrong.
Fargus
In Scalia’s construct, why would we even have a Supreme Court at all? If the Constitution is so cut and dry, so clear, then why do we need 9 dried up old folks to tell us whether something’s constitutional or not?
The whole point of the thing is for checks and balances, no? A separate but equal branch of the government with powers all its own? Seems that Scalia’d inexplicably like to cripple that.
Defense Guy
I dont’ know about that Oliver, it seems to me the last person to be lecturing on right and wrong might be Byrd. One of yours (Dem) I believe.
Zen_less
Scalia has a lot of nerve – what was the decision in Bush vs Gore anything other than his personal preference? It had nothing to do with law or precedent, and even he claimed it should not be used as a precedent. What is was that Scalia wanted Bush as President, pure and simple. So much for the living Constitution
Oliver
Except, unlike Trent Lott, Robert Byrd has admitted his stupidity. But then again, Robert Byrd hasn’t said anything on this gay marriage ruling. How much red herring are you selling today?
Sandi
@ Oliver
“would you tell blacks protesting in the 60s to simply wait for the laws to catch up”
That is exaclty what happened. It was called the “Civil Rights Act of 1964,” and it was passed by the legislators, not 9 judges.
Mikey
Unfortunately, the civil rights movement has become a solution looking for a problem to fit it. It was the right answer in the 1950’s-1960’s. The political system wasn’t functioning, the rights were explicitly laid out in the US Constitution and were being just as explicitly ignored.
However, that is a rare occurrence in US politics, that political dynamite, in the form of the courts, has to be used in that fashion. Most other questions are open to debate and persuasion. It’s sort of like comparing every war to the template of World War II. Simply the wrong answer and the wrong approach.
The courts should be approached to handle these sort of issues after the political system has proven that it cannot. Certainly not before. To do otherwise is harmful to the nation. It is an admission that the people cannot rule themselves and cannot hold their representatives accountable, and that we must have the wise guidance of philosopher-kings. Not something I am overly comfortable with, nor should anyone else be.
Oliver
And before 1964, the blacks should have just been silent? Methinks not.
The political system wasn’t functioning, the rights were explicitly laid out in the US Constitution and were being just as explicitly ignored.
I would say the same now.
ProudLiberal
Is Scalia saying that the four dissenting justices were not voting their bias as well?
Including Scalia.
Mikey
Oliver, I think you’re being a little over-dramatic.
John Gillnitz
Yeah! Judges have no place in the justice system. We should just let Dubbya decide everything with a thumbs up or down.
Kimmitt
Isn’t this fundamentally an argument against Judicial Review?
I mean, I expect that sort of thing from a guy who thinks that the power of the State devolves from God rather than the people, but I’m surprised to see anyone endorsing Scalia’s implicit repudiation of Marbury v. Madison.
Oliver
Ok, if you think I’m being overdramatic, please explain to gay Americans why they aren’t real Americans. If you don’t like race analogies, then how about women? Should women simply have waited and bided their time to be counted? No.
Slartibartfast
Oliver, is it actually your contention that SCOTUS had anything at all to do with the introduction and ratification of the Thirteenth Amendment? If not, what exactly is your point?
Walter L. Maroney
Zen-less has it right: the Bush v. Gore decision falls precisely into the mode of judicial decision that Scalia claims to abhor. To paraphrase the Justice, “Would you want five Supreme Court Justices abrogating the constitutional election process to, in essence, dicate the outcome of a popular election? I think not!” And yet, that is precisely what happened in Bush v Gore. It doesn’t surprise me that Scalia wouldn’t want that case used as precedent. One wouldn’t want a successful coup to be so easily undone.
Slartibartfast
“precisely”. I do not think that word means what you think it means.
Kimmitt
You know, I’m not going to ask this as a question any more — this is an argument against judicial review. Scalia’s looking to roll back Marbury v. Madison (for decisions he doesn’t like).
Aaron
Maybe he’s just suggesting:
STOP TRYING TO PASS LAWS VIA THE COURTS AND GET CONGRESS TO DO IT.
Or should all questions go to the courts and never to Congress/States, etc.?
Of course, there is a balance here.
But again, I think he’s simply remininding some people that laws can be passed by persuading voters rather than judges.
Terry
I have no idea what in Hell Kimmitt is referring to when he suggests that Scalia wants to overturn Marbury vs. Madison. Actually, I suspect that Kimmitt has no idea whatsoever what either Justice Scalia really said OR what Marbury vs. Madison is about. This latter decision marked the first time the United States Supreme Court declared a federal law unconstitutional. Chief Justice John Marshall wrote the opinion for the court. He held that it was the duty of the judicial branch to determine what the law is. His opinion established the power of judicial review
Kimmitt
Scalia:
“Why in the world would you have it interpreted by nine lawyers?”
Nah, he’s pretty clear.
Geoff Matthews
Bush v Gore? You mean that part where the FLORIDA SUPREME COURT decided to override the laws of the state of Florida? Where they decided that election laws of Florida didn’t matter?
Methinks that Scalia acted AGAINST judicial activism in that very case. Given what followed, and as a 2000 Nader voter, I am greatful that SCOTUS put an end to that judicial activism.
Bob
This week’s Tom The Dancing Bug cartoon nails Scalia. The guy’s a hypocrite, and with all his intellect he still can’t see himself. Nothing worse than a fool with power.
By the way, the judge in San Francisco who ruled that California’s ban against gay marriage was unconstitutional is a Republican, a Roman Catholic, and was appointed by Pete Wilson, the Republican governor a few election cycles back.
An activist judge is someone who rules against what you want, apparently.
willyb
“By the way, the judge in San Francisco who ruled that California’s ban against gay marriage was unconstitutional is a Republican, a Roman Catholic, and was appointed by Pete Wilson, the Republican governor a few election cycles back.”
You may want to go read the article at the end of John
ape
Scalia nails it.. and I think he’s right about the fundamentals
(even though i dont believe, eg, that teen offenders should be executed (or in the death penalty at all, on balance, rather than on principle))
that holds until you look at precedent. What is clear is that there has always been the kind of (evolving) interpretation he lambasts. if you respect precedent, as he claims to, then you have to go with the reasoning that led to this.
that’s when the hypocrisy comes in: it seems he doesn’t complain about ‘interpretation’ that suits him.
historically, the freedoms and rights in the constitution were utterly unavailable to large swathes of people – eg, trade unionists/ contraception advocates simply did not have first amendment rights at all until approx. the last 50 years.
were the judges ‘activists’? was the ‘evolving interpretation’ of the supreme court subsequently wrong. well, obviously not if they took the ‘interpretation’ closer to the plain meaning (intent?) of the law. but it set a precedent of ‘evolving’ interpretation, and that is the law.
scalia appears right when he says, “it shouldn’t be like this”; but as his judgement showed, when he was trying different ways of counting states, he can’t say “it isn’t like this”.
Holy Crap! what made me think I knew enough about this to start typing? Apologies to anyone who has read this comment.
Mikey
I’m back.
Oliver, Gays and women have the same rights as every other American. The same civil rights laws apply to the them as apply to you or I.
Kimmit, judicial review is crucial to the system, but it should be used sparingly, when Congress or the states overreach. Most issues are best resolved within the political system. A consensus decision through a legislature is better than one from on high.
Bob
willyb:
Read the blog to its end. I’m waiting to see Cole at a demonstration for the rights of all adults to marry.
And see him out there fighting for the rights of thirteen-year-olds to drink and ten-year-olds to work in factories and eight-year-olds to drink. And toddlers having the right to vote. And high chairs in the electric chair. And what’s this wussy crap about kids being forced to fight in armies, and what’s wrong about Michael Jackson (allegedly) fiddling with a little boy? Hey, kids are just little people.
Once you cross the line and admit that there is an age of reason, then it’s just a question of where you put the bar. If there is no bar, then we have a society that does not protect children.
Bob
Scalia reminds me of those Christians who claim to strictly adhere to the Bible’s literal meaning, which considering the thousands of different translations and versions is pretty silly. Those who embrace the rules against homosexuality manage to overlook dietary rules, which occupy a lot more space, or what to do when you have mold growing on your tent, or who you can sell into slavery or how all debts are cancelled after seven years.
Leviticus even prohibits 50-50 polyester/cotton fabrics.
schroeder
> Bush v Gore? You mean that part where the FLORIDA SUPREME COURT decided to override the laws of the state of Florida?
Wrong, wrong, wrong!!! Florida law states that in the case of a close or contested election, the Florida SC can recommend any remedy it deems appropriate. If the FSC wants a recount, do a recount. If the FSC wants the candidates to arm wrestle, roll up your sleeves. It was SCOTUS whose decision flew in the face of law and every legal principle. The bedrock of American law is that a plaintiff must show harm. Bush could show no harm coming from a recount – if he legitimately won, a recount would confirm that, benefitting him. And if Gore had legitimately won, a recount can’t be construed as harming Bush, because he’d have no legal claim to the office. As it is, we’ll never know who legitimately won (unless you factor in widespread fraud preventing blacks from voting, in which case Gore indisputably won.) There’s nothing in the canon of American law to justify not fairly and accurately counting votes. Scalia knew it, and telegraphed as much by putting the “don’t use this as precedent” clause right into his decision. He should have been impeached on the spot.
John Cole
Kimmitt- What is at question is not whether juudicial review is permissible or not, but how judges are approaching judicial review. Claiming Scalia wants to overturn Marbury is anothing but a strawman.
What Scalia is claiming is that judicial review should be used to determine something is constitutional or not- not to legislate and set policy on whatever someone thinks is correct. That means instead of deciding whether a policy is right or wrong, you simply decide whether something is constitutional or not.
Currently, the liberal members of the SCOTUS are setting social policy based on the former, rather than the latter.
Although you may just want to ignore that and join Bob and the rest of the bully boys on the left and call everyone who disagrees with you a bigot.
CadillaqJaq
It’s obvious as hell from reading the previous posts which side of the political spectrum loves the judiciary (unless the magistrate happens to be conservative). Three equal divisions of government? My ass.
It should be interesting theater IF the Senate Republicans can exhibit cohones grande enough to pass the nuclear provision eliminating filabusters from prohibiting an up-down vote on judicial nominees. Oh the wailing and gnashing of teeth!
RW
Bob,
Do a google search on “Old Testament” and then “New Testament”. They really are two separate entities.
[groan]
wild bird
We have judges who should be removed they are truly abusing the power and have to be checked its time to put a end the judicial tyrany from this bunch of crooks
Slartibartfast
Cite, please? Actually, there is something in the 2000 statute that says something similar, but quite different in effect:
Nothing about SCOFL, and nothing about arm-wrestling. There are, though, detailed procedures to resolve recount requests, which is what applies here.
Al Maviva
Scalia eeeeee-villl bogey man blah blah blah still have slavery today if Scalia blah blah blah duck hunting blah blah blah meanspirited blah blah blah woman’s right to choose blah bla h blah blah blah.
Why even bother arguing.
Kimmitt
A consensus decision through a legislature is better than one from on high.
I guess my response to this comes down to, “Do you think that Brown v. the Board of Education was a good decision or not?”
Al Maviva
Good decision, shitty reasoning. Even the most liberal scholars now admit that the Court’s efforts at using social science (now discredited studies) in an attempt to buttress their opinion was silly. Scalia’s own take on it – I have heard him say this on a couple occasions – is that he couldn’t say what he’d think, not having been there, but based on the facts as he knows them, he would probably have ruled based on the face of the 14th Amendment, and the facts on the record – that equal means equal, and the facts on the record demonstrated that the treatment given under “separate but equal” was anything but equal, thus segregation would have to go – which is concordant with Justice Harlan’s dissent in Plessy v. Ferguson. Scalia appears happy to point out that he is no slave to past precedent if he feels it is wrongly decided, and he considers the segregation cases wrongly decided. I realize this probably bursts a lot of bubbles of people who have fond mental images of Justice Scalia ambling about the house on weekends in White sheets, I have no reason to believe he was lying…
Aaron
“If you think that it is meant to reflect, as some of the Supreme Court cases say, particularly those involving the Eighth Amendment, if you think it is simply meant to reflect the evolving standards of decency that mark the progress of a maturing society, if that is what you think it is, then why in the world would you have it interpreted by nine lawyers? What do I know about the evolving standards of decency of American society? I
Mikey
Kimmit: I’m not even going to respond to you. Just go back and carefully read what I wrote.
Carefully this time.
Kimmitt
And what I’m saying is that Brown v. the Board of Education was a really huge decision which was not a result of an immediate overreach. Sometimes, the court has to step in. That’s what “majority rules, minority rights” means.