I don’t know how much you’ve read about yesterday’s hearing on the Prop. 8 gay rights case. I’m trying not to read much, because it just infuriates me. But with the little that I’ve read, one thing really stands out to me: Antonin Scalia’s very un-judicial temperament. Time and again, he seemed to be leading Charles Cooper, the lawyer defending Prop. 8, around by the nose. Here is a particularly telling moment:
Mr. Cooper, let me—let me give you one—one concrete thing. I don’t know why you don’t mention some concrete things. If you redefine marriage to include same-sex couples, you must—you must permit adoption by same-sex couples, and there’s—there’s considerable disagreement among—among sociologists as to what the consequences of raising a child in a—in a single-sex family, whether that is harmful to the child or not. Some States do not—do not permit adoption by same-sex couples for that reason… I don’t think we know the answer to that. Do you know the answer to that, whether it—whether it harms or helps the child?
Basically, Scalia is saying that the Prop. 8 proponents should be saying that same-sex marriage is really bad because we don’t know if same-sex couples adopting children is bad or not. First, of course, Scalia is wrong that there is disagreement among sociologists about this matter: same-sex couples are just as good as opposite-sex couples. But just as we saw in the Obamacare hearings, Scalia seems to get all of his information from listening to Rush Limbaugh on the radio.
Apart from this, I don’t see any other justices trying to lead the attorneys along, “I think you forgot to mention…” And this isn’t the only occurrence of this. At least two other times, Scalia attempted to bail out Cooper when he was crumbling under the questioning of another judge. It was very disturbing.
None of this comes as a surprise, of course. As I wrote yesterday, Scalia always manages to twist the law to go along with his own prejudices that ossified a few decades ago. This is in keeping with a short interview that Francis Wilkinson did with Yale Constitutional Law Professor Jack Balkin. He is an expert on “originalism,” the judicial philosophy that Scalia claims to follow that says that laws only mean what people thought they meant when they were enacted. Although Balkin goes out of his way (much too far, if you ask me) to be fair to all of the originalist thinkers, he is blunt in his appraisal of the Associate Justice:
In fact, he goes on to say that originalism doesn’t really constrain constitutional argument. This is, of course, what I’ve long thought: originalism is just a convenient way to justify the conservative outcomes that most of its proponents seek. But at least Thomas applies it with a bit of rigor. Scalia, like the conservative hack he is, abandons it when it interferes the least bit with what he wants to “prove.”
Antonin Scalia has gotten through most of his career with a combination of brilliance along with his reputation as a colorful character. I think this is coming to an end. His brilliance is somewhat faded and it is increasingly clear that it was never used for anything but partisan parlor tricks. Meanwhile, his “color” is more and more just the angry ravings of an old man the culture is leaving behind. Even in his own lifetime, I think he will likely see his reputation disintegrate.
After writing this article, I came upon the following clip from Politics Nation with Al Sharpton. At the 3:00 mark, Sharpton presents a number of clips that show that right wing talkers were saying exactly the same things that Scalia was saying on the bench. In each case, the Scalia statements were after they became right wing talking point. How is it that this guy is taken as anything other than a conservative hack?
 Originalism is primarily a conservative doctrine, but there is increasing liberal use of it. I gather that they think a little deeper about it. Balkin provides a contrast of sorts. He says, “A conservative like Scalia might argue that the Fifth Amendment and the 14th Amendment weren’t designed to say anything about marriage.” This is to say he’s talking about very concrete things: they weren’t thinking about marriage so they didn’t mean for the law to apply to same-sex marriage. But then he says, “A liberal originalist might argue that the purpose of the 14th Amendment was to guarantee equal basic rights.” In other words, the liberal would look at what the general purpose was.
I know I’m biased, but the conservative take on this is ridiculous. It reminds me of Monty Python’s The Life of Brian where the crowd gets in an argument about Jesus’ statement, “Blessed are the cheese makers.” If Congress made a law in the 18th century that gave worker rights to those in the farm and manufacturing industries, the conservative would claim the law does not apply to computer programmers because the writers didn’t know what computers were. But the liberal would note that farming and manufacturing were the only industries at that time and thus the law was meant to apply to all workers. The conservative reading of the law is either stupid or designed to limit individual rights as much as possible. Take you pick: it all means the same thing.