What is the deal with Justice Scalia?
Let’s compare two Antonin Scalias. We join the first, the 50-year-old Supreme Court nominee, during his easy-as-pie confirmation hearings back in 1986. At one point during the questioning, Sen. Strom Thurmond served up one of those annoying softball questions friendly senators always ask; this one was about, of all things, the meaning of Marbury v. Madison.
As anyone who’s ever taken a high school civics class (an increasingly small percentage of the population today, unfortunately) should know, Marbury is the famous 1803 decision in which the Supreme Court, to the considerable dismay of President Thomas Jefferson, first established the principle of judicial review.
Bottom line: Asking a potential Supreme Court justice what he thinks about Marbury v. Madison is approximately equivalent to asking a major league baseball manager how many strikes a batter gets before he strikes out. We ain’t talking rocket science here.
Still, Scalia demurred. “I do not think I should answer questions regarding any specific Supreme Court opinion, even one as fundamental as Marbury v. Madison,” he insisted. His public rationale for taking this position was, of course, the same one that most present day Supreme Court nominees hide behind during confirmation hearings — that it would be inappropriate to answer any question that might give even the appearance of prejudging a case that might later come before the Court.
Fast forward twenty years to the second Antonin Scalia, the increasingly grumpy 70-year-old version we have with us today. On March 8, 2006, just a few weeks before the Supreme Court was scheduled to take up arguments on the status of Guantánamo detainees, Scalia was speaking at the University of Freiburg in Switzerland. As described by Newsweek, which broke the story, Scalia spoke dismissively of the whole “idea that the detainees have rights under the U.S. Constitution or international conventions, adding he was ‘astounded’ at the ‘hypocritical’ reaction in Europe to Gitmo.” The Newsweek report continues:
“War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts,” he says on a tape of the talk reviewed by NEWSWEEK. “Give me a break.” Challenged by one audience member about whether the Gitmo detainees don’t have protections under the Geneva or human-rights conventions, Scalia shot back: “If he was captured by my army on a battlefield, that is where he belongs. I had a son on that battlefield and they were shooting at my son and I’m not about to give this man who was captured in a war a full jury trial. I mean it’s crazy.”
What a difference 20 years makes. In 1986, propriety prevented Scalia from even discussing a relatively ancient point of law, involving a now completely uncontroversial principle, from a case decided nearly 200 years earlier; but in 2006, he apparently sees no problem in publicly describing his viewpoint on an issue that’s just days away from coming before the Court.
What has changed? Well, obviously, a lot of things: In 1986, Scalia was an eager job applicant; today he’s an entrenched member of the most important court in the world, where, absent the extraordinarily unlikely remedy of impeachment, he will serve for life or until retirement, entirely at his own discretion. But there has to be more at play here than that. At the risk of sounding overly dramatic, what Scalia did in Switzerland was completely outside the pale; it was injudicious and probably unethical: What’s more, it was stupid and whatever one may think of Scalia’s career on the Court — and I for one don’t think much of it — there’s no question the man’s been brilliant.
And what’s particularly troubling about this incident, of course, is that it doesn’t stand alone. Reports of questionable conduct by Scalia just keep coming: Yesterday, it was his use of an offensive gesture, perhaps profane, although he denies this, but certainly insulting, in response to a reporter’s question.
Justices of the Supreme Court (as opposed to vice presidents) just don’t act that way in public. It would be like the Queen of England chewing with her mouth open at a state dinner; it just isn’t done.
But there’s more: Only about a month before that indiscretion, in a speech to the right wing legal group, The Federalist Society, Scalia declared that people who reject his so-called originalism approach to constitutional interpretation are “idiots.” Given that many of his colleagues on the Supreme Court quite properly reject originalism, this was again a remarkably tone-deaf thing to say.
And just a few months prior to that debacle, in a speech at an Orthodox synagogue, Scalia made the bizarre suggestion that the fact there was separation of church and state in prewar Germany helped to make the Holocaust possible.
Stephen Gillers, a legal-ethics expert, is quoted in the Newsweek article as saying, “As these things mount, a legitimate question could be asked about whether he is compromising the credibility of the court.”
That’s a polite way to put it. To be a bit more blunt, however, if this pattern continues, and it’s hard to believe it won’t, ultimately legitimate issues will need to be raised, both in public and within the Court itself, as to what exactly is going on with Justice Scalia to cause this epidemic of inappropriate commentary and other questionable conduct (e.g., the hunting trip with Cheney). And ultimately, his fellow justices will have to decide whether the time has come for them to use their influence, which is considerable under the unique sociology of the Court, to suggest that the time has come for him to retire.
For the record, I in no way wish Justice Scalia ill. In fact, like many other liberals, I’ve tossed my share of metaphorical coins into the wishing well pleading that there be no further Supreme Court vacancies, even among the conservative justices, until the end of George W. Bush’s term, when there’s at least some reason to hope that a Democrat will take office, and thus be the one to fill any vacancies.
But if things don’t change soon with Justice Scalia, we may not have that long to wait
March 28th, 2006 at 3:38 pm
Most people would probably be racking their brains trying to think of an NBA player named Madison and why his playing Stephon Marbury is such a big deal. Then again, a lot of people probably don’t know who Scalia is either.
Are SCOTUS Justices pretty much exempt from any kind of ethical/legal inquiries/reviews? Who judges the judges? If a Justice is batshit insane or senile or crooked, does the Senate have any oversight? I guess he could be impeached, yes? Has that ever happened before? Or would such a thing be considerd unpatriotic and as giving aid & comfort to the “enemy?”
March 28th, 2006 at 8:09 pm
[…] “War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts,” he says on a tape of the talk reviewed by NEWSWEEK. “Give me a break.” Challenged by one audience member about whether the Gitmo detainees don’t have protections under the Geneva or human-rights conventions, Scalia shot back: “If he was captured by my army on a battlefield, that is where he belongs. I had a son on that battlefield and they were shooting at my son and I’m not about to give this man who was captured in a war a full jury trial. I mean it’s crazy.”{Read} […]
March 28th, 2006 at 8:13 pm
Good essay! Somehow I had missed Scalia’s last comments. What was he thinking? You may think that, but why would you ever say it, in another country? Enjoy always! As I wrote on my Blog, in 2000 and especially in 2004 the Supreme Court was the most important issue before the American people. ABB was true. Under normal times, I would not want Kerry for President, but we do not live in normal times. I gave all the money that I could. I wrote letters. I talked to everyone. To get Mr. Kerry elected.
This is why it is the most important issue before us once again. We have seen what kind of man Mr. Bush installs. In the next three years, one or two of them will either die, retire or as you point out be removed because of being more crazy than he already is. We can not afford to have any more of their kind on this court!
Also, if Mr. Bush and his Cabal were to be impeached, you would not want a Republican as Speaker of the House. Ms. Pelosi would be a better person to hold the chair of the Presidency until 2009 than Mr. Hassert.
We must have such a lead in the polls, that even this group can not steal any state. Get out the vote, give money until it hurts to elect Congressmen and Senators who will do what needs to be done! Our country depends upon this.
Call the Republicans out for every lie they tell. Don’t beat around the bush (no pun intended), call it what it is: A LIE! After all, aren’t they the ones who tell us they believe in the Bible? A lie is a SIN!
It is about the Supreme Court!
March 28th, 2006 at 10:32 pm
If you want to understand Scalia, or the rest of the winger wackos in power, Read Shadia Drury’s “Leo Strauss and the American Right”. We are working from a paradiem of equals (at least in respect) as is cast in stone in the Founding Documents. These folks don’t, and are offended at the possibility.
Now that they have packed the court, and fixed the voting equipment, districts etc. so that Democrats cannot win elections, I think they are growing impatient with making nice, and even making any pretense of a free society. As they get worse I don’t know whether to be more afraid of most people waking up or staying asleep.
March 29th, 2006 at 5:05 am
that battlefield - Iraq? That battlefield - self-made? Did Scalia ever think about the german mothers and fathers who had lost their sons in the Great Wars - and what HE says about “that battlefields” and “that sons” and the rights of “that people” to talk about justice?
first you sell justice, then you sell democracy, then you sell peace - then you sell yourself
or is it: first you lose peace and then you lose the ones you love…?
We continued to watch the various scenes of grief, anger, frustration and every once in a while, an almost tangible relief as someone left the morgue having not found what they dreaded most to find- eyes watery from the smell, the step slightly lighter than when they went in, having been given a temporary reprieve from the worry of claiming a loved one from the morgue…
Riverbend
Uncertainty…
وزارة الدفاع تدعو المواطنين الى عدم الانصياع لاوامر دوريات الجيش والشرطة الليلية اذا لم تكن برفقة قو التحالف العاملة في تلك المنطقة
“The Ministry of Defense requests that civilians do not comply with the orders of the army or police on nightly patrols unless they are accompanied by coalition forces working in that area.”
…
But it also brings to light other worrisome issues. The situation is so bad on the security front that the top two ministries in charge of protecting Iraqi civilians cannot trust each other.
March 29th, 2006 at 7:34 am
FreeDem is right about the Drury book (Leo Strauss and the American Right). Before reading it (thanks to Buzzflash for getting it on my radar screen) I thought Bush & Co. were just a bunch of greedy opportunists. But no–they actually have a philosophical underpinning to “justify” their actions, to wit: the average citizenry is composed of morons who need an intellectual elite to provide them with national “myths” that provide social cohesion and unquestioning loyalty to country; meanwhile, the “elite” exercise complete control. We’re not talking democracy here, and there is nothing benevolent about their intentions.
Analysis of this situation doesn’t easily lend itself to soundbites (the Drury book is a difficult read), but if a way could be found to make this information accessible to the general electorate, I believe there would be such a level of outrage at the breathtaking arrogance and entitlement displayed by Bush and the Neocon crowd that we would see people taking to the streets in droves (or at least taking action to clean up the election process).
March 29th, 2006 at 11:19 am
Enjoyed your list of bizarre Scalia statements. Another is in his dissent in Lawrence v Texas. He was worried about legalizing gay sex. Among other things he thought it would lead to the legalization of masturbation. Apparently since his church thinks it is a sin, he assumes it is (and should be) illegal as well.
He obviously needs to recuse himself in cases where he can’t separate his religion from his duty to be an impartial judge.
The April/May issue of Free Inquiry magazine has an article by Paul Kurtz which points out that “There is a statute of long standing that governs these cases: 28 USC 455(a) states that, ‘Any justice, judge, or magistrate in the United States shall disqualify himself in any proceedings in which his impartiality might reasonably be questioned.’”
The article goes on to tell how Scalia was questioned about his pro death penalty stand at a panel discussion. “Asked why he favored capital punishment when the Catholic Church opposes it, Scalia replied, ‘This doctrine is not one that the Christian church has consistently maintained.’ Since the Pope’s teaching against capital punishment in Evangelium Vitae was not given ex cathedra, Scalia said, he is not obligated as a Catholic to accept it but only to give it serious consideration. ‘I have given it careful and thoughtful consideration and rejected it,’ Scalia said. ‘I do not find the death penalty immoral. I am happy to reach that conclusion because I like my job and I’d rather not resign.’”
When the next contraception, stem cell research or abortion case comes before the Supreme Court, there should be a huge push to get him to recuse himself (or as he himself suggested, resign) because the idea that a fertilized egg should be considred equivalent to a born human being IS an ex cathedra teaching of the Catholic church.
The Catholic Church has ex cathedra rulings on the right to die which Scalia should be binding on Scalia. So he should also recuse himself on issues dealing with livings wills and euthanasia.
March 30th, 2006 at 1:38 am
Renard
that is how aristocrats see it - everywhere and everytime: the elite is the great mastermind, benignly leading the brainless underlings
bodo
+
interesting kind of faith - you can always choose your “sins” and “teachings” like meals in a restaurant…
very useful - i guess, that’s the reason why so many powerful people love religion: there is always an argument for or against everything - combine that with Renards post, and you see, why the “elite” dares to offend our intelligence