Scalia Both an Originalist and an Original

BY PAUL SCHINDLER | “There He Goes Again,” is the title of a January 5 editorial in the New York Times, commenting on assertions Supreme Court Justice Antonin Scalia made this week about the inapplicability of the 14th Amendment to the rights of women and gay and lesbian Americans.

Drawing on the concept of originalism — a conservative legal doctrine that holds that constitutional meaning is locked in place at the time of enactment — Scalia told California Lawyer magazine that the 14th Amendment, adopted in the years immediately after the Civil War to extend federal recognition to the rights of African-Americans, cannot be applied to civil rights claims made by women, gays, and other groups in society who suffer discrimination.

In an eye-opening response to the magazine's question about the equal protection guarantees of the 14th Amendment, Scalia, the most stridently outspoken conservative on the high court, said, “You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that.

“If the current society wants to outlaw discrimination by sex, hey, we have things called legislatures, and they enact things called laws. You don't need a Constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.”

In its editorial, the Times noted that “a slew of [Supreme Court] rulings since 1971, often with conservative justices in the majority” took exception to Scalia's narrow view of the Constitution's equal protection guarantee.

The Washington Post noted that, in 1996, Scalia was the sole dissenter in a case that struck down state funding of all-male education at Virginia Military Institute. He wrote, “The people may decide to change the one tradition, 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.”

Last fall, US District Judge Vaughn Walker, in a ruling striking down California's Proposition 8, found that the voter amendment violated the 14th Amendment rights of gay and lesbian couples.

In the California Lawyer interview, Scalia betrayed not only a fidelity to rigid judicial originalism, but also a clear fear of what might ensue in its absence.

“If you give to those many provisions of the Constitution that are necessarily broad — such as due process of law, cruel and unusual punishments, equal protection of the laws — if you give them an evolving meaning so that they have whatever meaning the current society thinks they ought to have, they are no limitation on the current society at all,” he said.

The justice is clearly uncomfortable with the lack of constraints on society today.

“I occasionally watch movies or television shows in which the F-word is used constantly, not by the criminal class but by supposedly elegant, well-educated, well-to-do people,” he told the California Lawyer. “The society I move in doesn't behave that way. Who imagines this? Maybe here in California. I don't know, you guys really talk this way?”

Even before the controversy over his magazine interview has crested, Scalia has become enveloped in a second flap over his decision to speak before the Tea Party Caucus of the US House of Representatives on January 24. The Los Angeles Times is reporting that he has accepted an invitation from ultra-conservative Republican Representative Michele Bachman of Minnesota to appear.

Jonathan Turley, a law professor at George Washington University, told the LA Times that Scalia exercised “exceedingly poor judgment” in agreeing to a gathering that “suggests an alliance between the conservative members of the court and the conservative members of Congress.”

Even the chief ethics officer in former President George W. Bush's administration, University of Minnesota law professor Richard Painter, gave Scalia a thumbs-down on the Bachmann gathering.

“I don't think it is appropriate for justices to meet with members of Congress, particularly in this highly partisan environment,” he said. “Michele Bachmann wants the healthcare law to be struck down by the courts. This is not about a particular ethics rule, but rather about common sense. This creates the appearance of partiality and undermines the credibility of the court.”

Bachmann responded to the fuss by saying that both Democrats and Republicans were welcome at her Tea Party.