Thursday, March 24, 2005

Scalia

The New Yorker has a really interesting article on Justice Scalia this week- here are some excerpts from an interview with the author-

AMY DAVIDSON: You write that, for a Supreme Court Justice, Antonin Scalia attracts an unusual number of people who despise him or idolize him. You compare his stature in certain circles to that of a rock star—but the kind who smashes his guitar onstage. Why is he such a polarizing figure?
MARGARET TALBOT: In part; he’s so polarizing because he is very clear and very adamant about the method of constitutional interpretation that he stands for—originalism—and he has a kind of polemical zeal about making the case for it. He’s really out there on the law-school speaking circuit, making his argument in a forceful way; I was impressed to see how willing he is to take hostile questions and engage with people. He’s also quite funny. The other Justices tend to give pretty anodyne speeches—talking about their upbringings, or telling inspirational or educational stories about the great justices and cases of the past. But Scalia is laying out his approach and telling you in no uncertain terms how dangerous it is for American democracy and the American Constitution if judges don’t follow it. Also, his dissents, which are frequent, are notoriously caustic. He’ll use words like “preposterous” and “irrational” to describe what he sees as the wrongheaded thinking of his colleagues.
Just how conservative is Scalia?
I think we can surmise that socially he’s pretty conservative—anti-abortion, pro-death penalty, anti-affirmative action, and so on. And that is how he votes on those issues on the Court. He would emphasize, though, that he does not reach these conclusions because they are the ones he’d prefer as a matter of policy—what he would prefer as a policy matter is, he would say, entirely irrelevant-but because, after reading the words of the Constitution or of a statute, that was the conclusion he had to reach. And it’s true that he sometimes comes to conclusions that don’t seem to comport with his own political or social beliefs. He likes to cite his vote in a flag-burning case, for instance, when he voted with liberals on the Court to protect flag desecration as symbolic political speech. “Scalia did not like to vote that way,” he said in a speech at the University of Michigan. “He does not like sandal-wearing, bearded weirdos who go around burning flags.”
You mentioned that Scalia is an “originalist” when it comes to interpreting the Constitution. What does that mean?
That means that he reads the plain text of the Constitution and sticks to what he believes its meaning to have been at the time it was written. He loathes the idea of the so-called “living Constitution,” the idea behind many of the Warren Court’s decisions, which essentially says that values evolve and change, and we have to interpret the great precepts of the Constitution in light of those changes. So, for example, the Court in recent years has interpreted the Eighth Amendment’s ban on “cruel and unusual” punishment to mean that the death penalty for juveniles or for the mentally retarded is unconstitutional, taking into account this phrase that Scalia just hates: “the evolving standards of decency that mark the progress of a maturing society.” But Scalia says, Look, or as he says, “Lookit”—that’s not what the Eighth Amendment says, and that’s all I care about. And, furthermore, the death penalty was allowed in the late eighteenth century—and it was allowed for juveniles and for mentally retarded people—so the framers couldn’t have had capital punishment in mind when they proscribed “cruel and unusual” punishment.

No comments:

On Francisco Franco

On Francisco Franco written by  Charles Few Americans know much about Francisco Franco, leader of the winning side in the Spanish C...