Scalia Is Politicizing the Judiciary

Listening to NPR I just heard a clip from an interview with Justices Breyer, O'Connor, and Scalia yesterday at the National Archives. One of the things the Justices discussed was the way courts and judges have been criticized recently (especially from the political Right) and Breyer said, more or less: “It's always been this way. Judges make tough choices and some people are always going to be unhappy with those choices, but that's all fine so long as everyone follows the rule of law.” That's the standard answer.

However, Scalia couldn't pass up the opportunity to “play politics” (as Republicans are fond of saying) with the question. I haven't found the full text of what he said anywhere online, but in the clip NPR played Scalia said something like this: “If you take the position that the Constitution is a living document that the Court will interpret anew for each generation you make the Court a very political body and people will rise up against that.” (You've got to see his actual words; they're much better than that.)

Again I say: Whatever, Nino. Of course, he is clearly correct that people some people do not like the idea of, um, change. But it's disingenuous for Scalia to imply that his “originalist” perspective would generate less animosity toward the Court than would any other perspective. Originalist arguments about Constitutional interpretation are exactly that—arguments about how to interpret words that some white guys wrote a couple of centuries ago. Those words have no immanent meaning that we can “discover” through historical research or any other means (although, obviously, historical research contributes much to our understanding).

Originalists may like to argue otherwise, but again, originalism is just an argument, and therefore it's controversial, and therefore a Court run by originalists would generate just as much animosity as the current Court generates—possibly more. Scalia knows this, which is why it was a dishonest political ploy for him to imply that an originalist Court would resolve current debates about the judiciary. I give him props for being media-savvy enough to promote his agenda at an opportune moment, but it's ironic and a bit hypocritical for him to use a politically loaded claim to criticize the Court for being overly politicized.

Oh, and on the subject of our overly politicized courts, it seems some evangelical Christians want to remove funding from the courts to stop them from making decisions evangelicals don't like. Brilliant, don't you think?

Posted April 22, 2005 09:26 AM | law general