Two borrow a quote from Justice Scalia, many judges come to the court as a wolf in sheep's clothing. Judge Scalia came to the court as a Wolf in Wolf's clothing.
Our main fault with Justice Scalia is his long held philosophy that he is (using his own description) a "weak originalist." In explaining this definition he gave himself, Scalia said he was an originalist in interpreting the Constitution right up to the point where following his philosophy would make him look "like a nut." As he then explained, "I am not a nut." One cannot have a philosophy only when it is convenient. It either works and its adherents are consistent, or it does not.
No he was not a nut. But more troubling, he was not intellectually consistent. Scalia championed the originalist philosophy of interpreting the constitution so that there would be an intellectual basis for decisions now, and decades from now. Scalia, properly so, didn't want the constitution interpreted by the current whims, morals, or values, of un-elected judges
And yet, when his originalist philosophy failed him- and it would time and time again- Scalia was, like all the judges he decried, nothing more than an un-elected moralist in a robe.
Scalia could hardly defend originalist interpretation when challenged with the Constitution's acceptance of slavery and the diminishment of black people as less than 100% human, entitled to none of the rights and privileges of their white counterparts. And accepting the philosophy of interpreting the Constitution by what the founders accepted means accepting slavery, hanging, whipping, keelhauling, segregation in general and segregated schools in particular, and locking people in stockades in public squares.
So much then, for originalism. Accepting originalism was merely choosing one moment in time as the bedrock for analyzing phrases in the Constitution. It didn't have to be at the moment of conception, it was just more convenient for Scalia to pick that moment. Any moment in which the mores of the country could be determined would suffice.
And originalism fell by the wayside when it came to politics (Bush v. Gore) and his Catholic faith, which ruled his judicial philosophy. Recall that when sodomy laws were struck down, he ominously (and correctly) predicted that the court would find the right for homosexuals to marry. Homosexuality in general, and homosexual marriage in particular, were an anathema to his strict Catholic faith. And far from being a friend to defendants, one can feel secure Justice Scalia would have lost no sleep in millions of Americans being locked behind bars for the crime of homosexuality. In an earlier time, Scalia would have defended anti-miscegenation laws which were successfully challenged before the court- as mixed race marriages were considered unlawful by the founders (which didn't stop some of them from having black mistresses).
To quote Marco Rubio, make no mistake that Justice Scalia didn't know what he was doing. He knew what he was doing. He was employing a narrow and flawed judicial philosophy where it suited him, and he abandoned in and became a robed and un-elected moralist when the result in a case suited him.
To the intellectual conservative moment who understands the crucial need for a consistent philosophy that works, Scalia stands as no hero. He merely was the same altruist, collectivist, statist, whose ox was less gored than most.
That Scalia is being mourned as a giant of judicial philosophy is just an indication of how far removed we are from having judges who understand the meaning of the term.
See you in court.
Coming Next: Why President Obama MUST nominate a judge to replace Scalia.
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