Scalia On 60 Minutes
"At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account." –Thomas Jefferson, letter to Monsieur A. Coray, Oct 31, 1823
It sounds like Thomas Jefferson was against activist judges in 1823. So is Supreme Court Justice Antonin Scalia, who was interviewed by Lesley Stahl of CBS on 60 Minutes. Scalia also doesn't care for the phrase "living Constitution," preferring instead the concept of "originalism", which is the interpretation of the Constitution as written and intended by those who wrote it.
Scalia supplies the reasoning:
"It is an enduring Constitution that I want to defend," [Scalia] says.
"But what you're saying is, let's try to figure out the mindset of people back 200 years ago? Right?" Stahl asks.
"Well, it isn't the mindset. It's what did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution," Scalia says.
"As opposed to what people today think it means," Stahl asks.
"As opposed to what people today would like," Scalia says.
"But you do admit that values change? We do adapt. We move," Stahl asks.
"That's fine. And so do laws change. Because values change, legislatures abolish the death penalty, permit same-sex marriage if they want, abolish laws against homosexual conduct. That's how the change in a society occurs. Society doesn't change through a Constitution," Scalia argues.
He's on a mission as an evangelist for originalism, at home and around the world.
For example, he visited the Oxford Union in England.
"Sometimes people come up to me and inquire, 'Justice Scalia, when did you first become an originalist?' As though it's some weird affliction, you know, 'When did you start eating human flesh?'" Scalia told students, who replied with laughter.
They may be laughing, but in the U.S. Scalia is a polarizing figure who invites protestors and picketers. There haven't been many Supreme Court justices who become this much of a lightening rod.
"I’m surprised at how many people really, really hate you. These are some things we've been told: 'He’s evil.' 'He's a Neanderthal.' 'He’s going to drag us back to 1789.' They're threatened by what you represent and what you believe in," Stahl remarks.
"These are people that don't understand what my interpretive philosophy is. I'm not saying no progress. I'm saying we should progress democratically," Scalia says.
Back at the Oxford Union, Scalia told the students, "You think there ought to be a right to abortion? No problem. The Constitution says nothing about it. Create it the way most rights are created in a democratic society. Pass a law. And that law, unlike a Constitutional right to abortion created by a court can compromise. It can…I was going to say it can split the baby! I should not use… A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change."
The most important words in the above exchange were Scalia saying, "I'm saying we should progress democratically." The Supreme Court is not the lawmaking branch of government (or at least it shouldn't be). Laws regarding abortion and gay marriage should be decided by the people, not by 9 black robes. If the people want to amend the Constitution to reflect changing values, then they can amend it (with great care), but don't use the Supreme Court as an end run around the legislative process.
This should not be a conservative vs. liberal matter (even though it seems to be). This should be a matter of understanding the role of the Court and understanding what it's limitations are supposed to be.
Naturally, during the Scalia interview, the topic of the 2000 Bush v. Gore Supreme Court ruling came up.
"You wanna talk about Bush versus Gore. I perceive that," [Scalia] replied. "I and my court owe no apology whatever for Bush versus Gore. We did the right thing. So there!"
"People say that that decision was not based on judicial philosophy but on politics," Stahl asks.
"I say nonsense," Scalia says.
Was it political?
"Gee, I really don’t wanna get into - I mean this is - get over it. It's so old by now. The principal issue in the case, whether the scheme that the Florida Supreme Court had put together violated the federal Constitution, that wasn't even close. The vote was seven to two," Scalia says.
(CBS) Moreover, he says it was not the court that made this a judicial question.
"It was Al Gore who made it a judicial question. It was he who brought it into the Florida courts. We didn't go looking for trouble. It was he who said, 'I want this to be decided by the courts.' What are we supposed to say? 'Oh, not important enough,'" Scalia jokes.
"It ended up being a political decision" Stahl points out.
"Well you say that. I don't say that," Scalia replies.
"You don’t think it handed the election to George Bush?" Stahl asks.
"Well how does that make it a political decision?" Scalia asks.
"It decided the election," Stahl says.
"If that’s all you mean by it, yes," Scalia says.
"That’s all I mean by it," Stahl says.
"Oh, ok. I suppose it did. Although you should add to that that it would have come out the same way, no matter what," Scalia says.
Somehow, I don't think Democrats have gotten over it, but Scalia is correct, they should. There was only one decision to make, and the Court made the right one.
I don't always agree with Scalia. I think his logic on cruel and unusual punishment as pertaining to torture is, well, tortured. But I agree with Scalia more often than I do most of the other Supremes. Anyway, read the interview. At the very least you should find it interesting.
April 28th, 2008 at 11:21 am
First: Scalia is a total embarassment to America.
Second: You show me where Florida or the Florida Supreme Court asked for the Supremes to interfere in 2000.
The very fact that Florida, as do most states, have a VARIETY of voting methods county by county renders Scalia's stupidity to the trash heap where it belongs.
Was it unConstitutional to discriminate against Florida voters by having DIFFERENT methods for voting in it's state?
Or have you simply bought the one-sided argument that it's only unConstituional when votes are RECOUNTED DIFFERENTLY?
The Supremes interfered in a right that belongs to the states alone. Of course the only reason the Rehnquist Court interfered was to insure the presidency of George, The Younger.
It seems odd how this rogue court rushes into voting situations, like voter ID and the selection of Codpiece….but only if they can help the Republican Party.
Scalia disagrees that his decision was "political", but then that's exactly what any Republican would say.
He's a total embarassment.
April 28th, 2008 at 1:05 pm
I think it is nice that Ruth Bader-Ginsburg and Nino Scalia are great chums, although they disagree, but respect one another–Ruth Bader is "challenged" by the contests.
He is an "originalist" and interprets the Constitution..awe, forget it…watch it for yourselves, or look it up.
His decision concerning the Gore loss was a bit pitiful to me.
Still don't like that decision, never will.
April 28th, 2008 at 1:06 pm
link: I like
http://www.nytimes.com/2008/04/28/opinion/28kristol.html?em&ex=1209528000&en=f
April 28th, 2008 at 1:45 pm
Kristol's article can be attributed to the fact that he knows the only way the GOP can steal another election is if Hillary is the Democratic candidate.
April 28th, 2008 at 4:22 pm
No, Rev. The whole world is watching.
April 28th, 2008 at 4:31 pm
Activist judges are lawless judges. They are undemocratic and undermine the real 'rule of law.'
Those 'progressives' who have been praising activist judges for over a generation now do so ONLY because these judicial outlaws push a political & cultural agenda that the Left like.
However, if & when we get an actvist court which is 180-degrees opposed to the liberal, leftwing project in their actvism, then these very Dims & libs who now advocate judical activism will be squealing like stuck pigs. Fact.
Among other things, this shows what hypocrite the Left inherently is.
Anthony Scalia is fair-and-balanced. He inturperts the U.S. Constitution as it should be — by what's written and not by his own personal agenda.
The day may come when the lefties and Dims pray for honorable men like Scalia on the bench.
April 29th, 2008 at 5:03 am
60 Minutes is still on the air?
April 29th, 2008 at 8:45 am
When I read the questions and comments by Stahl it becomes so obvious that she leans pretty far left. She tried to put Scalia in a bad light at every chance and when I think about her manner of interviewing it is very easy to hear her talk without having seen the show.
Rev Red says that Scalia is an embarassment but I wonder who would see that other than one of the original ABBs who sprouted up all over the country after the Court decided that the Florida Supreme Court couldn't change the rules in the middle of the, to me, incessant counting of ballots to "make" the final count come out a certain way. I am sure that Red failed to see that a number of newspapers, one being the left leaning al Times of New York, counted and counted and always came out with the same decisiion, that Bush had in fact won that election.
Red you are an embarassment to the Beacon, I think.
April 29th, 2008 at 9:41 am
They're still crying about the 2000 election? Weren't 3 recounts enough to validate reality?
For a group that has the federal courts stacked highly in their favor, it's pretty ironic when liberals cry about "biased" decisions being handed down from the supreme court. It'll be a glorious day when Stevens, Breyers, and Ginsburg finally step down. To credit Stevens, he at least sided with the majority in yesterdays upholding of the voter ID laws. We'll now have the libs cackling about disenfranchising voters, but the real agenda remains apparent: allow the voices of dead people and illegal immigrants to be heard because this allows their party to prosper. Talk about bias!
If the constitution were intended to evolve with society, what would be it's significance? By now it would have been rendered worthless, as a result of a sickening society. This same type of arguement was approached during the selection process of the last pope. The progressives wanted someone more in touch with modern day and in with the times, as opposed to someone who preserves the true meaning. When it comes to religion, many seem to prefer bending the rules rather than making the sacrifices and living a structure life. What many seem to forget is……………..the sacrifice should be upon us. This defies the liberal translation of religion: do what feels nice.
In respect to our overall judicial network, I can only praise the Supreme court for their integrity. There seems to be an undertone of common-sense in most of their rulings, not a biased tone pitting D's against R's.
The sheep can rest assured this year. There will be no intervention required, on behalf of the highest court.
April 29th, 2008 at 11:34 am
"The sheep can rest assured this year. There will be no intervention required, on behalf of the highest court."
True. And why?
Because 1) the nomination of B. Hussein Obama will alienate many Reagen Dims and 2) the U.S. Supreme court's approval of photo-ID for voting will make it harder for the Dim city machines to vote their dead and the illegal aliens, resulting in a landslide win for even a wet noddle like McCain.
And should Comrade Hillary steal the nomination from BO, then 1) the Negroes will be in in snit and a sufficient percent of them will stay home and 2) the a good portion of the loony Left, which has backed BO 100% thus far, will go to Ralphie Nader. This too will result in a McCain landslide.
Poor Dims; they don't know what to say anymore.
April 29th, 2008 at 1:01 pm
Vince: And should Comrade Hillary steal the nomination from BO,
The sheep puzzle me how they get their fleeces knotted so easily.
How can something be stolen, when it is permissable within the rules?
I guess their "entitlement" mentalities getting the best of them.
April 29th, 2008 at 4:29 pm
Rev,
As noted, the Supreme Court vote was 7-2 against Gore, meaning only the most extreme liberal wing of the Court (and only part of it at that) agree with you.
Every recount Gore requested was held. The Supreme Court didn't inject themselves into anything. Stop with your phony narrative and deal with reality. Like Scalia said, get over it already. You are the embarassment, not Scalia. He is doing the job a Justice is supposed to do.
April 29th, 2008 at 4:50 pm
Alex notes, that technically speaking, Comrade Hillary can't steal the elections if she takes it 'within' the rules.
I stand corrected and should ave said something like this. "If and/or when the comrade finagles the nomination away from the hapless BO, …"
And as for the rules, the Dims barely have any. Everything is loosey-goosey with them, which incidentially is how the Dims treat the U.S. Constitution — something to be inturperted for the expediency of the moment by the group having the raw power to do so.
As the Dim train wreck of a primary shows, this nebulous approach to rules is no way to select the party's nominee — nor is any way inturpert the constitution in a democracy.
April 30th, 2008 at 8:13 am
roy…and others….: Elections are the states' right. Agree or disagree?
I noticed no one took on the main point of my comment. Anybody here think the states don't have the right to determine their own elections?
Bring proof.
AND….some wilder-eyed commenters look at yesterday's ruling, where no original crime could be found in the state of Indiana, and say, without irony, the court's ruling wasn't activist. Nothing more need be said.
King's blog has been running on wingnut fumes lately.
May 1st, 2008 at 5:27 am
Rev,
Yes, presidential elections are state events, not federal events. We actually don't have a federal presidential election, we have 50 state elections (and an electoral college).
Buuuttt, it still remains that the Supreme Court is the highest court in the land, and when they are ASKED to render a verdict, they do so. They rule on state issues all the time, as they just did regarding Indiana voter id law. What, you think they should have refused to take up Gore's request in 2000 ? That one was rather important, don't you think ? Lawyers appeal to the Supreme Court for a ruling. The Supreme Court doesn't just inject itself willy nilly into an issue. Your argument is fatuous.
On voter id, you are again misstating the argument. It doesn't matter if there were a million documented cases of Indiana voter fraud or none. That is not the issue. The issue before the Supreme Court was…Is voter id law unconstitutional ? It clearly is not. You don't seem to even understand what the word 'activist' means regarding the Court, because the Supremes voter id ruling is the opposite of judicial activism. It is an example of applying the Constution to the case, which is what the Supremes ARE SUPPOSED TO DO. You seem to regard it as judicial activism if YOU don't agree with the ruling. You're just making it up as you go along.
May 1st, 2008 at 10:45 am
So Who Are the Activists?
WHEN Democrats or Republicans seek to criticize judges or judicial nominees, they often resort to the same language. They say that the judge is "activist." But the word "activist" is rarely defined. Often it simply means that the judge makes decisions with which the critic disagrees.
In order to move beyond this labeling game, we've identified one reasonably objective and quantifiable measure of a judge's activism, and we've used it to assess the records of the justices on the current Supreme Court.
Here is the question we asked: How often has each justice voted to strike down a law passed by Congress?
Read the full article at
http://www.nytimes.com/2005/07/06/opinion/06gewirtz.html
May 2nd, 2008 at 10:09 am
Good link from jimmy.
King says: "the Supreme Court is the highest court in the land, and when they are ASKED to render a verdict, they do so. "
Not exactly. The Chief Justice picks and chooses which cases he'll hear. Right? He refuses cases. Right? Happens all the time. How would we know whether the cases accepted and/or refused weren't acepted/refused for political purposes? Like Bush/Gore? Like a non-existent voter fraud issue in Indiana?
So it doesn't make any difference whether there are any actual violatons of law before a new law can be ruled upon by the Supremes? So, it's all just a good academic exercise to, you know, keep those lawyers sharp, huh? All meaningless to Americans because there is no existing evidence that a problem exists.
The taking up of the Gore case was completely unnecessary. Florida had every right to count their votes any goddamn way they wanted. The Indiana ID case was transparently taken up by Roberts (the timing is a dead giveaway) to help Republicans in Indiana this Tuesday and to help all Republicans this November.
Roberts chose to hear this law that was written by Republicans who were still looking for a violation when they signed it. This stuff couldn't be any clearer.
Voter fraud……the new WMD.
May 4th, 2008 at 12:04 pm
Scalia is the ultimate activist judge. He seeks to undo the interpretation of the law of previous justices. Both he and Thomas had children working for Bush and thus should have recused themselves. However, the states have the right and duty to manage their elections and the case about the 2000 election should have never been heard.
May 4th, 2008 at 8:34 pm
I get it now–the states should manage their elections unless they want to hold a primary early. In that case, we should disenfranchise all voters in the state.
May 4th, 2008 at 10:14 pm
Mr. d,
Apples and oranges, dude.
May 10th, 2008 at 8:12 am
If you guys didn't want the 2000 Bush v Gore case to be heard by the Supreme Court, then criticize Al Gore for requesting it, not the Supremes for agreeing. Was there some MORE pressing case in front of the Supreme Court at that time, like maybe the ACLU demanding that "In God We Trust" on a coin would destroy the moral fabric of the nation, or the ACLU demanding that a Voodoo priest sacrificing a goat in his NYC basement is protected religious speech ? I don't think so.
Btw, the Bush v Gore decision wasn't close. It was 7-2, and that was BEFORE Roberts and Alito came on board. The 2000 Supreme Court was LESS conservative than today's.