Scalia Misses the Days When It Was OK for Government Discriminate Against Gay People [View all]

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http://www.alternet.org/antonin-scalias-self-pitying-angry-nostalgia


Supreme Court Justice Antonin Scalia takes part in an interview with Chris Wallace on "FOX News Sunday" at the FOX News DC Bureau on July 27. Scalia, an outspoken conservative on the US Supreme Court, admitted Sunday that he likes to push people's buttons

Justice Antonin Scalia’s dissent in the Supreme Court case that declared the Defense of Marriage Act unconstitutional is, as expected, fun reading. It’s also quite representative of the current state of anti-gay marriage arguments in general: It is much more concerned with whining and raging than it is with actual argumentation.

Scalia’s main point is that the court has no right to strike down DOMA. In doing so, Scalia says, the Supreme Court has overstepped its authority.

It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere “primary” in its role.

The case could be made that this is sort of the only honest Originalist argument — there is nothing in the Constitution granting the Supreme Court the authority to determine the constitutionality of duly passed legislation, after all — but obviously this argument rather glaringly contradicts every single instance of Scalia voting to strike down a law. Indeed, it contradicts a decision the Supreme Court announced yesterday, in which the conservatives decided that a portion of the Voting Rights Act that they didn’t care for was unconstitutional because they didn’t care for it. But if Scalia wishes to recuse himself from all future cases involving constitutional questions, now that he has determined that Marbury v. Madison was improperly decided, I am not inclined to stop him.

Scalia is widely praised, even (perhaps especially) by liberals for his intelligence, his wit and his supposed intellectual consistency — he is thought to have a very specific interpretation of the Constitution and while it’s a dumb one he adheres to it — but this decision exposes him for the politician that he actually is. As Richard Posner has argued, Scalia will abandon both strict textual originalism and “judicial restraint” when it suits him. (Justice Thomas is actually better at coming up with legal and constitutional justifications for his social conservatism, consistent with his view that the Constitution may only be understood in terms of the political and social context in which it was written.)