This president’s day weekend I was off at the Southern California Writers Conference in San Diego, so I have been busy and light in posting. (The Conference was good, though I have gotten sick and missed the last day as I stayed home without appetite and with a light head.) I was at the conference when I saw the news appear on my phone that Scalia had died.
First I will not take in joy nor will I celebrate in any fashion his passing. His family, his friends, and those close him are in grief and to them I offer my sincere condolences.
I am relieved that he will no longer be influencing the Court, though it would have been better for all if this result had come from retirement and tragedy.
Yes, he was a brilliant man and he was a complex man. (Through back channels advocating for Kagan to be elevated to the court alone shows that he was not a simple caricature of a right wing extremist.) However, his clearly displayed intellect made his failing as a justice even more plain.
He was not a champion of human rights and liberty, he was a champion of states right when the states acted in a manner of which he approved. If a state moved in a direction that he did not approve of, such as legalizing marijuana or legalizing assisted suicide then his used his considerable intelligence to craft logical arguments designed to arrive at his predetermined and desired outcome even if that flew in the face of his stated beliefs about states’ rights and such. To my eyes, he was not a principled justice, but one who consistently applied the power of government to compel his views on morality. I will not miss his voice denying individuals their liberty.
You are certainly welcome to feel differently.
It is not that he was sometimes wrong, all people are, but that the direction was always reflecting his personal biases. He approved of liberty as long as it was being exercised in a manner that conformed to his morality. To my eye that is not liberty at all. He considered it a role of government to define and enforce private morality. Again to me, that is not liberty. He publicly spoke that government, the US Government, had no requirement to remain neutral on religion and should officially promote religion over non-religion. If one is gay or an atheist Scalia did not your liberty he was an enemy of it.
The 1st amendment is about much more than just freedom of speech. But even if we limit the discussion to free speech rights Scalia was on the right side, much more often than the wrong, and in important cases too.
http://www.newseuminstitute.org/2015/09/24/five-quotes-justice-antonin-scalia-defends-free-speech/
To describe Scalia as an enemy of liberty is upside down. Unless one is using a standard so uncompromising that every justice who has sat on the court since WWII is also an enemy of liberty.
http://www.slate.com/articles/news_and_politics/jurisprudence/2016/02/antonin_scalia_was_a_truly_great_supreme_court_justice.html
“Yeah, aside from that full throated support for 1st, 2nd and 4th amendment rights, Scalia was all about “denying individuals their liberty”.’
I will grant you he was pretty good on the 2nd and 4th, but no way can I agree that he displayed ‘full-throated’ support for the 1st amendment. Not when you consider Hazelwood School District vs Kuhlmeier where he carved out lesser free speech protections for student, and if you think well on school grounds and school publications that makes sense, he later extended that carve out to public sidewalks in Mores v. Frederick when student faced punishment for banner that read Bong Hits 4 Jesus. Scalia also dissented when SCOTUS overturned a PA law requiring a woman speak with her husband before getting an abortion. Compelled speech is not free speech.
In Lawerence v Texas where he held it was fine and proper for a state to criminalized sexual acts he did not approve of. The state and his morality trumped others’ liberty.
When a state tried to loosen laws over pot, he, the good conservative, used the New Deal interpretation of the commerce clause to shut it down
So you ae free to think of him as a defender of individual liberty, but I see too many instances where he did not and stood directly against it.
Yeah, aside from that full throated support for 1st, 2nd and 4th amendment rights, Scalia was all about “denying individuals their liberty”.
What is the libertarian take on Scalia?
http://reason.com/archives/2016/02/14/justice-antonin-scalia-libertarian-legal
“The point isn’t that Justice Scalia’s jurisprudence was libertarian—Kennedy votes with the Cato Institute’s position more and Clarence Thomas is a more faithful originalist—but that his commitment to the rule of law, and to bringing the Court back to a more principled jurisprudence, is in itself a libertarian victory. Without Scalia, the same kind of attention would not be paid to the Constitution’s text, structure, and history—especially by so-called liberal originalists.”
That seems pretty fair to me.
The new legal environment make it all the more obvious when judges inject their personal policy preferences in direct contradiction to the plain text of the Constitution, as Sotomayor did in McDonald v Chicago.
http://reason.com/blog/2013/02/05/does-sonia-sotomayor-respect-the-second