Here at The League, we promote the sort of reasonable discourse that forces us to give our ideological opponents a fair hearing. This rigor demands our consideration, lest we unfairly dismiss the legitimate claims of those we’re most predisposed to disapproving of. It is a good standard. With that out of the way, I want to present the following theory about Antonin Scalia.
This is what Supreme Court Justice Scalia recently said, apparently without then laughing hysterically:
It’s not a living document. It’s dead, dead, dead,” Scalia said during a guest lecture at Southern Methodist University, while promoting his new book, Reading Law: The Interpretation of Legal Text.
The Reagan-appointed jurist, who shared the stage with his co-author Bryan Garner, argued that good jurisprudence is about sidelining one’s personal beliefs.
“The judge who always likes the results he reaches is a bad judge,” Scalia said.
Although I am generally skeptical of people like Scalia – people who claim that they do their work objectively and without bias* – I would be willing to give him the benefit of the doubt if he had immediately provided a comprehensive list of every decision he’s ever made which he didn’t personally “like.” Oddly, Scalia didn’t seem to have such a list at the ready, and as nearly as I can tell from what research I’ve done, has never offered such a list at any event, nor even hinted at such a list’s existence, nor ever muttered anything along the lines of, “Holy shit! I really hated making that Raich decision because I love getting high as a kite, but then, what’re you gonna do? Judges gotta judge.”
Then there’s trying to figure out the implications of Scalia’s standard by which we’re meant to judge the judges. He says that the good judges are the ones that don’t like all of the decisions that they’ve made, which is a good enough standard, except for following:
1. if Scalia believes that the Constitution is “dead, dead, dead,” and,
2. if he applies his Originalism philosophy to every decision he makes (something that he certainly isn’t bound to do), and,
3. if he champions his originalism at every imaginable opportunity, and
4. if he believes that applying originalism is the thing that judges are supposed to do, then
5. maybe he thinks that he is a bad judge?
After all, if judges aren’t supposed to like their decisions, and Scalia insists upon originalism for everything, he must not like the decisions it forces him to make because if he did like them, he’d have to think he was a bad judge. Except that doesn’t make any sense. Surely he doesn’t believe that he’s bad at what he does. The only conclusion I can draw about what Scalia was saying is that he is in the midst of an existential crisis in which he feels torn between the judicial theory that he rigidly (and yet voluntarily) adheres to and the decisions it forces him to make.
So basically, what I’m trying to say is this: Antonin Scalia is a flaming liberal. We know this because we assume that he doesn’t believe he is bad at his job, and because his criteria for judging judges is the degree to which they don’t “like” all of their decisions, and because all of his decisions are so stunningly and predictably conservative, it must mean that he is in fact a closeted liberal doing what he thinks is right.
That is the most charitable reading that I can possibly give his latest comments.
And I believe that right up until I get to thinking about the Defense of Marriage Act case in front of the Supreme Court, because while those give him the perfect opportunity to make an originalist argument in favor of striking DOMA down – where again in the Constitution is the Federal Government tasked with defining marriage? where again did our Founding Fathers discuss marriage? – I think we all know what side he will find a way to support.
*A skepticism I have, it should note, of all people everywhere, regardless of belief, political or otherwise. This isn’t entirely Scalia specific suspicion.