I was tempted to start out this post with a string of curse words aimed at Justice Antonin Scalia this morning. I really don't want this blog finding its way into any nanny filters, so I'll skip the profanity and go to the causes thereof:
Justice Antonin Scalia criticized the Supreme Court's recent decision to strike down the juvenile death penalty, calling it the latest example of politics on the court
and
In a 35-minute speech Monday, Scalia said unelected judges have no place deciding issues such as abortion and the death penalty. The court's 5-4 ruling March 1 to outlaw the juvenile death penalty based on "evolving notions of decency" was simply a mask for the personal policy preferences of the five-member majority, he said.
Why is it that people are perfectly willing to point to other people's personal feelings when they disagree with them, yet remain oblivious to the fact that they too are motivated by feelings? Obviously this is a subject the esteemed Justice feels strongly about, so much so that he's gone to the trouble of making a speech about it. I think it is fair to assume he actually has feelings on the subject. Why is it OK for him to be motivated by his feelings but not other people?
And what exactly is wrong with using an "evolving standard of decency" as part of the decision-making process, anyway? As much as Scalia would like to pretend that this is still the 1700s, times have changed since the Constitution was written. It was an evolving standard of decency which removed the odious practice of counting blacks as 3/5ths of a person, for example. It was an evolving standard of dececy which gave women the right to vote. True, it was also an evolving standard of decency which kicked off Prohibition, but that mistake was pretty quickly rectified.
In short, I think Scalia is full of crap.
Comments (2)
Scalia is competely full of crap. He's trying to fuel the flames in Congress of the wingers who want to threaten with impeachment any of the Supremes who refer to foreign law in any of their decisions, as was done in this case (even though Scalia himself has done so in the past). He's an incredible hypocrite and a bad person, and most of the people who think he's a judicial genius probably wouldn't understand a word of his decisions even if they read them.
Posted by firedoglake | March 16, 2005 9:48 PM
Scalia's point is that 9 people should not create law, because legislation, and all of it's duties, is given strictly to Congress, the representative body of the people. When the Judicial Branch of government creates law, it in fact disenfranchises the American people. The left in this country claims to want a "living Constitution" so as to achieve "flexibility." But by allowing judges to make law by judicial fiat, you have taken away all flexibility. There is no way to change the law to fit the times unless those same 9 people want to overturn their prior decision.
As for the evolving standard of decency, who gets to decide what that standard is? Should it not be the people who decide through their elected representatives. It was not an evolving standard of decency that changed blacks from 3/5 as a person, it was adhering to our founding principles in the Declaration of Independence that the country had regrettably strayed from. Women achieved the right to vote through an amendment to the Constitution. People in this country voted for women's suffrage. Judges did not make the law. Prohibition again was enacted and retracted by the same democratic process.
Dred Scott, Plessy v. Ferguson, on the other hand were judicial decrees that were not in the Constitution but rather were the personal policy preferences of the Justices who decided. Roe, Lawrence, and now Roper follow in that line. In each case, the American people were deprived of making their own laws through their elected representatives. This is Scalia's point. Only someone who thinks the American people are too stupid to decide how they want to live and under what laws they adhere would want 9 unelected judges to decide for everyone.
Posted by Ryan | March 17, 2005 6:18 AM