Scalia and the law

If you caught Leslie Stahl's profile of Supreme Court Justice Antonin Scalia last night on "60 Minutes," you saw another terrific example of just what a bad interviewer Stahl is.

Scalia was seeking attention for a new book, so he opened up to "60 Minutes," talking about his view that the court should rule based on the intentions of America's founders and not view the constitution as a living document. If flexibility is needed, he believes that should come in the law-making process.

Where Stahl dropped the ball was in not pursuing this point. If a law is challenged and ends up in the Supreme Court, it's the court that decides the issue, not Congress. Courts set the boundaries legislative flexibility.

The danger is Scalia's position was illustrated in 2005 when the justice appeared before students at New York University and took questions. According to The Nation, "student Eric Berndt asked Scalia to explain his dissent in Lawrence v. Texas, the 2003 Supreme Court case that overturned Bowers v. Hardwick and struck down the nation's sodomy laws."

As part of his questioning, Berndt asked Scalia if he sodomized his wife. Berndt's microphone was promptly turned off. In the following days, Berndt was villainized and he responded in an open letter which said, in part,

Justice Kennedy's majority opinion in Lawrence asked whether criminalizing homosexual conduct advanced a state interest "which could justify the intrusion into the personal and private life of the individual." Scalia did not answer this question in his dissent because he believed the state need only assert a legitimate interest to defeat non-fundamental liberties. I basically asked him this question again--it is now the law of the land. He said he did not know whether the interest was significant enough. I then asked him if he sodomizes his wife to subject his intimate relations to the scrutiny he cavalierly would allow others--by force, if necessary.

It's worth reading the entire letter using the link above, but suffice it to say, Berndt believes his impertinence was necessary to demonstrate the outrageousness of Scalia's position.

Antonin Scalia is an engaging individual who hides beneath the cloak of an honest man. His motives are pure only if he is infallible, which he is not. But that's not an opinion he shares. He openly claims his views are the correct ones.

Such bravado is dangerous from a Supreme Court justice who has the power to decide whether the police may enter our bedroom and who will be the next president of the United States. It's the same attitude we've seen in an administration that interprets laws as it sees fit.

No judge comes to the bench devoid of filters created by beliefs and experiences. We are all human.

But when humans judge humans, a touch of humility is in order so that we are not all forced to live in the United States of Scalia.

    -- Jim Grinstead

Comments

[Southern Beale]

I guess I'm the last progressive in America to find this out but I just learned over the weekend that both Scalia and Clarence Thomas had FAMILY MEMBERS working on the Bush/Cheney transition team in 2000. Which means, they clearly should have recused themselves from Bush v Gore, and didn't.

And telling me to "get over it" just makes me want to see him impeached all the more. Hey, Nino: {rude gesture}