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Original Sin: Scalia Unplugged

Attorney Andrew Cohen analyzes legal issues for CBS News and
Within the friendly confines of the National Review Online, under giggly persuasion from idolator/interviewer Peter Robinson of the Hoover Institute, far from any pesky students asking earnest but bothersome questions, and as part of an in-term promotional tour to sell his book, United States Supreme Court Justice Antonin Scalia relaxed and let it flow.

In a remarkable five-part series of interviews posted last week, the conservative and deeply devout ideologue, who believes that the Constitution must be applied narrowly as written with only the original intent of the Framers to guide modern jurists, consistently evoked the religious notion of sinful temptation to describe how so many of the rest of us have come to believe otherwise. He has said many of these things before -- but perhaps never as casually.

In Scalia's cloistered world, the judges, lawyers, and politicians who have enabled the Constitution's scripture to be interpreted broadly enough to be used to try to erase segregation or discrimination or prisoner abuse, or to try to protect and expand privacy rights, are really just weak sinners who couldn't resist the urge to meddle. Adam bit the apple. The Supreme Court desegregated schools. Both failed miserably in Justice Scalia's eyes.

Scalia apparently still considers himself "an embattled minority within the profession" (to use Robinson's words, not Scalia's) despite the fact that a strong majority of federal judges currently are Republican nominees (the GOP held the White House for 20 of 28 years before Barack Obama took office in January). Indeed, survey after survey suggests that the federal judiciary is surely as conservative as it has been since at least before the Great Depression. Justice Scalia was nominated to the bench in 1986 by President Ronald Reagan. He received a perfect 98-0 vote from the Senate, the last Justice to gain such unanimous consent.

Although Scalia acknowledges gains for the movement of which he's the de facto leader, in his view the rollback of Warren Court-era rights-- initiated by the Rehnquist Court and now devotedly sustained by Chief Justice John G. Roberts, Jr.-- hasn't gone nearly far enough. "Are you a champion of a lost cause," Robinson sympathetically asked. "I'm not optimistic," Scalia responded with all the drama of a television preacher. "I'll put it that way. I'm certainly fighting back to get to where we used to be…

"But I have to say it's a hard fight because the other philosophy is so alluring, I mean, what a wonderful feeling that whatever you think the Constitution ought to say it says. If you think it ought to contain a right to same-sex marriage, it does," Scalia added, "if you think it ought to contain a right to abortion, it does; a right to suicide, it does… Anything you hate is forbidden by the Constitution. Everything you love is required. It's hard to talk people out of that," Scalia said.

This is, indeed, the lament of Originaliasts; too many appointed judges, and not enough elected legislators, get (or usurp) the final call on contentious issues. It's a philosophy that exalts politicians at the expense of judges; a theory that, even Scalia concedes, presumes that democracy works far better than it actually does. It's also a theory that tends to discount the import of the Bill of Rights as an active check upon the tyranny of the majority.

Scalia is right. It is harder now than ever before to argue against support for the Supreme Court's Brown v. Board of Education that ended legal segregation in 1954. It's hard to argue against the Court's 1964 ruling in Loving v. Virginia that gave men and women the right to marry one another regardless of their race. But what Scalia considers the legal sin of temptation towards a "living Constitution"-what he mocks as "alluring" but not legally legitimate-- most of the rest of us proudly consider societal advancement. The allure, in other words, was real and, now, comfortably justified.

Who among us wants Jim Crow to come back to America? Who now would tolerate restrictions on the sale of contraceptives to adults? And has the world stopped spinning since bans upon consensual homosexual sex between adults, or same-sex marriage, were deemed unconstitutional? Of course it hasn't. Would these developments have occurred anyway without court intervention or stimulus? Perhaps. Would they have occurred when they did without judges? Absolutely not. Are we better off for it? Scalia clearly doesn't think so.

Robinson asked Scalia if there were something about modernity, or the media, which helped explain why so many Americans still do not endorse Scalia's originalist beliefs. Scalia responded with zealous scorn for his fellow judges. "Not that distorting the Constitution is something new. You've had willful judges from the beginning and will have them until the end of time but the difference is that until the acceptance of this new orthodoxy of a 'living' Constitution, until then, in order to distort the Constitution you had to do it the good old fashioned, honest way, you had to lie about it, and you don't have to lie anymore. You can say, 'oh yes, the death penalty used to be okay, it no longer is. Because we say so.'"

Scalia went on, more sermon than statement. "As far as I know, there is only one element of my faith that has anything to do with my being a judge…. 'Thou shalt not lie.' I observe that in all my judicial decisions. I never pretend that a case is not being overruled when in fact it is. And I never shade a case to make it say something that it isn't. I think the legal system suffers from that kind of cutesy-ness." Alas, Robinson didn't ask Scalia to name names-to identify the judges/Justices he believes are lying in their written opinions. That would have made their friendly, intellectually flirty conversation an exercise in actual journalism.

I never understood until now just how deeply Justice Scalia's legal philosophies and tactics are dictated by his religious fervor. Judges with whom he disagrees aren't just wrong they are "willful" and "distorting." The nation's continued rejection (in the main) of Originalist doctrine is based not upon historical weaknesses in the doctrine itself, or upon our general acceptance of judges as change agents when the other two branches have failed, but upon wicked "temptation" oozing out to jurists who have no faith or who just haven't seen the light.

This is the jurisprudence of the self-righteous; where faith in the omniscience of the Constitution's founders dwarfs all of the evidence we now have that the rich, white, often-slave-owning men who negotiated the terms of the document (and the Bill of Rights) were just as prone to vice, self-interest, and poor judgment as their political successors. Scalia is still a true believer in "original intent" because it's in his religious, faithful, prayerful nature to believe in things he cannot know. The irony, of course, reaching truly religious proportions, is that this Manichean world of black and white, right and wrong, good and evil, is precisely the opposite of what the world and art of judging are.