Posted by: Catherine Lugg | January 6, 2011

Justice Scalia and his problems with the 14th Amendment

It seems that Supreme Court Justice Antonin Scalia has been waxing philosophical when it comes to Supreme Court jurisprudence, well, at least his own when it comes the 14th Amendment and discrimination against women. He clearly falls into the originalist camp, or those folks who hold that the original meaning of the US Constitution should hold when deciding contemporary legal issues.

Now, I’m not a fan. As a matter of history, originalism fails badly, almost laughably (how do originalists explain that pesky 9th Amendment?; The Brown Decisions? ). But for those wedded to a almost divine Constitutional literalism (much like biblical literalism), originalism gives aid and comfort to some of the worst forms of bigotry in the US.

Additionally, Scalia seems to blithely ignore the tenets of precedent when such decisions don’t serve his own interests in specific outcomes. Joan Walsh has a very nice takedown on Scalia’s ill-reason.

Scalia has been a defender of white male power and privilege for his entire judicial career. And he’s penned some of the most poisonous opinions regarding women and queers (see Lawrence v. Texas to start). But he may have just opened himself up to impeachment charges. From the interview:

“I do not pretend that originalism is perfect. There are some questions you have no easy answer to, and you have to take your best shot. We don’t have the answer to everything, but by God we have an answer to a lot of stuff – especially the most controversial: whether the death penalty is unconstitutional, whether there’s a constitutional right to abortion, to suicide, and I could go on. All the most controversial stuff. I don’t even have to read the briefs, for Pete’s sake.”

If Scalia is claiming his ideology is more important than the briefs–and that he doesn’t have to read the legal briefs–then he is NOT an impartial judge This isn’t exactly news, but it IS shocking to see him admit as much. So, Scalia is admitting that he “pre-determines” the results of any case based on his ideology.

Does anyone want to call their US Senators?

Hat Tip: Malila Robinson


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