Antonin Scalia’s Contemptus Mundi

by ELAINE CASSEL

Supreme Court Justice Antonin Scalia, who has been heard to say that he thinks he is too smart for the Court, let fly his contempt for his colleagues last week. Speaking of the court’s decision in Lawrence v. Texas, which earlier this year struck down Texas’s homosexual sodomy law, he lambasted the majority for twisting the Constitution to suit its liberal agenda. Liberal? Souter, Ginsberg, and Stevens, yes. But Justices Kennedy (who wrote the majority opinion), O’Connor, and Breyer?

When it suits him, Scalia calls himself a "strict constructionist" of the U.S. Constitution. For instance, the death penalty can never be cruel and unusual punishment because the death penalty was in use when the Constitution was drafted. Sodomy must be a crime today, because, he said this week, it was a crime at the time of the country’s founding. Of course, the strict constructionist argument runs into trouble when it meets modern technology. In a case decided a couple of years ago, Scalia believed that the Constitution’s ban on unreasonable searches and seizures reached to heat-sensing technology that detected the growth of marijuana plants in a house. How could that be unconstitutional when heat-sensing technology was not on the minds of the founding fathers?

According to news reports, Scalia, speaking to the ultra-conservative Intercollegiate Studies Institute, read from the Lawrence opinion in mocking tones. Ironic, inasmuch as the 50-year-old institute has says its mission is to "enhance the rising generation’s knowledge of our nation’s founding principles – limited government, individual liberty, personal responsibility, free enterprise and Judeo-Christian moral standards." The organization, like its famed speaker, draws the line at your individual liberty. They get theirs, you don’t get yours if it is contrary to theirs. And there is only one Judeo-Christian moral standard–their own.

Scalia is not alone in his condemnation of his colleagues on the high court. Clarence Thomas has repeatedly talked about the cold and lonely place that is the Court. He shows his contempt for oral arguments by generally refusing to participate.

Why is it that the right, especially the religious right, represented by the likes of Scalia on the court, are so totally unaccepting of another’s point of view? Do they truly believe that they have all of the answers to all legal, legislative, and social issues? This week I gave a legal seminar to attorneys in a part of Virginia where Rev. Pat Robertson seems to have a lock on "truth." A couple of religious zealots in the seminar derided other attorneys who tried to talk about life and death issues such abortion, end-of-life treatment, stem cell research, and health care for all Americans. We were supposed to be talking about legal conundrums and challenges.

But to some, there was nothing to discuss. "God" decides who lives and dies, and even who is fortunate enough to get health insurance. As one dissenting lawyer said, "You mean your God? Then if we feel that ‘our’ God acts on human events in a different way, we lose?"

While Scalia’s remarks did not have a religious context, they stem from his religious views that carry bigotry and intolerance to the extreme. It is impossible for Scalia to entertain rational debate and to interpret laws outside the spin of his religiopolitical view of the world. He, not his colleagues that carried the day in Lawrence v. Texas, should be mocked and criticized. But they are more fair-minded, tolerant, and judicious in manner and conduct and would not stoop to the depths of Scalia’s ill manners.

As jurists, the majority, and perhaps even dissenters Rehnquist and Thomas (who do not, even in dissent, engage in personal diatribe against their colleagues) looked at the issue of the Texas law as they are supposed to–examining it from historical, social, and legal perspectives. Justice Kennedy’s opinion is well-reasoned, thoughtfully argued, and consistent with the equal protection clause’s mandate that extends the guarantees of the constitution to people that Scalia hates.

Hateful, cruel, intolerant Scalia. Long may he rant and spew his intolerance across the land. The more Americans hear it, the more, I am convinced, they will reject it.



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