1. My main goal in this argument is to say that Scalia is an activist judge. And that conservatives (as a generalization) don’t want to acknowledge or believe it. Scalia is not the model of an impartial jurist. I just want that admitted by the right in this country and by and large it is not admitted. So there is this self delusion on the part of conservatives that really irks me. They just need to admit that they like Scalia because he furthers their agenda, not because he is an amazing jurist.

2. To Sherpa: I agree that a legislative remedy is best, but I’m a cynic and believe the wheels of democracy turn slowly and are sometimes in the hands of interest groups rather than people on the ground. Would a legislative remedy that occurred in 1965 been more or less effective than a court decision to end segregation in 1953? Segregation, though illegal after 1953, did not really end on any meaningful level until a decade later when the Civil Rights Act of 1964 threatened to withold federal funding from segregated schools. And even then many schools chose to shut down completely rather than admit black students. The atmosphere was not right for any kind of legislative remedy in the South at that time. I don’t think the National Guard needed to be called in because it was a COURT decision. A congressional decision would have drawn just as much ire.

And with that, I;m done.

Cheers on the thought provoking comments, Hypo staff.

I’m not sure Brown v. Board is a great example to use to justify judicial intervention. I can’t say I disagree with the decision, but to suggest that it lead to schools that look “a lot different” is a stretch.

HBO ran an excellent documentary on minority educational achievement that considered how the school (Douglass High) in Brown is every bit as segregated as it was in the 50s. And you can look at most schools and find a largely homogeneous student body. Sure there are notable exceptions that might not exist were it not for Brown (assuming also that the legislatures wouldn’t have done anything) but by and large a SCOTUS ruling did not change the culture, even if it changed the law.

I bring this up to suggest that there are practical barriers to using the courts to advance the cultural and social changes that many of us might agree with. The court may very well have done the right thing in Brown. We all believe that every student should have equal opportunity. Let’s not fool ourselves into thinking that it was more effective (or beneficial for African American students) than fundamental cultural change expressed in bipartisan legislative action would have been. If anything Brown fooled us into thinking that enough was being done and took pressure off the political branches to enact serious education reforms when they were needed (i.e. changing revenue sources, dealing with math and engineering shortcomings, etc).

Likewise, in Heller, no matter what SCOTUS decided, it could never address the serious social and cultural challenges guns present to our country. Gun control laws or not, gun violence is a serious problem. Ability to carry a firearm or not, you can’t defend yourself against the state or use it at will against criminals. These issues, generally, are best left to legislative bodies and communities to solve (though I sympathize with the idea that the political system seems broken and non-responsive).

Re-read Scalia’s quote. It is not controversial at all. He said it is perfectly rational to deny special favor through a classification of those who engage in CRIMINAL conduct. The first part of that sentence is key. Its no different than saying murderers or rapists would not be a protected class under the 14th amendment.

Am I saying that homosexuality should be criminal? No. I personally don’t think that it should be. But I agree with Scalia that the proper remedy in a default majority government is the legislature. That is to say, I agree with Scalia that nothing in the Constitution prohibits a state from making homosexual acts illegal. Would I personally vote in favor of such a law? No.

And that leads me to Brown v. Board. That is the classic example that those in favor of judicial review like to point to to justify every single opinion. It would be difficult to suggest that it plays no role in our government, especially in the wake of Marbury v. Madison. But considering that whether the power exists in the first place is open for debate, I firmly believe that it should be reserved for only the rarest of occassions so as not to interfere with the democratic process. I would agree that Brown v. Board was one of those rare situations, although its interesting to note that it could have been resolved through the equal protection clause rather than by relying on the “substantive” portion of the due process clause.

1) You view Scalia’s rantings through an interesting and quite frankly a little bit disturbing lens. His exact words were: “If it is rational to criminalize the conduct, surely it is rational to deny special favor and protection to those with a self-avowed tendency or desire to engage in the conduct.”

Deny protection. It’s there in black and white. It’s a-ok with Scalia if a state says that a homosexual has no cause of action for being discriminated against due to being gay.

2) All the state has to do is stick a morality tag on it and the conservatives eat it up. Homosexuals cause no harm to society but because it is viewed as “immoral,” Scalia has no problem with a state passing such a law. So if a Wal-Mart owner doesn’t want to hire a gay person because they are gay because it offends their moral sensibility, it’s ok according to Scalia.

3) You seem to have the idea that the minority can be crushed by the will of the majority because that’s how democracy works. Not only is that frightening, it’s very closed minded. Good thing those with that kind of viewpoint weren’t on the court for Brown v. Board, otherwise the educational system would look a lot different today. But, hey, I guess if I don’t like the results of “Democracy,” I should just leave instead of trying to make society better. And god forbid someone tries to do it in a non-democratic way, because Congress really does a great job getting rid of societal ills. I mean look at the marvelous job they did with slavery. I’m sure the million that died in the Civil War were happy that the Democratic process worked so well.

4) How do you feel about the article from the NY Times painting in vivid colors Scalia’s activism?

1) Scalia says in Romer that homosexuals are not a “protected class” (whatever that means) under the Equal Protection Clause of the 14th Amendment. Therefore, the State is free to regulate based on that class assuming that it can provide a rational basis for its legislation. He certainly did not say homosexuals could not have protection from discrimination under the law.

2) People named Matilda with black hair also would not be a protected class. However, I would think that the state would have a pretty difficult time even passing rational basis review for singling out such a class. Plus, if the law were criminal in nature, it would face serious bill of attainder problems.

3) Im sorry that Congress doesn’t work as swimmingly as you would like, but that is the system that we adopted when we broke away from England. If you don’t like it, petition to try to amend the Constitution (or whatever authority sets up our current governmental structure) or leave. Your problem seems to be rooted in the central tenant of democracy: that everyone’s opinion matters, even those that you starkly disagree with. Instead of trying to circumvent democracy through judges that happen to agree with you, how about exercising your First Amendment right to express yourself and convince the majority that your position should stand supreme? I know I know, revolutionary concept….

http://www.nytimes.com/2005/04/19/opinion/19tue3.html

And here is spot on (and completely true commentary) on one of my favorite Scalia hypocrite moments of all time:

“In a 1991 decision, Justice Scalia wrote that “despite the narrowness of its terms,” the 11th Amendment has been understood by the court “to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms.” If another judge used that rationale to find rights in the Constitution, Justice Scalia’s reaction would be withering.”

It WOULD be withering. Scalia would rail against those damn activist judges.

First, criminalizing homosexual behavior is asinine. Yet, Scalia, caveman that he is, is fine with it and in fact USES it to buttress his argument that the state can make gays immune to protection from discrimination. Because the state frowns on a class of people, they should be able to set up an environment where that trait can be openly discriminated against without any repercussions.

He also says “Since the Constitution of the United States says nothing about this subject [homosexuality], it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions.”

So since the constitution says nothing about the subject of women with black hair named Matilda, a state legislature can pass a law saying that there is no penalty for discriminating against that person based in their black hair and name.

And Scalia would be fine with it. In fact, everyone would be fine with it, unless you were in the persecuted minority. But hey, the court’s not there to protect powerless minorities. Oh WAIT. It actually is there for that.

And conservatives typically idealize Congress as this dynamic body that responds to the whims of the people and every law that comes out of that body represents the will of the people. I can tell you for sure that MY congressman has not done everything I put him in office to do. And I have the right to vote him out and I guarantee that the next person doesn’t either. Politics is not this idealized world that conservatives make it out to be.

But I digress. I’m interested in what your interpretation of Scalia in that case is?

I’m not going to get into a big long debate with you about this, but a couple things of note:

1) I do care about politics. I just believe that the Supreme Court is not the venue where political issues should be decided.

2) Regarding your Jim Crow hypo, you act like Congress is some independent being rather than a body of elected officials. You want the law to change, fine. Go out there and garner support for your position, get the right people elected to advocate your position, and change the law. Thats what is at the heart of a democratic system.

3) I read Romer, and thats not what Scalia said at all.

You care about the law but not about politics? So there is no role for the courts if a state is doing something grossly immoral (like Jim Crow) and the court is the only instrument to end it effectively because Congress can’t or won’t get its act together to fix it OR it is perfectly within a state’s right to act that way regardless of what the federal gov’t says?

So in your mind, if the court’s did not step in to de-segregate schools and Congress was unable to step on a state’s toes to stop it, the South should have just been allowed to keep an underclass down as long as it saw fit? So if a state nowadays wants to turn into New Iran and pass laws that specifically say homosexuals CANNOT have protection under the law in reagrds to discrimination, the court should just butt out and let the state descend back to pre-industrial times? The Supreme Court overturned that law by the way (a constitutional amendment in Colorado) with Scalia’s dissent basically saying “If a state hates gays, let them hate the gays.”

Romer v. Evans is the case, by the way.