Antonin Scalia. Possibly the most brilliant mind in politics. Definately the brightest Justice on the Supreme Court. He would make an outstanding Chief Justice but would never get the chance.
He & Justice Stephen Breyer had a debate on C-Span last night. I wish I'd have known about it. Maybe it'll replay soon.
Here is a prime example of the gulf between Liberals & Conservatives.
Moderator: (paraphrasing) "Justice Scalia, you said that 60 years ago originalism was basically not abandoned, but at least is less important in decisions today." "And I think every justice has to deal with the issue of precedent. In the Supreme Court, precedent is not binding in the sense that your court can overall its own precedents. So the question is this: Let me ask the following hypothetical. Suppose your court had never had any jurisprudence on abortion and all of the abortion jurisprudence, including your own opinions, were by Canadian judges. Would there be any interest, would there be any point in reading that and looking at it as well-reasoned, not well-reasoned, helpful or not helpful, in developing doctrine?"
Scalia: I wouldn't look to Canadian law. I look at the text. It says nothing about it. And I look at 200 years of history. Nobody ever thought it said anything about it. That's the end of the question for me. What good would reading Canadian opinions do unless it was my job to be the moral arbiter, which I don't regard it as. I regard the constitution as having set a floor to American society. That floor says nothing about abortion. It's not the job of the Constitution to change things by judicial decree. Change is brought about by democracy. Abortion has been prohibited. You want to change that? American society think that's a terrible result? Fine. Persuade each other about that. Pass a law and eliminate the laws against abortion. I have no problem with change. It's just that I do not regard the Constitution as being the instrument of change. By letting judges read Canadian cases and saying, "Yeah, it would be a good idea not to have any restrictions on abortion." That's not the way we do things in a democracy. Persuade your fellow citizens and repeal the laws. Why should the Supreme Court decide that question?
Integrity at it's finest. Let the law reign supreme, not the court(s). If the Constitution doesn't address it, give the problem to the law makers, not the courts.
Using the same logic, he turned the tables on the moderator
Scalia: We are one of only six countries in the world that allows abortion on demand at any time prior to viability. Should we change that because other countries feel differently? Or maybe a more pertinent question: Why haven't we changed that if, indeed, the court thinks we should use foreign law? Or do we just use foreign law selectively? When it agrees with what the justice would like the case to say, you use the foreign law, and when it doesn't agree, you don't use it. Thus, you know, we cited it in Lawrence, the case on homosexual sodomy. We cited foreign law. Not all foreign law. Just the foreign law of countries that agreed with the disposition of the case. But we said not a whisper about foreign law in the series of abortion cases. What's going on here? Do you want it to be authoritative? I doubt whether anybody would say "Yes, we want to be governed by the views of foreigners." Well, if you don't want it to be authoritative, then what is the criterion for citing it or not? That it agrees with you? I don't know any other criterion to bring forward.
Brilliant. I love this guy. Niner justices with his logic & understanding & the country would be set.
Now, let's see a liberal at work
Breyer: I wrote a dissent which you thought was totally wrong, and it was in from a denial of cert and the question was this: Is it a cruel and unusual punishment to keep a person on death row for more than 20 years before executing them? And I wrote an opinion that suggested a dissent, that I thought this was quite likely, quite possibly would be -- the answer to that question would be yes. That cruel and unusual punishment. Now, where do I look? You say oh, I should look to myself. If I look to myself, I might be able to get an answer much faster. Let's say I don't look to myself. I mean, can I jump out of my own skin? No. No human being can. But let's see what's around. And of course I wrote this thing not too convincing, but I found opinions in the privy council in England where they had upset Jamaica.
JUSTICE SCALIA: Reversing an earlier one of their own cases.
JUSTICE BREYER: Right. Correct.
JUSTICE SCALIA: So they don't even pay attention to their own opinions.
Justice Breyer thinks to look to himself, instead of the law, in forming an opinion. Not finding a suitable opinion in his mind, he looks to an outside source, instead of our own laws & Constitution, and finds one he likes. Not one that has a valid legal reasoning in America but one he likes & it turns out to be a reversal of an earlier court case somewhere else.
Breyer: India, they've written a pretty good opinion. There was one in Canada. The UN had discussions on this. And they weren't all one way and I cited things the other way, too. Anything I could find. And then I think I may have made what I call a tactical error in citing a case from Zimbabwe, not the human rights capital of the world, but it was at an earlier time, Judge Gubbay was a very good judge so I'd written this, and of course I looked -- I don't think that's controlling. But I'm thinking, well, on this kind of an issue, you're asking a human question, and the Americans are human, and so is everybody else, and I don't know, it doesn't determine it. But it's an effort to reach out beyond myself to see how other people have done. Though it does not control.
An effort to see what non-American law has done that can be used to set precedent in American law? Again, instead of looking to our own courts for precedence or our Constitution, he looks outside to find something based not on law but on what is human. Not very reassuring for such a smart guy placed in such an outstandingly important position.
We need more Scalia
