Antonin Scalia: Judicial Activist
Justice Scalia likes to boast that he follows his strict-constructionist philosophy wherever it leads, even if it leads to results he disagrees with. But it is uncanny how often it leads him just where he already wanted to go. In his view, the 14th Amendment prohibits Michigan from using affirmative action in college admissions, but lets Texas make gay sex a crime. (The Supreme Court has held just the opposite.) He is dismissive when inmates invoke the Eighth Amendment ban on cruel and unusual punishment to challenge prison conditions. But he is supportive when wealthy people try to expand the "takings clause" to block the government from regulating their property.
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The classic example of conservative inconsistency remains Bush v. Gore. Not only did the court's conservative bloc trample on the Florida state courts and stop the vote counting – it declared its ruling would not be a precedent for future cases. How does Justice Scalia explain that decision? In a recent New Yorker profile, he is quoted as saying, with startling candor, that "the only issue was whether we should put an end to it, after three weeks of looking like a fool in the eyes of the world." That, of course, isn't a constitutional argument – it is an unapologetic defense of judicial activism.
When it comes to judicial activism, conservative judges are no better than liberal ones – and, it must be said, no worse. If conservatives are going to continue their war on the judiciary, though, they should be honest. They do not want to get rid of judicial activists, a standard that would bring down even Justice Scalia. They want to rid the courts of judges who disagree with them.
[Excerpt from"Psst … Justice Scalia … You Know, You're an Activist Judge, Too", by Adam Cohen, New York Times, 19 April 2005.]