Monday, February 15, 2016

An End To Faux Originalism

The Supreme Court's faux "originalist" has died. Last week, Justice Antonin Scalia, 79, passed while on a hunting vacation at a West Texas ranch. (Contrary to rumors, he wasn't shot by Dick Chaney.)

Justice Scalia has as been eulogized as a great intellect and mastermind of the conservative wing of the Supreme Court.

In my view, Justice Scalia failed on both counts. Rather than being a great intellect, he was an ideolog who used the "what did our Founders intend" mantra to cherry pick less relevant evidence to support his personal views. He did what a good debater has to do when the law doesn't support their position -- throw up a lot of detail in the hope that some of it sticks. Altho conservative acolytes found a lot to their liking, (true) constitutionalists were rarely convinced.

In the end, Scalia's so-called conservative leadership never garnered a solid majority -- largely because his views were often inconsistent with the Constitution.  For example, Justice Scalia, in his dissenting opinion in McCreary County v. ACLU of Kentucky (2005), opined that government may "favor religion over irreligion" notwithstanding the First Amendment prohibition "respecting an establishment of religion."

And contrary to the plain text of the Second Amendment that the right to bear arms is linked to being in the militia, Justice Scalia was only able to eke out 5-4 majority for his ideologically motivated individual gun rights position (D.C. v. Heller (2008)).  So much for looking to the text of the Constitution.

Justice Scalia was a flip-flop too. In his majority opinion in  Employment Division v. Smith (1990), the Court held that a government need only demonstrate a rational basis for a neutral law of general applicability but burdened a person's free exercise of religion. The Justice Scalia did an about face in joining opinions support Religious Freedom Restoration Act (RFRA) which gives religion a preference by requiring government to show a compelling interest in order to burden a person's free exercise of religion.

May Justice Scalia and America rest in peace.

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