"60 Minutes" and the Myth of Scalia

I chatted with Justice Scalia about ten years ago after a speech he made at the Jewish Theological Seminary in NYC.  In spite of the vast majority of Liberals in the audience, his charm, his spontaneity, won them (and me) over.

I had been impressed by his deciding vote affirming that the First Amendment prohibits any law against free political speech, even when it takes the form of burning the American Flag.  I value living in a society where the passions of the people are moderated by rules of this enduring charter that are difficult to overturn.

But then there was this opinion that showed that he was not whom he claimed to be:

The formal title is GONZALES, ATTORNEY GENERAL, ET AL. v. OREGON ET AL., a challenge by the Bush Administration to Oregon's Death with Dignity law.  

In yesterday's interview, as in the one I attended a decade ago, Scalia reiterated the bedrock principles that he follows as a Justice and affirms are the correct ones.

The Constitution is not "living," it is an enduring document that allocates the scope of power within the three branches of the Federal Government, and between the national government and the states. He then, rightly in my opinion, points out that if legislatures, representing the changing values of society, choose to allow same sex marriage, abortion or the death penalty, it is their decisions to make, not the court's.

He also makes the claim that although he is a devout Catholic, he is able to separate the edicts of his religion with those of the Constitution.  And when in conflict, he will invariably choose to follow the United States Constitution.

If he actually followed these tennets he would have my admiration.  

But in this one case I have studied in detail it is flagrantly false.  Here's the essayI wrote on the decision on the the "Oregon Death with Dignity web site"  It was a futile plea not to confirm Alito, who would make Scalia's position close to the majority.

Some of the principles Scalia claims to hold inviolate are, State's Rights, Judicial restraint, Original intent, and the primacy of the secular Constitution over his own, or anyone's religious tenets.

In his dissent in this case he managed to trash every one of these.  And he did it with his characteristic brio, wit and apparent erudition that left the pundocracy stunned and silent.

He voted to overrule this law based on the triviality of the federal regulation on the drugs used to end the suffering individual's life.  While the decision confirming the validity of the law was thirteen pages, His dissent, which was joined by Thomas and Roberts is 25 pages of unreadable casuistry (pp 34-64 of pdf link above) that boils down to this:

"[T]he overwhelming weight of authority in judicial decisions, the past and present policies of nearly all of the States and of the Federal
Government, and the clear, firm and unequivocalviews of the leading associations within the American medical and nursing professions, establish that assisting in suicide . . . is not a legitimate medical purpose."

He would be correct if a single doctor, or even a hospital had implemented this policy, it would have been illegal.  But, as the majority of the court affirmed, this law was decided by a sovereign state of the union, by not one, but two referendums; and by this process, exactly what he says is the appropriate way to reflect the changing values of a society, the "weight of authority" he cited was negated.

And with the very argument that he makes that use of life ending drugs is not a legitimate medical use, he would, of course, be logically compelled to end lethal injections as a capital punishment.  But, I'm sure another 35 pages of unreadable argumentation would get around that little inconsistency.  

So, there is every reason to believe that Antonin Scalia, who wields his erudition as a rapier to advance his political, and religious values, is not the delightful impish persona he presents to the world.  

And with confirmation of a single new Republican Justice, this man whose bizarre dissents had been a source of amusement, will become the leader of a majority to transform the face of American Jurisprudence.