Thursday, December 3, 2015

Justice Scalia and Ed Whelan Proud to Stand on the Wrong Side of History

No they are not the same as child molesters

Yesterday, Judge Richard Posner and Eric Segall lambasted Justice Scalia for his laughable assertions on gay marriage. They pointed out some of the ridiculous inconsistencies in his jurisprudence, and his hateful assertions against gay men and women. The article wasn't completely fair to Justice Scalia, but it was mostly right.

This didn't sit too well with National Review's Ed Whelan, who attempted a takedown of the Posner/Segall piece. It's pretty weak.

1. First, Whelan attacks Posner/Segall for claiming that Justice Scalia believes "that the Supreme Court should get out of the business of enforcing the Constitution altogether." Whelan says this is ridiculous: "no competent legal mind could fairly extract from Scalia’s dissent the proposition that Posner derives and attacks."

Both are partially right here. Posner/Segall are correct that extrapolating some of Scalia's statements could lead to the end of judicial review. Whelan is on firm ground when he says in the context of the whole dissent, its clear Scalia wasn't calling for overturning Marbury v. Madison. But both fail to capture Justice Scalia's utter hypocrisy on the subject.

In Obergefell, he says:

 “To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”

He adds:

“A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

OK Justice Scalia, I get it. The patrician court should stay out people's business. Let democracy decide the issue. To do otherwise, would be "pure applesauce."

But then in oral arguments of the Shelby County voting right case, Justice Scalia stated:

"Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. I don’t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution."

Justice Scalia then promptly voted to strike down the Voting Right Act. Well, at least that was a close vote in the Senate which Justice Scalia was overruling, only 98-0.

Basically, Justice Scalia is pro democracy when the majority wants to take away rights and against it when the populace wants to guarantee them. Got it.

2. Later on Whelan attempts to defend the indefensible, i.e. Scalia's remark comparing the rights of gays to child molesters. Posner/Segall quote Scalia as saying:

"There is no principled basis for distinguishing child molesters from homosexuals, since both are minorities and, further, that the protection of minorities should be the responsibility of legislatures, not courts. After all, he [Scalia] remarked sarcastically, child abusers are also a “deserving minority,” and added, “nobody loves them.”

Whelan should have just conceded this one, instead he says.

"Posner contends that Scalia recently “argued that there is no principled basis for distinguishing child molesters from homosexuals” as minorities deserving of protection. But what Posner elides is that Scalia actually argued that there is no principled basis in the Constitution for courts to confer rights on the latter but not the former. That’s exactly the point that he made in his 2003 dissent in Lawrence v. Texas."

Well, there is this thing called the equal protection clause (no state "shall deny to any person within its jurisdiction the equal protection of the laws.") But let's give him the benefit of the doubt for one moment. Scalia/Whelan would argue that, in the Constitution, child molesters are just as deserving of equal protection as gay men and women. Hey, say Scalia/Whelan, if gays can choose their sex partners why can't child molesters?

Um, because children can't consent to sex with an adult. So children's equal protection/privileges and immunities/liberty are violated. A loving gay couple having sex face no such consent issues. This should be obvious.

If Justice Scalia wants to continue comparing gay and lesbian men and women to child molesters and Ed Whelan wants to defend such remarks, they may choose to do so. But history will judge them.

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