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« The Case Against John Bolton: Becoming Absurd. | WILLisms.com | Should We Stay Or Should We Go, Now? »

Supreme Court Justice Antonin Scalia: Not Afraid Of Intellectual Combat.

The Supreme Court. It's a nice gig. Great benefits. Great job security. Great supreme authority over what is Constitutional. All the things one looks for in a career.

Few Justices are what we might call "public figures."

The oral arguments before the Justices remain camera-free, so few Americans would even recognize them walking down the street.

The exception there might be Ruth Bader Ginsburg, the ultimate in black-robed babealiciousness (that's a joke) (or is it?):


The job of Supreme Court Justice is the ultimate tenure program. Other than impeachment, there is really no accountability to the democratic process once in the robe, thus no reason to pander to the whims of democracy and, more sinister, the lynch-mob tyranny of the majority. This has the potential for abuse, however, as these Philosopher-Kings carry biases and motives into the job.

Professor Bainbridge argues that until judges get out of politics, judicial independence from politics is absurd:

The idea that Supreme Court justices or any other judges should be immune from political criticism - or even political retribution - is absurd given the extent to which those same judges have intruded themselves into the political domain by Constitutionalizing the culture wars.

A certain rule-by-edict judicial activism often rears its head in the judiciary, but ultimately the Supreme Court is a crucial cog in the system of checks and balances we enjoy in America.

Accordingly, few Justices feel compelled to justify themselves. Few engage in public discourse. Few do battle intellectually. Many hide behind "judicial independence."

But not Antonin Scalia. Supreme Court Justices typically shy away from public forums with open question sessions, and a recent question asked of Scalia underscores why.


The New York Post notes this bit of tackiness that has likely made the perpetrator a legend in his own mind:

Antonin Scalia spoke Tuesday night at NYU's Vanderbilt Hall, "The room was packed with some 300 students and there were many protesters outside because of Scalia's vitriolic dissent last year in the case that overturned the Texas law against gay sex," our source reports. "One gay student asked whether government had any business enacting and enforcing laws against consensual sodomy. Following Scalia's answer, the student asked a follow-up: 'Do you sodomize your wife?' The audience was shocked, especially since Mrs. Scalia [Maureen] was in attendance. The justice replied that the question was unworthy of an answer."

The student clearly crossed the line from civil discourse into tackiness; had he not asked the follow-up question, however, it is unlikely anyone would have taken note of his point. Still, the question is a perfect example of why many judges refuse to go on record in the public square, other than through their decisions.

Scalia, both Constitutionally and by tradition, does not have to engage in these kinds of forums, but he does, because he appreciates the intellectual back-and-forth. He also believes the judiciary should answer to the people, at some level, and justices should not make law from the bench (which was the underlying point of Scalia's dissent in Lawrence v. Texas). Bravo to Scalia for taking the heat and enduring the tacky questions, all for the principle of democratic accountability.

Posted by Will Franklin · 18 April 2005 05:29 PM


Did you say babe Ruth... HA HA!

Posted by: Zsa Zsa at April 18, 2005 05:40 PM

I'm not sure that the reason that the reason most Justices avoid discussing constitutional issues or rulings in public is out of fear of being called a sodomite.

Most likely it's because they don't want to preclude themselves from hearing a case by publicly expressing a view which would give advocates ammunition to argue for their recusal, based on prejudicial political beliefs and statements.

The one thing that you can count on is institutions acting in such a way as to increase their authority or power. "Independent" or not, the Judiciary is no exception. That's why, even under Rehnquist's federalism, the Supreme Court doesn't limit its scope of action. It's just not in their institutional interest to comment publicly and, thereby, limit their power.

Posted by: Andrew at April 18, 2005 06:29 PM

That is some bad bade Ruth picture you found there WILLisms.com !! Where do you find such great pictures?... I vote Ruth is a Bad Babe on WILLisms.

Posted by: Zsa Zsa at April 18, 2005 08:09 PM

How will this be taken on the babe theory for WILLisms.com? Is Ruth a Babe or is she a babe not?

Posted by: kelly at April 18, 2005 08:46 PM