That’s my point. Judicial activism is what judges do. They rule on questions where the answer is not obvious from the text of the law.
What annoys me is conservatives want to claim they’re doing something different from what liberals are doing. Scalia is notorious for this; he’ll never admit he’s just legislating his opinions into law. He refuses to recognize the legitimacy of any authority that doesn’t agree with his views - even that of the Supreme Court.
I read about an argument between Rehnquist and Scalia. Both men disagree with the reasoning that had created Miranda rights. But there was a case where the issue arose and Rehnquist upheld Miranda rights. Scalia disagreed and was angry at Rehnquist. Rehnquist explained that while he disagreed with the fact the Miranda rights existed, they had been ruled into law by the Supreme Court and he was bound by precedent to recognize them - he was ruling on the law as it was not as he wished it was. Scalia disagreed - as far as he was concerned any law he didn’t like was wrong and he was entitled to fix it.
Scalia would never say, “…any law I don’t like…” There are plenty of times he’s supported laws he didn’t like and struck down laws he did. In fact, Ginsberg is a far more reliable trangressor in this regard; she nearly always finds a reason to vote the way she thinks things SHOULD be.
Scalia supports the law, Constitutional and statutory, as written. Those people that favor a “living Constitution,” one that “evolves” through recognizing our society’s “evolving standards,” don’t like Scalia for precisely that reason. His theory of interpretation, textualism, is straightforward, and it says that the law means what a reasonable interpretation of the text says. Period. To change the fundamental meaning or application of a law, you can’t simply decide that society has evolved and the same text now means something drastically different – you have to amend the law.
Now, that said, I grant there is an area in which Scalia will appear to encroach on that standard, and it has to do with the issue you raise above: stare decicis. If a previous Court got a matter dead wrong, what’s the correct approach? There is no clear textualist answer to this; there is something to be said for not unravelling decades of established to correct a long-ago error, when the purpose of the law is predictability. But there’s also something to be said for holding the line, and not allowing one error to multply itself through repeated affirmation.
Of course, reasonable people can disagree on where that line is, and, indeed, can disagree on even whether textualism itself is the wise approach.
But Scalia’s entire philosophy and history contradicts that picture you paint above.
The issues with a textualist approach lie in what is a “reasonable” interpretation of the text. Scalia is a much deeper thinker than a facile approach to textualism would suggest, but it does remain an issue. For example, the Eighth Amendment prohibits “cruel and unusual punishment”. Okay, a given sentence is challenged as C&UP. An originalist would ask, “What did the First Congress mean to prohibit when they passed that amendment?” An interpretive “Living Constitutionalist” would say, “What are community standards today, and what would they understand to be C&UP?” But what does a textualist interpret it to mean? And he must confront the question – does this sentence, imposed in accord with this statute, conflict with the constitutional prohibition? is the question he must answer.
Much of the Constitution is written in such broad phrases. What constitutes “equal protection of the law?” What is “due process of law?” What are “unreasonable searches and seizures”? What comprises “effective assistance of counsel”? What is “an establishment of religion”? And so on. For the textualist, stare decisisi is often the only source of the proper interpretation to place on these broadly worded phrases.
Scalia’s standard of reasonable is broad enough to cover anything he wants it to. And it’s narrow enough to exclude anything he wants it to. Sure, he never explicitly says “I will now write the law the way I think it should be” but he then goes ahead and does it. Then he goes back and finds whatever reasons he feels are needed to justify the decision he’s already made.
Scalia’s problem is that he doesn’t recognize any authority other than himself. If the President does something Scalia doesn’t agree with, then the President was wrong. If Congress passes a law Scalia doesn’t agree with, then Congress was wrong. If other Supreme Court justices render a decision Scalia doesn’t agree with, then the Supreme Court was wrong. If the majority of American citizens agree on an issue but Scalia doesn’t agree with it, then the American people are wrong. I’m pretty sure if God appeared as burning bush and issued a new commandment that Scalia didn’t agree with, Scalia would feel justified in overruling God.
So tell me something, then. If you’re correct, and if the view of Scalia as a solid conservative is correct, we’d expect to see Scalia joining the liberal justices on issues that fall into “Left” and “Right” divisions pretty infrequently, yes?
But in fact, Scalia crosses that ideological division line much more than, say, Ginsberg does.
How did you get this out of what I wrote? Did I say Scalia was a solid conservative? The example I gave was of Scalia arguing with Rehnquist. Did I say he was a follower of any movement? My whole point was how he refuses to follow anyone’s lead.
Which, given the current Court, is greatly to his credit. Scalia is by far the most honest of the entire SCotUS bench - perhaps the onyl honest man in government. To accuse him of willing into law whatever he pleases pretty much falls into outright slander. It has no basis, and is a vile and malicious load of utter bullshit. If you dogmatic Lefty buffoons ever bothered to listen to him, you might know that he absolutely follows his principles even if they take him to an answer he does not personally like, and has delivered opinions on that basis time and time again. But hey, why bother with all that hard thinking when you can insult him?
Your point suggests he follows his own lead based on what results he wants to achieve.
The reality is he follows his own lead as far as how to analyze the law, and phlegmatically accepts it when that method leads him to a result he doesn’t like.
He is, in other words, like an umpire: the rules of the game are determined in advanced, and then applied even-handedly no matter which team they happen to benefit. The umpire doesn’t have a voice in changing the rules of a sport, and certainly doesn’t have a voice in which team “should” win a particular game. His job is to apply the rules as written.
Ginsburg, on the other hand, has leagues she likes and leagues she doesn’t like. And when teams from those leagues play, she’ll change her approach to the rules to favor the teams from her leagues.
There are people who feel that this second approach is in fact the preferred one for a Supreme Court justice; that they should be active participants in reshaping substantive law. I (and Scalia) disagree. The law should be made by the legislature, executed by the Executuve, and interpreted by the judiciary to give effect to the legilature’s intent. The judiciary’s own desire for a particular policy is utterly irrelevant.
Substituting insults for reasoning is apparently a trait not limited to just Lefty buffoons.
Exactly. This is what I feel Scalia does. (Not that I feel he’s unique among this. I agree other Justices have done it as well.) The reason I specified Scalia for doing it, is because he’s so forthright in his denunciations over other people doing this while doing it himself.
We obviously disagree on this issue. You feel Scalia follows the law to an unpredetermined destination. I feel Scalia plans out a route that will get him to the destination he wants to arrive at. His textualism is just a tool for doing this. Scalia claims he is just following the intent of the text but he himself is the person who is deciding what that intent is as he follows it. This allows him to go where he wishs while claiming he’s being guided by others.
A claim that brings us back to the point I made above: Scalia “crosses the line” and votes with the ‘liberal’ judges much more frequently than any of the ‘liberal’ judges do. If it were as you say, we wouldn’t expect to see that. There are several Scalia opinions in which he expresses personal distaste for the conclusion the law compels and that he is delivering. I never saw such a statement from Ginsburg.
These illustrations demolish your claim. You may certainly hang your hat on the idea that a judge shouldn’t be a referee but something more; reasonable people may disagree on this point. You cannot credibly claim that Scalia doesn’t embrace the referee-only role.
I don’t see why you keep talking about whether or not Scalia is a conservative or a liberal or something in between - what does that have to do with whether or not he is an activist? And why do you keep bringing up Ginsberg? I’ll freely agree Ginsberg is an activist.
And I certainly can say that Scalia does not act as a neutral referee. I’ve read several of Scalia’s decisions. He frequently interjects his own opinions into them - but he doesn’t present them as his opinions. He’ll just write something like “It’s obvious the intent of this law is this”. Now if you happen to agree with Scalia’s opinions then you probably agree that what he said is the obvious intent of the law - so you wouldn’t see what he wrote as a statement of fact rather than an opinion. But if you disagree with Scalia, then it’s glaringly obvious what he’s presenting as facts are just his opinions.
If it were true that Scalia is just a neutral observer who is presenting factual points of law, why is he so often in opposition to other justices? Is Scalia the only person who can see the facts as they exist? Or is it perhaps that Scalia’s facts are not actually facts - they are just his opinions and are no more objectively true than any other justice’s opinions. Sure he’s entitled to rule based on his opinions - he’s a Supreme Court Justice and that’s his job. But he shouldn’t be claiming that his opinions are somehow truer than anyone else’s and that when they disagree with him they are disagreeing with truth itself.
So if we were ranking the justices by the frequency with which they were in the minority, you’re saying you’d expect Scalia to lead or be high on that list?