Oh, Really?

Venerable Supreme Court Justice Anton Scalia stated, during a debate with ACLU president Nadine Strossen, that he doesn’t think federal judges should take on politically controversial issues. "On controversial issues on stuff like homosexual rights, abortion, we debate with each other and persuade each other and vote on it either through representatives or a constitutional amendment," he said.

Then, talking out of the other side of his mouth, he pointed out that because race is clearly protected under the Constitution, universities shouldn’t be allowed to use race as a determining factor in admissions.

Uh, isn’t race a politically charged issue?

Scalia, of course, is everybody’s favorite “strict constructionist,” meaning that he thinks the Constitution should be interpreted based only on its actual wording and the intent of the original writers. So that’s how he would answer my “uh” question: when it’s really in the Constitution, then it doesn’t matter whether it’s politically charged or not.

But Scalia underestimates the complexity, and the clarity, of the English language. As Strossen apparently pointed out (sorry, I’m too lazy to watch the video), Scalia’s approach would have prevented the Court from outlawing segregation in Brown v. Board of Education in 1954. That, by the way, was a unanimous decision.

My favorite quote from the debate, though, is this, aimed at the Court’s more progressive rulings in past years: "Someday, you're going to get a very conservative Supreme Court and regret that approach." Someday?

I got to see Scalia speak in a Q&A setting when I was in law school. He’s a very congenial guy, and very entertaining as a speaker. Too bad he’s such a … well, I can’t think of any wholesome words for it.