January 6, 2011

The media misses the point yet again with Justice Scalia

By The media misses the point yet again with Justice Scalia

Author:  Damien M. Schiff

The brouhaha over Justice Antonin Scalia's remarks in California Lawyer Magazine about the protections afforded (or not) to various minority groups under the Constitution has in large measure missed the important take-away.  Here you have a Supreme Court justice articulating a version of originalism that is intellectually rigorous (although obviously not without shortcomings) and neutral, and one espoused (in one version or another) by many leading minds in the legal academy.  It just so happens that the application of this interpretive system produces results that a majority of the media (and the American people) find distasteful.

Respondeo dicendum, "Who cares?"  Do the critics of Justice Scalia (see, e.g., here, here, here, and here) think that Brown v. Board of Education went over well with popular opinion?  What about Roe v. Wade?  Of course not, yet presumably these same critics would not question the outcome or legal reasoning of these two decisions simply because large sectors of the public found them at the time (or even today) to be unpalatable.

Which leads to my main point:  whatever one's legal or political stripe, it seems to me that one should want precisely the type of judge that Scalia is offering himself to be (whether in fact he is such a judge is, of course, irrelevant), i.e., one who tells you very plainly how he decides cases and why, and, just as important, one who will not change his methodology simply because the public doesn't like some of the results.  Last time I checked, such an approach is called "fairness," and it's a pretty good thing to have in a judge.

What to read next