The Bryan Fischer Award is given to those who display a staggering lack of self-awareness and who accuse their opponents of their own worst attributes. Justice Scalia has long displayed this attribute, often accusing the liberals on the court of doing the very things he does routinely. Here’s his most recent example:
U.S. Supreme Court Justice Antonin Scalia says a key part of interpreting the law properly is reaching decisions even when they contradict one’s beliefs.
“The judge who always likes the results he reaches is a bad judge,” he told an audience Monday evening at Southern Methodist University.
But how else can you explain Scalia’s ruling in the health care reform case last year, if not by him straining to reach the result he wanted? He flatly contradicted his own previous rulings. In 2005, in Raich v Gonzales, he agreed that the interstate commerce clause gave Congress the authority to regulate conduct that was neither interstate nor commerce (growing medical marijuana for one’s own use, which is legal in California where the plaintiff lives) because it might somehow have some indirect effect on interstate commerce.
In the health care reform case, he said that the interstate commerce clause did not give Congress the power to regulate participation in the insurance market, which is clearly both interstate and commerce. And he even announced that he had changed his mind on what the commerce clause allowed before the ruling came down, conveniently so he could reach the result he wanted.
And let me point out another inconsistency. Scalia is forever preaching the virtues of judicial restraint, that judges should rule only on the particulars of the case in front of them and not overstep their authority. Anything else would be “legislating from the bench.” And yet in Citizens United, he and the other conservatives on the court went far beyond what the petitioners to the court asked them to do. The petitioners in the case, Citizens United, only asked the court to rule that the McCain-Feingold law didn’t apply to non-profit corporations or didn’t apply to documentaries. The five conservatives on the court, four of which claim to be advocates of judicial restraint, decided that they wanted to overturn most of the law and reverse a century of precedent instead. In fact, they ordered that the case be reargued — an incredibly rare thing — so they could justify going way beyond what the attorneys argued.