Scalia’s Obvious Inconsistencies

Scalia’s Obvious Inconsistencies March 4, 2013

Justice Scalia is taking a lot of heat for saying, during the oral argument in the case challenging Section 5 of the Voting Rights Act, that the act represented the “perpetuation of racial entitlement.” But I want to look at two other statements he made during that argument and show why they contradict many other statements he’s made.

One thing he said was this:

“The concern here is this is not the kind of question you can leave to Congress.”

Really? It’s not? In the past, Scalia has waxed quite eloquent about judicial restraint, arguing that judges should show deference to the democratic process. Anything else, conservatives claim, is “legislating from the bench” by “unelected judges.” But he throws that deference out instantaneously the moment he disagrees with Congress. All the stranger in this case, where the Constitution explicitly grants Congress the power to protect the right to vote for racial minorities. Amendment 15 says:

1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

2. The Congress shall have power to enforce this article by appropriate legislation.

So much for originalism and textualism, eh? And then he actually cited foreign law! When someone noted that the law being challenged was passed 98-0 by the Senate (the same vote by which he was confirmed for his job, by the way), Scalia said:

“The Israeli supreme court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there.”

Leaving aside the irrational nature of that claim (he surely would not accept the premise that any time the Supreme Court agrees on an issue 9-0, “there must be something wrong there”), he’s doing the very thing that he and his fellow conservatives have screamed bloody murder about — cited foreign law! So I’m sure we’ll be seeing the right wing pundits express outrage over this, right? Yeah, not a chance. It’s only wrong when it’s done to support something they don’t like.

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  • cjtotalbro

    Well it’s science fact that anything Israel does is never wrong. Don’t forget that.

  • “So much for originalism and textualism, eh?”

    He’s still those! You’re forgetting that the Founding Fathers meant exactly what Scalia wants them to have meant. They agree on everything, even when things change; even when those changes conflict with their earlier agreeing on everything. They’re like two peas in a pod.

  • dickspringer

    Antonin Scalia should review the debates over immigration laws back in the early 1920′s. The laws that were adopted were designed to keep people like Scalia out. They established large quotas for people from the British Isles and Germany and small quotas for southern and eastern Europe.

  • When pronouncing death the Sanhedrin, of course, left no stone unturned.

  • Yes, this statement of Scalia’s was breathtaking for its inconsistency with his usual judicial philosophy. He loves legislatures, except when they vote 98-0 for a bill he doesn’t like. And he cites a foreign court to boot!

    Scalia has tipped his hand here. Like many right-wingers, he doesn’t like democracy except when democracy has the sense to agree with what he says.

    It would be fitting if the man who put George W. Bush in the White House, and thus doomed hundreds of thousands of Iraqis, somehow got his deserved comeuppance for his utter collapse of coherence here. His over-inflated reputation for “brilliance” really deserves to be scuttled, and his hackery should be exposed for what it is.

  • doublereed

    By textualist and originalist, I’m pretty sure he means that he doesn’t recognize amendments after the 12th.

  • Michael Heath

    Here’s a hero* of mine, Linda Greenhouse, on the VRA: . She wrote this prior to arguments, but it reveals just how hypocritical Scalia is when it comes to what the Constitution actually says, it’s plain meaning**, and what Congress has done in the past regarding the VRA.

    *slc1 repeatedly describes some people as heros of mine. I don’t remember him ever doing that honestly, not even once. So I thought I’d refer to someone who actually is one of my heroes. Where Greenhouse also delivers a devastating argument relative to the verbal statements by Justices Scalia and Roberts that took place recently when court was in session and hearing the VRA challenge.

    **Which is especially relevant when referring to Scalia because he self-identifies as a textualist, aka known as an original meaning originalist. Except when he’s not when the facts in the case are inconvenient to some combination of his conservative ideology and partisan political agenda.

  • addiepray

    I don’t think the Sanhedrin counts as a foreign court. It’s an ancient Israeli/Biblical court, which means that it’s indistinguishable from our Founding Fathers.

  • When Scalia says originalism, what he really means is “whatever supports the rightwing ideology.”

    But originalism is a terrible judicial philosophy even if he were consistent about it. It treats the Founders as infallible gods and that we should treat our society as if it were frozen in the 1780s. Take the idea of public hangings. That was a common method of execution in their day, so they obviously did not consider it a cruel and unusual punishment. Can we say that about our society* today.

    *Texas nothwithstanding

  • jeevmon

    d.c. wilson – Scalia would say that public hangings are A-OK for that exact reason.

  • davefitz

    Curse the rotting bones of Reagan for foisting this ass-hat Scalia on us.

  • D. C. Sessions

    The original meaning of “to bear arms” was also muzzle-loading single-shot black-powder flintlocks.

    Which is one of the cases where Scalia himself has said that originalism doesn’t work (like all other cases where it doesn’t get his desired result.)

  • Judging by the quotes offered here, it looks like Scalia has already pretty much pre-judged this case.

  • abb3w


    Scalia has tipped his hand here. Like many right-wingers, he doesn’t like democracy except when democracy has the sense to agree with what he says.

    Maybe this is just lazy “Hedgehog” thinking on my part, but Scalia’s seems very much like the sort of reaction I’d expect from prejudice rooted in high-SDO. Anyone who has trouble voting these days is clearly just too lazy to go through the steps he personally finds so simple, easy, and unburdensome; how dare the federal legislature take steps to keep states from trying to insure the wrong sort of people don’t vote.

  • busterggi

    I’ve run into this elsewhere while debating theocrats – its called ‘progressive relevation’ and allows them to contradict themselves constantly while claiming never to have been wrong.

  • Crip Dyke, MQ, Right Reverend Feminist FuckToy of Death & Her Handmaiden


    I saw a headline about “Scalia’s Obvious Inconsistencies”…

    …and then I saw a finite number of paragraphs in the post’s text.

    What gives?

  • Michael Heath

    rickdesper writes:

    It would be fitting if the man who put George W. Bush in the White House

    True but J. Scalia’s lack of character was already revealed by the time of that court case. The real disappointment was Sandra Day O’Conner. She put her personal interest ahead of the country’s which resulted in her siding with the other conservatives. I.e., she wanted to retire in the next term given her increasing obligations to her ill husband, wanted a Republican to be office to nominate her replacement where she assumed, wrongly, that Bush was a center-right moderate wouldn’t replace her with some just like her. Please note these motivations have nothing to do with the merits of the side in the case she took.

  • drr1

    I’ve read the transcript a couple of times, and I’ve listened to the oral argument on C-SPAN. Justice Scalia’s comments are wrong on so many accounts – textually, structurally, historically, as a matter of precedent – that I can’t even find a charitable way to call them wrong. He’s just mailing it in at this point, filling a seat until the next Republican president gets elected. Sad, both for the Court and the country.

  • fishnguy

    Scalia is just a troll. Spouting off to see what effect his “musings” will stir up. Too bad he and his clone Clarence Thomas are not up to the positions that they hold. A sad state of affairs to say the least.

  • yoav

    “The Israeli supreme court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there.”

    Let’s ignore for a second the fact Scalia is referring to a body that ceased to exist 2000 years ago, his quote is not even right for that. The closest thing I know of is a saying that a Sanhedrin which passed a death penalty once in 7 years (or 70 years according to other opinion), is considered lethal, that is too willing to sentence to death.

  • helenaconstantine

    And don;t forget that the Sanhedrin turned Jesus over to Pilate and also voted to execute his brother James. Does she support that too?

  • lpetrich

    Someone ought to ask him what he thinks about colonial-era laws about Catholics. In most of them, Catholics were not allowed to hold public office, meaning that they would not have allowed him to be a judge, let alone the highest-court judge. Several colonies did not even allow Catholics to vote.

  • baal

    “So much for originalism and textualism, eh?”

    I’m pretty sure Scalia and other ‘originalists’ mean the original constitution as enacted without amendments. I’m not sure he’d even respect the 13th or section 2 of the 14th if relevant cases came up. Sadly, Thomas would still likely stick with him.

  • Jeffrey Toobin was on “Fresh Air” this noontime and said that Scalia WAS a brilliant legal mind (a position with which I heartily disagree) but that what he does and says now is an embarassment to both him and the SCotUS–he will get no argument from me on that.

    Scalia sold his soul years ago.

    Toobin also said that Sandra Day O’Connor regrets her decision to vote with the majority on Bush v Gore. Terry Gross said that O’Connor has refuted that characterization of her position on the vote. Toobin then said, basically, “Yeah, well…”., you could hear his eyes rolling.