Justice Antonin Scalia gave a lecture in Houston recently about Christian morality and economics and took questions from the audience. The answers to some of those questions vary from mundane to predictable to appalling. But let’s start with just plain illogical:
Q: Have you ever noticed that positions of justices on a particular subject changes or becomes more liberal the longer they stay on the bench?
A: “It’s demonstrably false. I’ve been there longer than anybody and I think I’m further from left than I was. … It is a common phenomenon.”
Uh, no. Your one example does not make it “demonstrably false” that some justices become more liberal on the court, especially on particular issues. Justice Kennedy and gay rights is an obvious example, but a general liberal drift is obvious in numerous justices over the last few decades — Earl Warren, David Souter, Harry Blackmun, John Paul Stevens and several more. Your single anecdotal example does not cancel all that out.
Q: What is the greatest miscarriage of constitutional justice during your tenure?
A: “Oh, there are many candidates. … The most disreputable area of our law is the establishment clause. (Congress shall make no law respecting the establishment of religion.) … A violation of the establishment clause that does not affect someone’s free exercise – there is no reason why you should have standing.
Wow. Seriously, just wow. Scalia calls himself a textualist, yet this argument would read the Establishment Clause out of the Constitution entirely. If you don’t have Establishment Clause standing without a Free Exercise Clause violation, then there is no purpose to that clause at all. It becomes meaningless and totally unenforceable. This is pretty much the cardinal rule of constitutional interpretation, you can’t read the language of a particular provision in such a way that it becomes superfluous and irrelevant. If you made this argument in a 2L con law class, you’d get a very low grade. And here is a justice of the Supreme Court making it. Appalling.