Wednesday, April 08, 2009

Law Prof On Why Frank's Attacked Scalia

Writing in the Chicago Tribune, Univ. of Wisconsin School of Law professor Ann Althouse examines Rep. Barney Frank’s latest attack on Justice Antonin Scalia and suggests what Frank’s motive is.

Althouse begins - - -

Rep. Barney Frank (D-Mass.) says that U.S. Supreme Court Justice Antonin Scalia is a "homophobe" who "makes it very clear that he's angry, frankly, about the existence of gay people."

Frank points to Scalia's dissenting opinion in Lawrence vs. Texas—a case that struck down a statute criminalizing homosexual sodomy—and accuses the justice of thinking that "it's a good idea for two consenting adults who happen to be gay to be locked up because he is so disapproving of gay people."

But Scalia has written no such thing. Either Frank is an incompetent reader or he is deliberately trying to mislead people into believing that justices vote for results in cases the way legislators vote a bill up or down.

Now, it is true that Scalia wrote a cutting dissent in Lawrence.

Scalia didn't expand his opinion with a statement of sympathy for the gay men he would have let the state imprison. But his sharp words were not aimed at those men.

Scalia made a righteous show of his dedication to a method of constitutional interpretation, following the original meaning of the constitutional text. In this analysis, any infusion of the judge's personal values is nothing but an illicit power grab.

Make no mistake: Scalia's scathing words were aimed at his colleagues on the Supreme Court. He mocks them for adopting the "law profession's anti-anti-homosexual culture." They've "taken sides in the culture war," Scalia said, instead of dutifully accepting the criminal statute that emerged from the democratic process in the state of Texas.

"Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means," Scalia wrote, refraining from saying anything about whether he wanted to see them prevail.

He merely said that—because the state may base its laws on morality—gay people will have to fight for what they want in politics, not the courts. …

If Frank's accusations inflamed you, think hard about why Frank chose to portray Scalia the way he did. I suspect Frank would like to soften us up for future judicial nominations.

Back in 2007, Barack Obama told us about "the criteria by which I'm going to be selecting my judges": "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled or old."

If Obama delivers nominees who've demonstrated their heart and empathy by reaching outcomes that accord with liberal political preferences, will liberals forget that we need to test the soundness of their legal reasoning?

If Frank succeeds in getting people to believe that judicial opinions are the kind wishes of good hearts, we will rubber-stamp these seemingly good people.

If we do that, we will have forgotten what law is, and our rights will depend on the continued beneficence of the judges we've empowered.

Althouse’s entire column’s here.

Hat tip:


Anonymous said...

Barney Frank is just one (Maxine Waters,Charley Rangel are other examples that come readily to mind)who insist that anyone who does not view things through the prism that he views life must therefore be anti gay (in his case - racist in the case of the other two). This attitude is what has made American politics and society in this country so corrosive. There is the failure to take into account that others can look at something (in Scalia's case the law) dispassionately and render a decision (as Scalia is required to do) without condemning a type of behavior (homosexuality). However, Frank desires to confuse the issue because he is trying to play to an audience who is not really interested in the law at all.
What Barney Frank wants to do in the privacy of his bedroom is his business but it does not need to be trumpeted (and I feel the same way about heterosexual activity) in the public's face and when the public objects - play the homophobe card. Marriage has been defined as the union of a man and woman since time immemorial. If two people of the same sex want to live together - fine - but it is not marriage and never will be.

Saqib Ali said...

In recent interview with Hoover Institution, elaborating on his earlier statement that “devotees of The Living Constitution do not seek to facilitate social change but to prevent it” (Scalia & Gutmann, 1998), Justice Scalia said:

"To make things change you don’t need a constitution. The function of a Constitution is to rigidify, to ossify, NOT to facilitate change. You want change? All you need is a legislature and a ballot box. Things will change as fast as you like. My Constitution, very flexible changing. You want right to abortion? Persuade your fellow citizens that it is a good idea, and pass a law. And then you find out, the results are worst than we ever thought, you can repeal the law. That’s flexibility. The reason people want the Supreme Court to declare that abortion is a constitutional right is precisely to rigidify that right, it means it sweeps across all fifty states and it is a law now and forever or until the Supreme Court changes its mind. That’s not flexibility."

"By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all." (Scalia & Gutmann, 1998)

Scalia, A., & Gutmann, A. (1998). A Matter of Interpretation: Federal Courts and the Law. Princeton University Press.