New York Magazine has an interview with Supreme Court Justice Antonin Scalia this week, and it’s a doozy.
The irascible archconservative justice is as puckish as ever as he delivers his opinions on God, the Devil, women’s rights, homosexuals and Congress. While many would like to forget or even ignore Scalia, as one of the nine justices on the Supreme Court of the United States, his is a voice that cannot be easily dismissed.
So why do I get the feeling Scalia is punking us? Here are some answers the textualist gave to reporter Jennifer Senior that are as eye-opening as they are entertaining:
1. Flogging and What’s Stupid
Scalia is an originalist in that he believes the Constitution should be interpreted in accordance with how it was originally intended. This gives Scalia some, er, interesting points of view. Take flogging:
Flogging. And what I would say now is, yes, if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional. I gave a talk once where I said they ought to pass out to all federal judges a stamp, and the stamp says–Whack! [Pounds his fist.]–STUPID BUT CONSTITUTIONAL.Whack! [Pounds again.] STUPID BUT CONSTITUTIONAL! Whack! STUPID BUT CONSTITUTIONAL … [Laughs.] And then somebody sent me one.
Perhaps we can expect Scalia’s infamous dissents to be more concise, then.
2. Ratifying a Constitutional Amendment is Too Damned Hard
When asked whether there’s anything in the Constitution he would change, the unapologetic textualist replies:
The one provision that I would amend is the amendment provision. And that was not originally a flaw. But the country has changed so much. With the divergence in size between California and Rhode Island — I figured it out once, I think if you picked the smallest number necessary for a majority in the least populous states, something like less than 2 percent of the population can prevent a constitutional amendment.
Some might argue that the high threshold for amending the Constitution is a good thing so as to provide a safeguard against any hastily arranged changes like, for instance, a federal anti-gay marriage amendment. Then again, when it comes to needing to amend the Constitution to protect women’s rights, Scalia might have a point, though I doubt he’d agree on a constitutional amendment for that particular cause. Which brings us neatly to:
3. Sex Discrimination and ‘Intelligent Reasons’ to Treat Women Differently
Anyone who has followed Justice Scalia’s commentary on sex discrimination will know he has an interesting take on the Fourteenth Amendment and how it applies when assessing discrimination against women. In the New York Mag interview, Scalia says it’s not that sex discrimination isn’t covered — “Of course it covers it!” — it’s that he believes there’s a question as to what actually constitutes discrimination:
If there’s a reasonable basis for not letting women do something — like going into combat or whatnot …
But there are some intelligent reasons to treat women differently. I don’t think anybody would deny that. And there really is no, virtually no, intelligent reason to treat people differently on the basis of their skin.
Scalia doesn’t appear to offer any “intelligent reasons.” The interview has been condensed, the NY Mag notes, so we’ll never know whether he did have something to further illuminate his dark ages point of view or whether this was a throwaway remark. He also says he’s incredibly perturbed by the coarseness of Internet and TV culture, in particular ladies (his emphasis) using the F-word. It’s a shame Scalia is so offended by this as I imagine a number of women have a few choice words for him all the same.
4. The Washington Post is ‘Shrilly’ Liberal and it Makes Scalia Mad!
Despite the Washington Post’s highly conservative (so as to almost be regressive) comments section, Scalia feels its general approach has just gone “too far” to the Left (emphasis in original):
It was the treatment of almost any conservative issue. It was slanted and often nasty. And, you know, why should I get upset every morning? I don’t think I’m the only one. I think they lost subscriptions partly because they became so shrilly, shrilly liberal.
No, Scalia isn’t the only one who thinks the Washington Post has become too liberal. Then again, some conservatives think Fox News has walked too far down the left path.
5. Scalia Suspects He Has Homosexual Friends
Asked about Pope Francis’ comments that the Church must quit its preoccupation with homosexuality and abortion, Scalia says this is a good thing. He clarifies this is no change in doctrinal position (relax everyone, homosexuality is still sinful), but that it’s time to focus on evangelizing. When pushed on the issue of homosexuality, on which Scalia has had quite a bit to say in the past, Scalia clarifies he’s not a hater. In fact:
I have friends that I know, or very much suspect, are homosexual. Everybody does.
Weird that none of them have come out to him though, isn’t it?
6. Denying Gay People Rights is Just a Matter of Democracy
Sorry, we’re going to have double up on the gay talk because Scalia has a lot to say. He clarifies that he has no animosity toward homosexuals. No, it’s simply a matter of democracy:
But that’s not saying that I personally think it’s destructive. Americans have a right to feel that way. They have a democratic right to do that, and if it is to change, it should change democratically, and not at the ukase of a Supreme Court.
Oh, and Scalia doesn’t care if he’s seen as “standing athwart” homosexual rights as a “constitutional entitlement.” After all, he is a textualist.
Next Page: The Devil is Among Us and How Will Scalia Know When it’s Time to Retire?
7. The Devil is One Sneaky Dude
On matters of religion, Scalia is not afraid to say that be believes in the Devil. It’s “basic” Catholic doctrine after all. When asked if he’s seen evidence of the Devil lately though, he has this insight:
You know, it is curious. In the Gospels, the Devil is doing all sorts of things. He’s making pigs run off cliffs, he’s possessing people and whatnot. And that doesn’t happen very much anymore. … It’s because he’s smart. … What he’s doing now is getting people not to believe in him or in God. He’s much more successful that way.
Oh, and don’t be incredulous that Scalia believes in the Devil, as interviewer Jennifer Senior apparently was. He gets offended. Most of America believes in the Devil! Jesus believed in the Devil! He’ll even tell you: ”I was offended by that. I really was.”
8. Atheism Might Be the Devil’s Work
When pointed out that Scalia’s belief that non-belief is the work of the Devil has serious implications for atheists, Scalia rallies:
I didn’t say atheists are the Devil’s work.
He appears to clarify it’s atheism and not atheists that might be one product of the machinations of the Dark Lord (my term, not his):
But it certainly favors the Devil’s desires. I mean, c’mon, that’s the explanation for why there’s not demonic possession all over the place. That always puzzled me. What happened to the Devil, you know? He used to be all over the place. He used to be all over the New Testament. … He got wilier.
Clearly the Devil will role with the times even if Scalia won’t.
9. On the Nasty Situation in Congress
It’s a nasty time. It’s a nasty time. When I was first in Washington, and even in my early years on this Court, I used to go to a lot of dinner parties at which there were people from both sides. Democrats, Republicans. Katharine Graham used to have dinner parties that really were quite representative of Washington. It doesn’t happen anymore.
Earlier in the interview, Scalia says that power is firmly invested in Congress as it is the “900-pound gorilla in Washington” and that Congress can “roll over a president” if it should so choose. He even goes so far as to say that it is Congress, not the president, who will be the source of tyranny.
Scalia isn’t directly referring to the current shutdown, but it’s difficult not to see this as a comment on the current political standoff over the Affordable Care Act.
10. Does Scalia Ever Regret His Tone? And When Will he Know When it’s Time to Retire?
The tone of Scalia’s opinions have been described in a great many ways, not all of them favorable. Does he regret that? Never.
My tone is sometimes sharp. But I think sharpness is sometimes needed to demonstrate how much of a departure I believe the thing is. Especially in my dissents.
He clarifies he’s writing dissents for law students so that they will take notice of the robust reasoning.
And lastly, on the topic of when he’ll know when it’s time to retire his answer is long but simple: when he’s no longer enjoying it.
Sadly for women’s rights, gay rights and a broad set of other constitutional questions Scalia isn’t only still enjoying his job, he says it’s getting easier.
As to the question whether Scalia is punking the American people, unfortunately he seems uncompromisingly serious.
Given that, before he retires, Scalia will likely weigh a host of legal questions like a woman’s right to access abortion services and whether there is a fundamental right to marriage equality, we might consider this interview no laughing matter at all. That said, it does offer an insight into a man that is profoundly interesting even if we find his opinions, and his power to make good on them, questionable.