Monday Equals US Supreme Court Justice Weirdness

Or: What's Wrong With This Picture?


This morning, NPR aired an interview between its chief legal affairs correspondent, Nina Totenberg, and US Supreme Court Justice Antonin Scalia. There was a major disconnect during the course of their conversation that I wish Ms. Totenberg had explored with the frequently testy Associate Justice.

Scalia is the poster boy for "strict construction," meaning that in his opinion, if it was good enough for the Founders in 1789, it's good enough for us today. For him, as he says flat out, our Constitution is a "dead document." He did not disagree when Ms. Totenberg asked him if putting people in stocks in the town square would pass Constitutional muster today, for example.

Yet in his own life, he has acknowledged that the tenor of modern times ("the Space Age," as he noted his father would call it) has caused him to alter his judicial reticence to speaking in public, giving interviews, and the like.

Of course, he still won't speak directly about specific cases the Court is considering; he will express his opinion on prior Court rulings and specific Court opinions, by himself or his fellows, whether they agree or disagree.

If the times have changed so much that he has to modify his public behavior as a Justice, why haven't the times also changed so much that how we read the Constitution itself hasn't changed?

Those of you (if there is anyone out there, that is) who know me know that I have a bit of contempt for so-called "strict constructionists." They claim that they oppose only "judicial activism," but in fact, it's only "judicial activism" when they disagree with the results of a particular ruling. All judges and justices interpret documents, all the time. It's inherent in the nature of the job. So those who claim to believe in strict construction are hypocrites.

I hate to see real intellect go to waste, in that way or in any other. Scalia has real intellect--and a wicked wit, for which I confess to having a sneaking admiration. His often blunt opinions are refreshing to read, even when I disagree with him.

You know, when you think about it, I react the same way to religious fundamentalists the same way I do to strict constructionists, and for the same reasons. They all completely ignore Shakespeare's wisdom: "There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy."