In an article titled “Original Sin: Scalia Unplugged” and subtitled “Supreme Court Justice Uses the Language of Sin to Describe His Ideological Opponents,” CBS News’s legal analyst Andrew Cohen tells readers that in Justice Scalia’s recent interview series with NRO’s Peter Robinson, the “deeply devout ideologue … consistently evoked the religious notion of sinful temptation to describe how so many of the rest of us have come to believe otherwise”; responded to one question “with all the drama of a television preacher”; at one point “went on, more sermon than statement”; revealed how his “legal philosophies and tactics are dictated by his religious fervor”; and “is still a true believer in ‘original intent’ because it’s in his religious, faithful, prayerful nature to believe in things he cannot know.”
What is really amazing about all this is that while Cohen features many Scalia quotes from the interviews, not a single one supports any of those propositions. At one point, Cohen quotes the single word “temptation”, but given that then-agnostic Robert H. Bork titled his critique of living-constitutionalism The Tempting of America, and given the fact that “temptation” has widespread secular meaning, that single word can hardly justify Cohen’s jeremiad. Now, of course, it’s possible that Scalia used lots of religious metaphors or language that Cohen just didn’t bother quoting (since in many liberal eyes no attack on Scalia need be accompanied by actual evidence). I haven’t watched the interview series myself, so I’ll ask Matt, who has, to weigh in.
Cohen also repeatedly charges or insinuates that Scalia believes that Brown v. Board of Education was wrongly decided:
In Scalia’s cloistered world, the judges, lawyers, and politicians who have enabled the Constitution’s scripture to be interpreted broadly enough to be used to try to erase segregation or discrimination or prisoner abuse, or to try to protect and expand privacy rights, are really just weak sinners who couldn’t resist the urge to meddle. Adam bit the apple. The Supreme Court desegregated schools. Both failed miserably in Justice Scalia’s eyes.…
Scalia is right. It is harder now than ever before to argue against support for the Supreme Court’s Brown v. Board of Education that ended legal segregation in 1954.… But what Scalia considers the legal sin of temptation towards a “living Constitution”-what he mocks as “alluring” but not legally legitimate– most of the rest of us proudly consider societal advancement.…
Who among us wants Jim Crow to come back to America? … Would these developments have occurred anyway without court intervention or stimulus? Perhaps. Would they have occurred when they did without judges? Absolutely not. Are we better off for it? Scalia clearly doesn’t think so.
Never mind that Margaret Talbot’s 2005 profile of Scalia in the New Yorker states that “Scalia says that he would have voted with the majority in Brown” (even as Talbot argues, wrongly (as I discuss here), that “it’s hard to see an originalist justification” for Brown).
And never mind, more broadly, that any originalist would readily concede that non-originalist rulings can bring about welcome results. The question for an originalist is instead whether such rulings are legitimate in the system of representative government that the Constitution creates and gives broad play to. That’s a question Cohen has evident contempt for, since originalism “exalts politicians [read: who answer to yahoo citizens] at the expense of judges,” and an unbounded judicial role is necessary to ensure the results he wants.
Cohen’s demonizing of Scalia is replete with other errors, from his confusing “original intent” with “original meaning,” to his belief that there has been some significant “rollback of Warren Court-era rights,” to his assertion that originalists have “faith in the omniscience of the Constitution’s founders.” No, what originalists recognize is that the Framers had the modesty not to try to answer all questions for all time but instead sought to set up a system of government in which citizens could determine and revise policy. We don’t look to some non-existent “omniscience of the Constitution’s founders” to try to determine which policy decision among the available choices ought to be made. We look to the original public meaning of the Constitution’s text (including its amendments) to determine which choices are out of bounds.