Nel's New Day

March 26, 2013

Scalia Needs to Resign

In the past, no one knew how many of the Supreme Court justices would vote in many decisions. They didn’t even consistently follow follows the politics of the presidents who appointed them. For example, the progressive ruling on Roe v. Wade to legalize abortion in the United States was supported by justices appointed by Richard Nixon.

For the past few decades, however, SCOTUS decisions have rarely been surprising. Perhaps now people can more accurately guess who justices will vote on almost any issues because of the rapid increase of communication about justices’ backgrounds and perspectives that contributes general understanding about their opinions or separate takes on constitutional issues. Or maybe the lines are so delineated that people can guess the decisions.

This year, people interested in the marriage equality are wondering how several justices will rule on the two cases being heard today and tomorrow, one regarding Proposition 8 in California and and the other DOMA (Defense of Marriage).  Both Prop 8 and DOMA ban same-sex marriage. Six justices are in play for the decision, which will probably be issued in June. Justice Samuel Alito is almost certainly a vote for the status quo of no marriage equality, but there is no question about two justices, Clarence Thomas and Antonin Scalia.

Scalia has been more open than any other justice in his opposition to marriage equality. Some of his offensive comments have been made in connection with earlier cases regarding homosexuality.

scalia

In response to Romer v. Evans when SCOTUS held that Colorado could not have a constitutional amendment motivated completely by animus towards LGBT people, he said, “I had thought that one could consider certain conduct reprehensible–murder, for example, or polygamy, or cruelty to animals–and could exhibit even ‘animus’ toward such conduct.” He also said that giving LGBT people second-class status is like any other law “disfavoring certain conduct,” such laws disfavoring “drug addicts, or smokers, or gun owners, or motorcyclists.”

In Lawrence v. Texas, Scalia agreed that an outright ban on “sodomy” “undoubtedly imposes constraints on liberty,” but “so do laws prohibiting prostitution” or “recreational use of heroin.” Also in rejecting the Lawrence majority’s conclusion that private sexuality between consenting adults receives “substantial protection” under the Constitution, he responded “[s]tates continue to prosecute all sorts of crimes by adults ‘in matters pertaining to sex’: prostitution, adult incest, adultery, obscenity, and child pornography.” Later in his decision, he compared gay sex to bestiality.

Scalia also suggested that the bond between two men or two women in a committed relationship is no greater than the bond between two “roommates.” After all animosity, he concluded his Lawrence dissent with this assertion: “Let me be clear that I have nothing against homosexuals.”

One of Scalia’s arguments when he wrote the minority dissent for the 6-3 decision in Lawrence, was that this case set the scene for legalized marriage equality. “Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned,” Scalia wrote.

Justice Anthony Kennedy’s majority opinion said the Court’s ruling against anti-sodomy laws “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”

Scalia’s retort: “Do not believe it.”

“This case ‘does not involve’ the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court,” he wrote.

The Reagan-appointed justice accused the majority on the Court of having “taken sides in the culture war” and having signed on to the “homosexual agenda.”

Although it’s been years since Scalia equated laws banning sodomy with those barring bestiality and murder, he still supports this position. Speaking at Princeton University late last year, he explained his statement by saying, “I don’t think it’s necessary, but I think it’s effective.” He also repeated his earlier argument: “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against these other things?” 

Earlier last year, he again compared homosexuality to abortion and murder. At a speech before an audience at the American Enterprise Institute in Washington, D.C. last October, he said, “The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.”

As Bill Press wrote, there was a time when Supreme Court justices were “seen and not heard,” but now a few of them are “spouting off all the time.” He added that it is “pretty scary to have someone like this on the Supreme Court” and that Chief Justice John Roberts should force Scalia to recuse himself from the two marriage equality cases facing the Supreme Court.

Yet Scalia claimed at the Southern Methodist University earlier this year that he never expressed personal views on gay marriage in public or in his rulings. He also said that a crucial part of his post as Supreme Court justice is reaching decisions, even if they contradict one’s personal beliefs. After SMU professor Bryan A. Garner pointed out that he and Scalia had differing opinions on some issues such as marriage equality and gun control, Scalia retorted, “I haven’t expressed my views on either of those. You’re a bleeding heart.”

Scalia has admitted to a fear of and possible loathing for gays and lesbians but insisted in a Fox News interview that he leaves personal feelings at the door of the courtroom . . . or possibly the university lecture hall.

Because Scalia believes that the U.S. Constitution is not a living document, that it’s “dead, dead, dead,” he is bound to vote against marriage equality because gay rights are not specifically protected by that document, drafted in the eighteenth century.

As a Supreme Court justice, Scalia isn’t legally bound by the rules of judicial conduct that apply to judges in all other U.S. courts. He has the legal—if not ethical—right to say anything he wants regarding cases before the court. He doesn’t have to obey the rules of conduct that require judges to avoid the appearance of impropriety, defined as “when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s … impartiality … is impaired.”

The only way that Scalia can be removed from the Supreme Court bench is for the House of Representatives to indict him for “high crimes and misdemeanors” and the Senate to convict him of such lack of “good behavior.” Technically, Scalia has done nothing illegal; he just behaves in an unethical manner. Only one Supreme Court justice has been impeached, Samuel Chase, and that was over 200 years ago.  Although the House indicted him, the Senate found him not guilty.

When Scalia became a judge, he said that he would retire at the age of 65 because that was the age necessary for full salary in retirement. He loves the power and won’t quit, but it’s far past time for the 77-year-old justice to hang up his robe.

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