TPM Reader JM looks at Justice Scalia’s increasing indifference to hiding his judicial activism …
Searching for consistency from Justice Scalia is a sucker’s chore, but his comments today are especially gobsmacking. This is someone whose entire mission in life is to torpedo the “living Constitution” and finish off the idea that legal meanings and judicial interpretations should change over time, adjusting to changing circumstances.
By Scalia’s own logic, the Court never should have considered overturning the Voting Rights Act. It was clearly constitutional under the 15th Amendment when it first passed in 1965 - something no one on the Court even contests - so it’s clearly constitutional now. To claim otherwise, Scalia would have to don the hats of sociologist, historian, Black Studies scholar and political pundit - the kind of judicial cross-dressing for which he routinely excoriates other judges.
It’s been clear at least since the Obamacare ruling that Scalia doesn’t believe all that stuff he’s written about the Court leaving lawmaking to the lawmakers. He’d grant that Congress was right to pass Section 5 of the act in 1965, when it was irrefutably necessary to protect the right of African Americans to vote. And presumably he’d say Congress was free to renew the law - for a while. When did that constitutional freedom lapse? Scalia implies that the only person fit to judge that is Scalia, with his unique, personal insight into American culture and racial politics. He’s been checking his watch and tapping his foot for 58 years, and now he’s decided that time is up on the civil rights era.
His choicest line today may have been this: “I don’t think there is anything to be gained by any Senator to vote against continuation of this act.” Who does he think he is, Chris freaking Matthews? Since when is it a Justice’s job to divine when the people’s representatives are acting from pure motives, and when they are moved by crass “racial entitlements,” as he describes the guarantees that allowed millions of African Americans to vote for the first time? Call that what it is, but it sure as hell isn’t originalism. It’s just lawless free-styling.
Josh Marshall is editor and publisher of TalkingPointsMemo.com.