The late Antonin Scalia was a "good soul" personally but had a backwards, outdated "ideology," Chris Matthews asserted on his February 16 Hardball program. Of course, in the process, Matthews both confused Scalia's philosophy of legal interpretation with "ideology" and misnamed it as "originalist" when in fact Scalia repeatedly took pains to describe his philosophy as "textualism."
[Scalia's textualist approach centered on the original meaning of the words of the Constitution and/or the relevant laws under controversy in a given case, not a nebulous attempt to get into the head and discern the "original intent" of the legislators themselves.]
"Scalia is an ideologue. He's an originalist," Matthews told guest Joy-Ann Reid. "I actually personally liked the guy when I met him," Matthews added. "I liked his personality... and he had a good soul," he continued, "but, "he had a very strong ideology, a very strong one. I mean, maybe almost out of his time."
Matthews's comments came on the heels of playing a Dr. Ben Carson sound bite wherein the presidential hopeful expressed concern that President Obama could name a liberal ideologue to the Court if the Republican-majority Senate hold the line, implying that both Democrats and Republicans name ideologues to the Court and so it's an empty criticism.
Of course, judicial philosophy and ideology can often overlap, but they are distinct, and, as Scalia often made clear, his textualist philosophy mandated that he make rulings on points of law that the political side of him disdained seeing remain on the law books From Ralph Rossum's "The Textualist Jurisprudence of Justice Scalia" (emphases mine; italics added to distinguish Scalia's writing):
Scalia believes that "the rule of law is the law of rules" -- this is the title of his Oliver Wendell Holmes, Jr. Lecture delivered at Harvard Law School in 1989.[23] He argues that where the text embodies a rule, judges are simply to apply that rule as the law. Where text and tradition fail to supply a rule, there is no rule and, hence, no law for judges to apply to contradict the actions of the popular branches and, therefore, no warrant for judicial intervention. This was his argument in Romer v. Evans,[24] in which he unleashed a powerful attack on the Court for "tak[ing] sides in the culture war"[25] and invalidating Colorado's Amendment 2 denying preferential treatment to homosexuals. "Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that 'animosity' toward homosexuality is evil."[26] This was also his argument in his concurring opinion in Cruzan v. Director, Missouri Department of Health, in which the Court rejected the petitioner's contention that she had a "right to die;" Scalia wrote:
While I agree with the Court's analysis today, and therefore join in its opinion, I would have preferred that we announce, clearly and promptly, that the federal courts have no business in this field; that American law has always accorded the State the power to prevent, by force if necessary, suicide -- including suicide by refusing to take appropriate measures necessary to preserve one's life; that the point at which life becomes "worthless," and the point at which the means necessary to preserve it become "extraordinary" or "inappropriate," are neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory; and hence, that even when it is demonstrated by clear and convincing evidence that a patient no longer wishes certain measures to be taken to preserve her life, it is up to the citizens of Missouri to decide, through their elected representatives, whether that wish will be honored. It is quite impossible that those citizens will decide upon a line less lawful than the one we would choose; and it is unlikely (because we know no more about "life-and-death" than they do) that they will decide upon a line less reasonable. [27]
In A Matter of Interpretation, Justice Scalia succinctly spelled out both the origins of judicial-policy making and his reasons for rejecting it. Judicial policy-making arose, he noted, in the old common-law system in England where judges, unconstrained by statutes or a written constitution, exercised the "exhilarating" function of making law. From there, it eventually spread to modern American law schools where impressionable "law students, having drunk at this intoxicating well," come away thinking that the highest function of the judge is "devising, out of the brilliance of one's own mind, those laws that ought to govern mankind. How exciting!" (Scalia, p. 7) He noted a key problem with this approach: It is a "trend in government that has developed in recent centuries, called democracy" (Scalia, p. 9). As Scalia insisted, "It is simply not compatible with democratic theory that laws mean whatever they ought to be mean, and that unelected judges decide what that is" (Scalia, p. 22).
Scalia has castigated the Court for its contemptuous disregard of the democratic principle in several powerful dissents.
In a 2008 interview with 60 Minutes, Scalia noted that the problem, for example, with the Supreme Court's ruling in Roe v. Wade was that it short-circuited the democratic process by writing law from the bench:
"I'm surprised at how many people really, really hate you. These are some things we've been told: 'He's evil.' 'He's a Neanderthal.' 'He's going to drag us back to 1789.' They're threatened by what you represent and what you believe in," Stahl remarks.
"These are people that don't understand what my interpretive philosophy is. I'm not saying no progress. I'm saying we should progress democratically," Scalia says.
Back at the Oxford Union, Scalia told the students, "You think there ought to be a right to abortion? No problem. The Constitution says nothing about it. Create it the way most rights are created in a democratic society. Pass a law. And that law, unlike a Constitutional right to abortion created by a court can compromise. It can...I was going to say it can split the baby! I should not use... A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change."
Wanting democratic processes to dictate the writing of law? How ideological!
Here's the relevant transcript:
MSNBC
Hardball
February 16, 2016; 7:09 p.m. Easternonscreen graphic:
BREAKING NEWS
GOP: No Way Obama Should Nominate Scalia ReplacementCHRIS MATTHEWS: Well, Dr. Ben Carson was asked in a radio interview if he and his fellow Republican candidates would be saying the same thing if there was a Republican president in the White House right now. Well, here’s his very honest answer.
BEN CARSON, from WRNN-FM radio interview, via BuzzFeed: No, they wouldn’t. But then again, recognize that the two picks that the president has selected [referring to Kagan and Sotomayor] are ideologues, so there’s really no reason to believe that his next pick wouldn’t be an ideologue also.
CHRIS MATTHEWS: Let me get this straight, Joy [Reid]. Ideologues. Uh, Scalia is an ideologue. He’s an originalist. I mean I, I actually personally liked the guy when I met him. I liked his personality and who he was, and he had a good soul, but you know, he had a very strong ideology, a very strong one. I mean, maybe almost out of his time, ya know.
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