Speaking at function on Jan. 12 Scalia told an audience that the 9th Circuit’s decision in the case was an example of a:
”new philosophy" among judges "that says, '[The Constitution] doesn't mean what Thomas Jefferson thought it meant, what the Framers thought it meant. It means what we think it ought to mean.' "I hasten to point out that Thomas Jefferson was not the chief architect of the Constitution, that accolade belongs to John Adams.
By publicly lashing out at the 9th Circuit’s decision even before the case was accepted by the Supreme Court, Scalia biased himself, almost assuring his eventual self-exile from the case. The Associate Judges judicial philosophy is well know in legal circles, but his “traditionalist” interpretation of the Constitution is not shared by enough justices on the High Court to give his opinions serious sway.
I do not hold his view of the Constitution as unswerving and not open to “reading between the lines” so to speak. The Founding Fathers, in their wisdom allowed for the amending of the Constitution recognizing that societies are not static vehicles immune to change and upheaval, both social and political. How then can the document that governs them be immutable and unyielding in its body?
Does this view make Scalia increasingly ineffective as an advocate of the Conservative cause on the Court? Some think so, among them fellow Associate Justice Ruth Bader Ginsburg, who thinks Scalia, who has become increasing belligerent in his dissents from the bench, should tone down his rhetoric in order to better get his point across. I agree, his often emotional dissents, while speaking volumes of his passion for the law, do little to advance its cause, or further the conservative agenda.
In the instant case, his removal from the bench could result in an even split of the bench, in which case the judgment of the 9th Circuit stands and the offending line goes away; an outcome I hasten to add would be contrary to how Scalia would have ruled. But in his rush to “bash” the 9th Circuit he did his own cause an injustice. Perhaps in the future the Justice should confine his remarks to the pages of an opinion.