Justice Antonin Scalia has, apparently, decided every case that will come before the court ahead of time. Scalia calls himself a “textualist” and recently told a few hundred people who had come to buy his new book that, well, basically he claims to speak for the Founders as if he was one of them.
For instance, Scalia believes that, because the Founders did not think that the death penalty was unconstitutional, then neither does he. At the American Enterprise Institute he went on to say “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.”
Scalia even claims that “the Constitution means exactly what I think it ought to mean.’ No kidding.”
Scalia, essentially, thinks that the only people who should change the law are legislators.
In many ways, Scalia’s thoughts are not unknown, but they amount to a cop out. Scalia does not want to take responsibility for his actions. Had, for instance, the Supreme Court decided Brown v. Board of Education based upon Scalia’s belief system, educational disparity between Blacks and Whites would have continued into the present. The same holds true for Loving v Virginia.
If it were not for the Supreme Court, many of the rights that have not been legislated would not have gotten through the legislature. This is in part because the Founders envisioned the courts as being the last arbiter as to what was and was not Constitutional. When the case Marbury v Madison, only one Founder appears to have criticized it substantially, and that was Thomas Jefferson, who was not part of the Constitutional Convention.
The Founders thought of the Constitution as a living document, and not one to be used to impose tyranny on others. However, if Scalia feels that he is incapable of actually doing his job as a Supreme Court justice, it is, perhaps, time for him to step down.