Saletan on Scalia
William Saletan has this interesting analysis of Justice Scalia's blatant hypocrisy on the subjects of abortion and assisted suicide. Here's an excerpt:
Principle 1 is to beware value judgments disguised as fact or reason. In Casey, Scalia derided his colleagues for reaffirming Roe v. Wade. He accused them of invoking “what the Court calls 'reasoned judgment' ... which turns out to be nothing but philosophical predilection and moral intuition.” In Stenberg, he faulted the other justices for applying a standard that “can not be demonstrated true or false by factual inquiry or legal reasoning. It is a value judgment.”
That was Scalia's principle on abortion. On assisted suicide, however, the principle gets in his way. The latest case, Gonzales v. Oregon, involves a law, directly approved twice by Oregon voters, that lets doctors prescribe drugs so terminally ill people can kill themselves. Years ago, then-Sen. John Ashcroft of Missouri asked then-Attorney General Janet Reno to block the law. She refused, citing states' rights. Ashcroft asked his Senate colleagues to pass legislation to block the law, but they refused, too. So, when President Bush took office, Ashcroft got Reno's job, ordered up an in-house legal memo that said assisted suicide wasn't a “legitimate medical purpose,” and declared that the Controlled Substances Act of 1970 gave him authority to strip the license of any doctor who prescribed lethal drugs under the Oregon law.
Six of Scalia's colleagues conclude that what counts as a “legitimate medical purpose” is a value judgment and that on such questions, a 30-year-old law aimed at hippie stoners doesn't authorize the U.S. attorney general of 2001 to superimpose his moral intuition on the assisted-suicide-policy decision of Oregon voters. Scalia, however, says Ashcroft's definition of “legitimate medical purpose” isn't a value judgment; it's pure reason. He repeatedly calls it the “most natural” and “most reasonable” interpretation of that phrase.
Scalia chides the court's majority for confusing “the normative inquiry of what the boundaries of medicine should be—which it is laudably hesitant to undertake—with the objective inquiry of what the accepted definition of 'medicine' is.” Those silly justices—they applied Scalia's principle when it didn't lead to the result he wanted! To justify Ashcroft's interpretation, you have to spin it as objective, not subjective. Accordingly, Scalia opines, “The use of the word 'legitimate' connotes an objective standard of 'medicine,' and our presumption that the CSA creates a uniform federal law regulating the dispensation of controlled substances ... means that this objective standard must be a federal one.”
Saletan goes on to describe two other examples of Scalia's hypocrisy.
In a lot of circles Sclaia gets presented as the model of a principled justice. He preaches “originalism.” He's not one of those activist judges who just find in the constitution whatever it is they want to do anyway. Some of his more sycophantic admirers are fond of telling stories about how he tracks down dictionaries from two hundred years ago to determine what particular words meant at the time they were written.
In reality he is as much an activist as the people he criticizes. He espouses originalism, one suspects, because most of the time that is the language that provides the best cover for what he thinks the Constitution ought to say. But when abstract legal principles get in the way of his preferred view of the world, as in the Oregon assisted suicide case or in “Bush v. Gore”, the principles go out the window in a hurry.