Scalia Is the Right Wing's Version of the West Wing's Justice Roy Ashland

Fictional Chief Justice of the Supreme Court Roy Ashland

In season five of The West Wing, the great Irish actor Milo O'Shea played aging Supreme Court Justice Roy Ashland, whose mental deterioration had the White House worried when he wrote an opinion in trochiac tetrometer. I'd have loved to see the reaction in the west wing to Justice Antonin Scalia's interview in New York Magazine today.

"...power tends to corrupt."

Lack of self-awareness can be a sign denial (in his case, projection), or some worse problem, like anosognosia.

"If Congress can get its act together, it can roll over the president. That’s what the framers thought. They said you have to enlist your jealousy against the legislature in a ¬democracy—that will be the source of tyranny."

I don't disagree, but I wonder if he thinks the logic applies to his branch enlisting its jealousy against the legislature? When he says one thing, then does another, the hypocrisy appears to be politically motivated, and he just sounds like the Bullshitter he is. But perhaps his logical inconsistencies and lack of self awareness have really been flare ups from an undiagnosed condition?

Here he is on the Defense of Marriage Act, in his dissent in US v Windsor:

"We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation."

This is precisely the opposite of his opinion (joining Roberts) in Shelby County, Alabama v Holder, where he joined in striking down Section 4 of the Voting Rights Act, which had been reauthorized by a near-unanimous Congress.

Of course, Jennifer Senior doesn't follow up with any questions about this glaring inconsistency in the long interview. Damn liberal media being so mean to him and all... can't be too tough or conservatives won't agree to interviews (looking at you, Jon Stewart, Bill Maher, et al)...

This guy is such a stouthearted originalist that "cruel and unusual" punishment does not include flogging, so of course being put in jail for butt sex is fine.

"...if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional. I gave a talk once where I said they ought to pass out to all federal judges a stamp, and the stamp says—Whack! [Pounds his fist.]—STUPID BUT ¬CONSTITUTIONAL. Whack! [Pounds again.] STUPID BUT ¬CONSTITUTIONAL! Whack! ¬STUPID BUT ¬CONSTITUTIONAL … [Laughs.] And then somebody sent me one."

Someone please ask Justin A. Frank to write Scalia on the Couch next. I'd like to know more about the proximity of his affinity for flogging and his pounding of his fist to mimic the stamping motion.

Just how stout is this stouthearted originalist?

What about sex discrimination? Do you think the Fourteenth Amendment covers it? 

Of course it covers it! No, you can’t treat women differently, give them higher criminal sentences. Of course not.

He tries to weasel a little as to why he's given a different answer on that before. Fact is, the people who passed the 14th didn't have women in mind. The Supremes themselves determined that the 14th did not apply to women in Minor v. Happersett (more accurately, that decision claimed voting was not a constitutional right). It took the 19th Amendment to overturn that "originalist" decision. Go read the whole article to watch him contort himself into defending unequal treatment of women as NOT discrimination, like prohibiting women from combat. I'd have loved to hear him expand on that list, but alas, onward we must go, because Liberal Media!

"You can’t go to a movie—or watch a television show for that matter—without hearing the constant use of the F-word—including, you know, ladies using it."

We all know what this gesture means
here in the US, Antonin.

Scalia thinks ladies saying fuck is more coarsening to society than his words on the Voting Rights Act:

And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.

My Italian wife says "Fuck you, Tony."

Here's Justice Scalia's contribution to a less coarse society:

The one thing I did think, as he said those somewhat welcoming things to gay men and women, is, Huh, this really does show how much our world has changed. I was wondering what kind of personal exposure you might have had to this sea change. 

I have friends that I know, or very much suspect, are homosexual. Everybody does.

Have any of them come out to you?

No. No. Not that I know of.

Has your personal attitude softened some?

Toward what?

Homosexuality. 

I don’t think I’ve softened. I don’t know what you mean by softened.

If you talk to your grandchildren, they have different opinions from you about this, right?

I don’t know about my grandchildren. I know about my children. I don’t think they and I differ very much. But I’m not a hater of homosexuals at all.

Evasive much? But note that Scalia's son also doesn't exactly hate homosexuals, he just denies they exist.

Maybe Scalia and his son do differ, and Scalia believes homosexuals exist. His comment ("I have friends that I know, or very much suspect, are homosexual") seems to suggest that he thinks they exist. So there's a big difference with his son.

The obvious point is that when Scalia says he doesn't hate homosexuals, it seems to not fit with his desire to declare sodomy laws constitutional (Lawrence v. Texas). It does not fit with his desire to allow states to deny gay couples marriage rights. But even if we don't look at his record, we can just see what he's said about homosexuals.

He joked about sodomy laws being like laws about flag pole sitting. He suggested that laws banning homosexual sex were like laws against murder. He suggested they were like laws banning child porn, incest, and bestiality. But he doesn't hate you, gay people, so relax. It's not like he thinks you're the work of the devil.

Can we talk about your drafting process—

[Leans in, stage-whispers.] I even believe in the Devil.

You do?

Of course! Yeah, he’s a real person. Hey, c’mon, that’s standard Catholic doctrine! Every Catholic believes that.

Every Catholic believes this? There’s a wide variety of Catholics out there …

If you are faithful to Catholic dogma, that is certainly a large part of it.

Have you seen evidence of the Devil lately?

You know, it is curious. In the Gospels, the Devil is doing all sorts of things. He’s making pigs run off cliffs, he’s possessing people and whatnot. And that doesn’t happen very much anymore.

No.

It’s because he’s smart.

Smart like a homosexual fox. I wonder what Scalia would think of the proposition that the Devil is so smart he actually wrote the Bible? Maybe Satan has just gotten lazy and prefers to watch cable.

I watched one episode of—what is it? Duck Dynasty?

What?

I don’t watch it regularly, but I’m a hunter. I use duck calls …

We know.

"It did not involve a lawsuit against Dick Cheney as a private individual," Scalia said in response to a question from the audience of about 600 people. "This was a government issue. It's acceptable practice to socialize with executive branch officials when there are not personal claims against them. That's all I'm going to say for now. Quack, quack."

Later he says his statement refusing to recuse himself from Cheney's case was his most "heroic" opinion. Gotta get in a shout out to his partner in crime. Maybe Scalia would feel differently about hunting, and his old hunting partner, had Scalia gone on a different hunting trip with Cheney.

Scalia's tell that he has a good hand. (Reuters/Yuri Gripas)

Of course, it's next to impossible to interview what might be the biggest bullshitter in the country without accidentally exposing some bullshit.

Here’s another thing I find unexpected about you: that you play poker. Do not take this the wrong way, but you strike me as the kind of person who would be a horrible poker player.

Shame on you! I’m a damn good poker player.

But aren’t you the kind of guy who always puts all of his cards on the table? I feel like you would be the worst bluffer ever.

You can talk to the people in my poker set.

Do you have a tell?

What?

A tell.

What’s a tell?

What’s a tell? Are you joking? 

No.

Scalia with a bad hand. Getty Images, via.

Hey, Antonin, how do I get in your poker set? I regret that I couldn't have played you before you learned what a "tell" is, but I'm thinking even knowing about such a thing won't stop you from having one.

And, isn't gambling in DC, Virginia, and Maryland illegal? Can a Supreme Court justice be indicted? If he's convicted, can we replace him? Or do we have to watch him deteriorate in prison, while he decides cases from his cell?

But how will you know when it’s time to go? It doesn’t seem like you have anything to worry about at the moment, but it’s interesting to hear you even flick at that.

Oh, I’ll know when I’m not hitting on all eight cylinders.

Are you sure? All these people in ¬public life—athletes in particular—never have a clue.

No, I’ll know.

Hopefully, he'll read this interview. But, even if he was aware that he's losing it, he most likely won't resign if there's a Democrat in the White House. I'm sure he figures even if he is losing it, he'd still be a better justice than his replacement.

My proof for this? Just witness the level of narcissism already on display here in his praise for his heroic lone dissent in Morrison v. Olson, which declared the Independent Counsel Act constitutional.

I care about the reasoning. And the reasoning in Morrison, I thought, was devastating—devastating of the majority. If you ask me which of my opinions will have the most impact in the future, it probably won’t be that dissent; it’ll be some majority opinion. But it’ll have impact in the future not because it’s so beautifully reasoned and so well written. It’ll have impact in the future because it’s authoritative. That’s all that matters, unfortunately.

Respect My Authoritah!

Hopefully the literary scholars will team up with the lawyers and watch for any signs of trochiac tetrometer in Scalia's opinions from now on.