Once upon a time, Supreme Court justices were seen but not heard. The only time they spoke in public was to ask a question at oral arguments. Otherwise, they kept their counsel and spoke through written opinions or dissents.
Sadly, that’s no longer the case. Today, a few of them are out in public spouting off all the time, like wannabe TV pundits, occasionally even commenting on matters that may soon come before the court. The worst offender is Justice Antonin Scalia, as he proved once again this week.
There’s nothing new about Scalia’s making outrageous remarks, both on and off the bench. He’s been doing it his entire judicial career. On “Fox News Sunday,” for example, shortly after the July movie theater shooting in Aurora, Colo., Scalia defended the right of Americans to arm themselves with any “hand-carried” weapon. “It doesn’t apply to cannons,” he explained. “But I suppose there are hand-held rocket launchers that can bring down airplanes that will have to be decided.” And there’s no doubt how Scalia would vote.
At an October book-signing, as reported by Nina Strochlic of The Daily Beast, Scalia cavalierly dismissed three Supreme Court-weighty issues: “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.”
Not even the pope, apparently, hates homosexuality as much as Scalia. In Lawrence v. Texas, he not only dissented from the court’s decision to strike down the state’s anti-sodomy statute, he accused the court of allowing for anything goes. From now on, argued Scalia, “state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity” are all “called into question.”
Continuing his obsession with homosexuality, Scalia outdid himself this week. Speaking at Princeton University, Scalia defended equating laws against sodomy with laws against bestiality — and then took it a step further. “If we cannot have moral feelings against homosexuality,” he asked, “can we have it against murder?” Murder? Seriously? He does not recognize the difference between consensual sex between two same-sex adults and murder? Sometimes, it’s hard to tell the difference between Scalia law and Sharia law!
Now, here’s the problem. It’s OK for someone to hold those views, no matter how warped. It’s scary that someone so homophobic, and so close-minded, should sit on the Supreme Court. But it’s totally wrong for anyone with those views to be in a position to rule on any issue related to gay rights. After equating homosexuality with murder, how can he possibly consider the facts and rule fairly on same-sex marriage?
Unfortunately, the answer to that question is entirely up to Scalia himself. Unlike lower courts, where judges are required to step aside in cases where their “impartiality might reasonably be questioned,” Supreme Court justices face no such legal obligation. Only the obligation of their own conscience, assuming they have one.
Some justices take that obligation seriously. In January 2012, Justice Sonia Sotomayor recused herself from a case where TV networks challenged the FCC’s indecency rules. Why? Because she’d heard the case on a lower court. Before joining the highest court, Sotomayor recused herself 141 times in her 17 years as a federal judge — once only because the plaintiff in the case was a diabetic, and she’s a diabetic herself.
Scalia, on the other hand, operates as if he has no conscience at all, as he demonstrated in 2004 when the Sierra Club and others demanded he refrain from ruling on whether or not Vice President Cheney should release secret records of his energy task force. With that case pending before the court, Scalia went duck hunting with Cheney — actually flew to Louisiana in Cheney’s government jet — yet still refused to recuse himself from the case. A decision he later said was “the proudest thing I have done on the bench.”
The two marriage equality cases are much more important than the Cheney case, because they involve a fundamental question of constitutional rights. Having already spoken so forcefully against gay rights, Scalia must voluntarily recuse himself from the case. If he refuses, Chief Justice John Roberts should publicly demand that he do so.