Big Punisher

Supreme Court Justice Antonin Scalia gave his first extensive interview as a member of the court last week, and he had some pretty interesting things to say. Scalia is one of those folks who throw doctrinaire leftists into conniptions and, given my wary disdain for the left, I had always sort of assumed it was because he actually defended the purity of the Constitution in a way that foiled the designs of the establishment left.

I was led to this suspicion because, in my opinion, there is no mandate in the Constitution for most of the left's social engineering. While my view of the left was not swayed by Scalia's interview, my perceptions of him most certainly were. This man is not a principled defender of limited government and individual liberty. He's an astonishingly condescending and disconcertingly casual blowhard.


Two subjects were broached in the interview that carry great historical and moral weight for most serious thinkers but, for Scalia, are the trivial and paranoid refuge of hypochondriacs and sore losers. Those issues are Bush v. Gore and torture.

Scalia was one of the 5 in the 5-4 party-line coup d'etat of 2000. When asked about this ruling by the interviewer, Scalia scowled, his brow furrowed, and made it clear he had lost no sleep after ending a legally-mandated recount in Florida which, had it been completed, would have changed the course of human history.

"Get over it, already!" said the judge. Get over it? Get over Bush? America, and the world, may never get over Bush. That aside, how is it that one of the men who literally gave Bush a presidency that he had not won would castigate the public for its hangups over this maneuver? Aren't we at least entitled to not "get over it" until Bush is out of office, for fuck's sake?

Treating the most momentous ruling in the Supreme Court's history, rendered less than 8 years ago, as an irrelevant distraction is disconcerting enough, but it got worse when Scalia impatiently spat out a few sentences to defend his decision, which he feels is beyond questioning.

"It was Gore who took it to the courts", Scalia said. Well, no. Not only is that simply mistaken, it is the precise opposite of the truth. Florida law, not Al Gore, mandated a recount for such a close election, and it was George W. Bush who petitioned the courts to stop the legally-mandated recount.

And it was Antonin Scalia who, in finding for Bush, wrote that a completion of the recount, as required by law, would have done "irreparable harm to Mr. Bush's claim to the presidency." I've already written a blog about that "logic", but I invite the reader to insert their own metaphor into this line of reasoning and marvel at the absurdist clusterfuck it leads to.

So, not only did Scalia consider Bush v. Gore irrelevant to any constructive analysis of the present, he made it clear that he is not even remotely familiar with the facts of the case. One wonders if he was familiar with the facts when he handed down his ruling.

The next issue was torture. Again, Scalia paraded his shocked and incredulous insouciance at being questioned about such a triviality. The interviewer asked whether torture was "cruel and unusual punishment", as prohibited by the Constitution. Scalia reacted as if the interviewer had asked him to name his three favorite Nazis.

"I don't think anyone would consider it a punishment", the esteemed jurist said. This was a failed attempt at a rhetorical disarming by Scalia, which proved too clever by half. What he was saying is that, since torture is carried out on people who have not been charged, tried, and convicted, it's not a "punishment", since a "punishment" is only applied to one who has been found guilty of a crime.

Okay. Perhaps Scalia has some low-tread semantic point there. But what is the inference of his argument? The inference would be that, while it may be unconstitutional to torture someone as punishment for a crime, it is perfectly legitimate to torture an uncharged detainee. The torture may be cruel and unusual, but it is not legally "punishment". What it is was left unexplained.

So, according to Scalia, Bush v. Gore was a minor blip of the judicial docket, the facts of which he cannot be expected to be acquainted with. And torture is a totally acceptable practice, until one has been convicted in a court of law. Never bringing a detainee to a court of law, of course, is equally acceptable in Scalia's mind.

Are we to be more shocked that Scalia thinks these things, or that he has the balls to say them in public? An academic debate, perhaps, but it is at least a strong argument for judges to refrain from giving interviews. I'd rest easier having no idea what the hell they were thinking.