Scalia says abortion, gay rights are easy cases
Washington • Justice Antonin Scalia says his method of interpreting the Constitution makes some of the most hotly disputed issues that come before the Supreme Court among the easiest to resolve.
Scalia calls himself a "textualist" and, as he related to a few hundred people who came to buy his new book and hear him speak in Washington the other day, that means he applies the words in the Constitution as they were understood by the people who wrote and adopted them.
So Scalia parts company with former colleagues who have come to believe capital punishment is unconstitutional. The framers of the Constitution didn't think so and neither does he.
"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 said at the American Enterprise Institute.
He contrasted his style of interpretation with that of a colleague who tries to be true to the values of the Constitution as he applies them to a changing world. This imaginary justice goes home for dinner and tells his wife what a wonderful day he had, Scalia said.
This imaginary justice, Scalia continued, announces that it turns out "'the Constitution means exactly what I think it ought to mean.' No kidding."
As he has said many times before, the justice said the people should turn to their elected lawmakers, not judges, to advocate for abortion rights or an end to the death penalty. Or they should try to change the Constitution, although Scalia said the Constitution makes changing it too hard by requiring 38 states to ratify an amendment for it to take effect.
"It is very difficult to adopt a constitutional amendment," Scalia said. He once calculated that less than 2 percent of the U.S. population, residing in the 13 least populous states, could stop an amendment, he said.
In a lengthy question-and-answer session, Scalia once again emphatically denied there's a rift among the court's conservative justices following Chief Justice John Roberts' vote to uphold President Barack Obama's health care law. Scalia dissented from Roberts' opinion.
"Look it, do not believe anything you read about the internal workings of the Supreme Court," he said. "It is either a lie because the press knows we won't respond they can say whatever they like and we won't respond or else it's based on information from someone who has violated his oath of confidentiality, that is to say, a non-reliable source. So one way or another it is not worthy of belief."
"We can disagree with one another on the law without taking it personally," he said.
The issue of gay rights, or more specifically same-sex marriage, is expected to be a big one in the term that began this week. While the justices initially were scheduled to discuss the topic at their private conference in late September, it now appears likely that they will not make a decision about whether to take up a gay marriage case until after the presidential election, which would mean arguments would not take place until the spring.
The justices have a variety of pending appeals they could choose to hear that deal in one way or another with gay marriage.
One set of cases looks at whether same-sex couples who are legally married can be deprived of a range of federal benefits that are available to heterosexual couples. Another case deals with California's constitutional amendment banning gay marriage and federal court rulings striking down the amendment. An Arizona case deals with a state law that revoked domestic partner benefits, making them available only to married couples. Arizona's constitution bans gay marriage.