Posted by Orin Kerr:
Justice Scalia Is No Model of Jurisprudential Consistency,
but those trying to play "gotcha" with him have to do much better than
[1]this lame piece by William Saletan in Slate. Here is Saletan's
first paragraph:
Dissenting from Tuesday's U.S. Supreme Court ruling on the
execution of juveniles, Justice Antonin Scalia ridicules his
colleagues for switching sides on the basis of "evolving
standards." He calls the majority opinion a "mockery" for supposing
that the Constitution's meaning "has changed over the past 15
years." It's an unfortunate complaint, because the justice most
flagrantly guilty of changing his position on the moral
responsibility of juveniles in the last 15 years is Antonin Scalia.
What's the evidence that Justice Scalia has "switched sides"? It's
this and only this: Justice Scalia voted to uphold both the juvenile
death penalty (in Roper) and parental notification abortion statutes
(in [2]Hodgson v. Minnesota).
According to Saletan, the juvenile death penalty and parental
notification statutes involve opposite sides of the same basic issue:
the moral responsibility of juveniles. As best I can tell, Saletan
thinks that parental notification laws are premised on the absence of
juvenile moral responsibility, while the juvenile death penalty is
premised on its existence. To Saletan, you can't believe both are
constitutional without "switching sides."
To point out the obvious, though, the Supreme Court is not supposed
to adopt abstract formulations on morality and then decide to strike
down or uphold statutes based on whether a given statute happens to
reflect that formulation. That's the whole point of Scalia's writings
in both the death penalty and abortion contexts: the moral decisions
belong to legislatures, Scalia argues, not the courts. You can agree
or disagree with that, of course, but it seems quite odd to accuse him
of being inconsistent in these cases.
Thanks to [3]Howard for the link.
References
1. http://www.slate.com/id/2114219/
2. http://supct.law.cornell.edu/supct/html/88-1125.ZX2.html
3.
http://www.legalaffairs.org/howappealing/2005_03_01_appellateblog_archive.html#110978600695598872
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