Yes, that’s right.
Scalia said Citizens United was wrongly decided.
He said it yesterday, at the argument on the constitutionality of California’s Prop. 8. He also said that the right to bear arms doesn’t, after all, preclude the federal government and the states from enacting gun-ownership restrictions as they wish, so the recent Court opinions holding otherwise were decided incorrectly. And we now know that the Court will uphold Texas’s college-admissions affirmative action law as constitutional and that Scalia will join in the opinion.
Here’s the lengthy exchange between him and Ted Olson, the lawyer for the same-sex couples who challenged the constitutionality of Prop. 8:
JUSTICE SCALIA: You — you’ve led me right into a question I was going to ask. The California Supreme Court decides what the law is. That’s what we decide, right? We don’t prescribe law for the future. We — we decide what the law is. I’m curious, when -when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?
MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.
JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. (Laughter.)
JUSTICE SCALIA: When do you think it became unconstitutional? Has it always been unconstitutional?
MR. OLSON: When the — when the California Supreme Court faced the decision, which it had never faced before, is — does excluding gay and lesbian citizens, who are a class based upon their status as homosexuals — is it — is it constitutional -
JUSTICE SCALIA: That — that’s not when it became unconstitutional. That’s when they acted in an unconstitutional matter — in an unconstitutional matter. When did it become unconstitutional to prohibit gays from marrying?
MR. OLSON: That — they did not assign a date to it, Justice Scalia, as you know. What the court decided was the case that came before it - JUSTICE SCALIA: I’m not talking about the California Supreme Court. I’m talking about your argument. You say it is now unconstitutional.
MR. OLSON: Yes.
JUSTICE SCALIA: Was it always unconstitutional?
MR. OLSON: It was constitutional when we - as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -
JUSTICE SCALIA: I see. When did that happen? When did that happen?
MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.
JUSTICE SCALIA: Well, how am I supposed to know how to decide a case, then -
MR. OLSON: Because the case that’s before you -
JUSTICE SCALIA: — if you can’t give me a date when the Constitution changes?
MR. OLSON: — in — the case that’s before you today, California decided — the citizens of California decided, after the California Supreme Court decided that individuals had a right to get married irrespective of their sexual orientation in California, and then the Californians decided in Proposition 8, wait a minute, we don’t want those people to be able to get married.
CHIEF JUSTICE ROBERTS: So — so your case — your case would be different if Proposition 8 was enacted into law prior to the California Supreme Court decision?
MR. OLSON: I would make — I would make the — also would make the — that distinguishes it in one respect. But also — also — I would also make the argument, Mr. Chief Justice, that we are — this - marriage is a fundamental right and we are making a classification based upon a status of individuals, which this Court has repeatedly decided that gays and lesbians are defined by their status. There is no question about that.
JUSTICE SCALIA: So it would be unconstitutional even in States that did not allow
MR. OLSON: We do, we submit that. You could write a narrower decision.
JUSTICE SCALIA: Okay. So I want to know how long it has been unconstitutional in those -
MR. OLSON: I don’t — when — it seems to me, Justice Scalia, that -
JUSTICE SCALIA: It seems to me you ought to be able to tell me when. Otherwise, I don’t know how to decide the case.
MR. OLSON: I — I submit you’ve never required that before. When you decided that — that individuals — after having decided that separate but equal schools were permissible, a decision by this Court, when you decided that that was unconstitutional, when did that become unconstitutional?
JUSTICE SCALIA: 50 years ago, it was okay?
MR. OLSON: I — I can’t answer that question, and I don’t think this Court has ever phrased the question in that way.
JUSTICE SCALIA: I can’t either. That’s the problem. That’s exactly the problem.
MR. OLSON: But what I have before you now, the case that’s before you today, is whether or not California can take a class of individuals based upon their characteristics, their distinguishing characteristics, remove from them the right of privacy, liberty, association, spirituality, and identity that - that marriage gives them. It — it is — it is not an answer to say procreation or anything of that nature, because procreation is not a part of the right to get married.
“Baker”–as in, “Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?”–refers to a 1972 case called Baker v. Nelson, which, as Linda Greenhouse explained last week in a terrific column
in the New York Times, involved a challenge to the constitutionality of Minnesota’s bar to same-sex marriage was unconstitutional. Under a federal statute that was repealed in (I believe) 1986 at the specific request of William Rehnquist, the Supreme Court was required to consider all cases involving federal constitutional issues in which the immediate lower court was a state (rather than a federal) court of appeals. So in Baker
, the Court summarily ruled in a pro forma
single sentence without briefing, much less oral argument, that the case failed to raise a substantial question of federal law. I.e., there was no constitutional right of same-sex couples to marry.
Which leads me right into a question that I hope the Dem-appointed justices ask in their dissents in Fisher v. University of Texas, the affirmative action case argued at the Court earlier this term: When, exactly, did it became unconstitutional for a state university to consider race in its admissions process? 1791? 1868, when the Fourteenth Amendment was adopted? Some time after Bollinger v. Grutter in 2003, when although the Court did say the issue presented a substantial question of federal law, the Court also said that race was, like other criteria beside academic qualifications (such as regional demographics and such as “legatee” considerations), constitutionally permissible?
And I hope that the next time a state such as Montana enacts a stringent campaign-finance law, Scalia himself will ask the Koch brothers, or the Citizens United organization, or whoever is the named* plaintiff in the case, when exactly such laws became an unconstitutional violation of the First Amendment’s speech clause. 1791? 1868, when the Fourteenth Amendment was adopted? Was it sometime after 1912, when Montana enacted the statute
that the Supreme Court last June summarily held was unconstitutional
under the Citizens United opinion, which was not issued shortly after 1781 or 1868 but instead in 2010?
These are easy questions. The lawyers for the challengers of these laws should have an easy time answering them. The answer, of course, being that “originalism” can be, and is, turned on and off like a water faucet by those who subscribe to it as a legal theory when the weather is fair.
*Oh. dear. There was a really funny typo in that sentence originally: “naked plaintiff,” instead of “named plaintiff.” I probably should have left it that way.
Bev…this post reminds me so much of your writings on Slate for so many years which drew me to follow you over here on Angry Bear. One of the problems with the way we address these very difficult issues before the courts is that the time allotted for arguments really cannot provide ample opportunities for a full debate. It all comes down to a couple verbal jousts in a short time period where any advocate can forget to make important points in the immediacy of the jurists only to reflect back upon the exchange later and wish one had said this or that. Even the great Ted Olsen is fallible in the face of this obviously slanted line of questioning by Scalia and some of the other remarks by Roberts and Alito. It appears they do not want a full debate, they only use these public displays to give us the appearance that they are deliberating when in fact, their minds are made up before arguments are even uttered.
honestly might be the best critique I have read of Scalia.
Thanks, Woolley. I thought Olson had one of the best lines ever made during an oral argument: “When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.” Not that I know every line ever said at the Supreme Court–or almost any lines said at the Supreme Court–but this line absolutely flattened the “origionalist” gimmick.
The Supreme Court is mostly such an outrageous institution these days, in so many respects, that it makes me sick. Then again, that’s true of the entire U.S. court system, federal and state.
Thanks, anirrattionalview. Not sure you were referring to my take, or instead to Olson’s. But I’ll say thanks anyway.
his line of questioning, your synthesis of it coupled with other contemporary con law issues.
i won’t go into detail, but this really helps wrap my head around some of his opinions regarding the 8th amendment where his staunch advocacy for orginalism and against the notion that constitutionality is an evolving concept really came out–who else but Scalia would analyze what was cruel and unusual during the time of bloody assizes to determine what is cruel and unusual in the 20th centuries vis-a-vis?
Ok, so just more of debate club.
Following the reasoning of innocent until proven guilty (because you can never prove yourself 100% innocent, so make the state prove 100% guilty) would not at the moment of ratification of the constitution everything become constitutional until ruled to be otherwise?
To not view it this way would be to believe we can possibly write enough laws to cover every possible variant activity such that we can perfectly define and codify responsibility.
The problem is Scalia as the others are just so impressed with them self and their self perceived brilliance. Can you say Sheldon Cooper?