Analysis: Is It Time To Impeach Scalia?

LONDON – Although 1986 was before some readers here were born, others may remember that that was the year that Associate Supreme Court Justice Antonin Scalia was the subject of confirmation hearings before the Senate Judiciary Committee, and the 80 pages of his testimony make interesting reading.

Take, for example, his response to Sen. Edward Kennedy's question as to whether, if he were confirmed, Scalia would "expect to overrule Roe v. Wade"?

"Senator, I do not think it would be proper for me to answer that question," Scalia responded. "I mean, if I can say why: Let us assume that I have people arguing before me to do it or not to do it. I think it is quite a thing to be arguing to somebody who you know has made a representation in the course of his confirmation hearings, and that is, by way of condition to his being confirmed, that he will do this or do that. I think I would be in a very bad position to adjudicate the case without being accused of having a less than impartial view of the matter." [Emphasis added]

Now, fast-forward 22 years, to the interview Scalia gave on Tuesday to BBC Radio 4's program Law In Action:

Interviewer: "Tell me about the issue of torture? We know that cruel and unusual punishment is prohibited under the 8th Amendment. Does that mean if the issue comes up in front of the court, it’s a 'no-brainer'?"

Scalia: "Well, a lot of people think it is, but I find that extraordinary to begin with. ... Is it really so easy to determine that smacking someone in the face to find out where he has hidden the bomb that is about to blow up Los Angeles is prohibited under the Constitution? Because smacking someone in the face would violate the 8th Amendment in a prison context. You can’t go around smacking people about. Is it obvious that what can’t be done for punishment can’t be done to exact information that is crucial to this society? It’s not at all an easy question, to tell you the truth." ...

"Seems to me you have to say, as unlikely as that is, it would be absurd to say that you can’t stick something under the fingernails, smack them in the face. It would be absurd to say that you couldn’t do that. And once you acknowledge that, we’re into a different game. How close does the threat have to be and how severe can an infliction of pain be?"

"There are no easy answers involved, in either direction, but I certainly know you can’t come in smugly and with great self-satisfaction and say, 'Oh, this is torture and therefore it’s no good.' You would not apply that in some real-life situations. It may not be a ticking bomb in Los Angeles, but it may be: 'Where is this group that we know is plotting this painful action against the United States? Where are they? What are they currently planning?'" [Emphasis added]

Never mind that the leading experts on interrogation have testified that "information" gained by torture is extremely unreliable, and that the victims often simply make up stories that they believe their interrogators want to hear in order to get the torture to stop; this Supreme Court Justice gets his ideas on torture's efficacy and the culpability of its users from "24":

"Senior judges from North America and Europe were in the midst of a panel discussion about torture and terrorism law," reported UK's The Globe and Mail last June, "when a Canadian judge's passing remark – 'Thankfully, security agencies in all our countries do not subscribe to the mantra "What would Jack Bauer do?"' - got the legal bulldog in Judge Scalia barking."

"The conservative jurist stuck up for Agent Bauer, arguing that fictional or not, federal agents require latitude in times of great crisis. 'Jack Bauer saved Los Angeles. ... He saved hundreds of thousands of lives,' Judge Scalia said. Then, recalling Season 2, where the agent's rough interrogation tactics saved California from a terrorist nuke, the Supreme Court judge etched a line in the sand."

"'Are you going to convict Jack Bauer?' Judge Scalia challenged his fellow judges. 'Say that criminal law is against him? "You have the right to a jury trial?" Is any jury going to convict Jack Bauer? I don't think so.'"

As most adults know – though apparently not Justice Scalia – television is often not reflective of real life, and reality rarely works out quite as neatly as a television program. Take, for instance, the case of Sami al-Hajj , an Al Jazeera cameraman arrested in Afghanistan in 2001, who's been "beaten, starved, frozen and subjected to anal searches in public" thanks to "a significant amount of information, both unclassified and classified, which supports [his] continued detention" – but which al-Hajj hasn't been allowed to see. He's been on a hunger strike for more than a year, which means that "twice daily he is strapped down and a tube is wound up his nose and down his throat to his stomach. Sometimes a lubricant is used, and sometimes it isn't, so his throat and nose have been rubbed raw. Sometimes a tube still bloody from another hunger striker is used, his lawyers say."

Think that case might wind up before Scalia someday?

But the point is, for a Supreme Court Justice, who claimed during his confirmation proceedings (as, admittedly, other nominees have also done) that he should not comment publicly on issues that may come before him on the high court, and then to make just such comments as noted above when the issue of whether United States agents should be allowed to engage in torture of prisoners, or whether they have actually done so already, is even now making its way toward Supreme Court review, is the height of hypocrisy.

But then, hypocrisy is nothing new to Scalia. Consider that on March 8, 2006, when Scalia was speaking at the University of Freiberg in Switzerland, and told the assemblage, "War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts. I had a son on that battlefield and they were shooting at my son, and I’m not about to give this man who was captured in a war a full jury trial. I mean it’s crazy."

Scalia was obviously referring to Salim Ahmed Hamdan, whose case was argued before the Supreme Court just 20 days after Scalia's speech, and the question was whether Hamdan, a driver for Osama bin Laden from 1996 to 2001, had the right, under the habeas corpus provision (Article I, Sec. 9) of the U.S. Constitution, to challenge President Bush's assertion that Hamdan could be tried for "conspiracy" by a military commission. Hamdan argued that neither Congress nor the common law of war allowed such a trial, and that the procedures under which he was to be tried violated basic tenets of military and international law, such as that he should be allowed to see and hear the evidence against him. The Court ruled that Hamdan was correct – and Scalia, despite his obvious bias against Hamdan, participated in the decision ... and, of course, dissented from the majority.

But the fact that Scalia participated at all in the Hamdan debate is problematic , especially in light of what he said at his confirmation hearing:

Senator Mathias: [I]f a reasonable litigant actually believed that your judgment would be distorted because of some strong personal bias or belief, would that dissuade you from sitting on a case?

Judge Scalia: I think the statute reads that way, Senator. I have the statute somewhere. I am quite sure that the way you put it is about the way the statute reads, requiring disqualification. If I may, Title 28, United States Code, Section 455: "Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

Certainly, any reasonable person would think that Scalia's impartiality was in question in light of his statement in his Freiberg speech .. but he took part in the case nonetheless, apparently in violation of 18 U.S.C. §455. The same holds true for his participation in Walker v. Cheney, where Scalia, fresh from a hunting trip with the Vice-President, ruled that his friend did not have to release the names of the participants in Cheney's 2001 Energy Task Force, which was highly influential in setting the Bush administration's energy policy and may have been the basis for sweetheart deals for the participants.

Finally, of course, there's Scalia's prejudice against adult businesses, which he set forth at length in his dissent in the FW/PBS, Inc. v. Dallas case.

"Since this Court first had occasion to apply the First Amendment to materials treating of sex, some three decades ago, we have been guided by the principle that 'sex and obscenity are not synonymous'," Scalia wrote, citing the 1957 opinion in Roth v. U.S.. "The former, we have said, the Constitution permits to be described and discussed. The latter is entirely unprotected, and may be allowed or disallowed by States or communities, as the democratic majority desires."

While the construction of those last two sentences allows for multiple interpretations, it certainly sounds like Scalia is stating categorically that the Constitution, with its prohibition that "Congress shall make no law ... abridging freedom of speech, or of the press," nonetheless allows Congress the power to abridge one particular form of speech: Obscenity.

Of course, Scalia apparently hasn't always had such a limited view of protected speech. Check out this exchange with Sen. Joseph Biden during Scalia's confirmation hearing:

Senator Biden: Let me ask you: The First Amendment to the Constitution states, "Congress shall make no laws [sic] ... abridging the freedom of speech."

How do you define speech, Judge?

Judge Scalia: I define speech as any communicative activity.

Senator Biden: Can it be nonverbal?

Judge Scalia: Yes.

Senator Biden: Can It be nonverbal and also not written?

Judge Scalia: Yes.

Senator Biden: So freedom of speech can encompass physical actions?

Judge Scalia: Yes, sir.

Admittedly, Biden was referring, in that dialog, to protesters sleeping in a park across from the White House, but the questions were asked generally, and Scalia responded with general principles ... and there can be little doubt that adult video performers communicate their erotic message at least in part through physical actions ... but since it involves sex, hypocrite Scalia has decided that's not protected.

But could the Constitution have somehow changed over the 166 years between its ratification and the Roth decision, so that so-called "obscene" speech was no longer protected?

"What I think is that the Constitution is obviously not meant to be evolvable so easily that, in effect, a court of nine judges can treat it as though it is a bring-along-with-me statute and fill it up with whatever content the current times seems to require," Scalia said at his confirmation hearing. "To a large degree, it is intended to be an insulation against the current times, against the passions of the moment that may cause individual liberties to be disregarded, and it has served that function valuably very often. So I would never use the phrase, 'living Constitution'." [Emphasis added]

But granting for a moment the possibility that Scalia doesn't personally think that obscenity is non-protected speech, but is merely affirming what the Warren court found in Roth, one aspect of Scalia's thinking on sexual speech is clear: States can make it illegal to sell it in sexually-oriented businesses.

"The Dallas ordinance at issue in these cases is not an isolated phenomenon," Scalia wrote in his dissent in FW/PBS. "It is one example of an increasing number of attempts throughout the country, by various means, not to withhold from the public any particular book or performance, but to prevent the erosion of public morality by the increasingly general appearance of what the Dallas ordinance delicately calls 'sexually oriented businesses.' Such businesses flourish throughout the country as they never did before, not only in New York's Times Square, but in much smaller communities from coast to coast." ...

"While many communities do not object to such businesses, others do, and have sought to eliminate them," Scalia continued, referring to Renton-style zoning and licensing laws, and later adding, "Not only are these oblique methods less than entirely effective in eliminating the perceived evil at which they are directed (viz., the very existence of sexually oriented businesses anywhere in the community that does not want them), but they perversely render less effective our efforts, through a restrictive definition of obscenity, to prevent the 'chilling' of socially valuable speech." ...

"It does not seem to me desirable to perpetuate such a regime of prohibition by indirection," Scalia concluded. "I think the means of rendering it unnecessary is available under our precedents and should be applied in the present cases. That means consists of recognizing that a business devoted to the sale of highly explicit sexual material can be found to be engaged in the marketing of obscenity, even though each book or film it sells might, in isolation, be considered merely pornographic and not obscene. ... [I]t seems to me that Ginzburg [v. U.S.], read together with Miller [v. California], establishes at least the following: The Constitution does not require a State or municipality to permit a business that intentionally specializes in, and holds itself forth to the public as specializing in, performance or portrayal of sex acts, sexual organs in a state of arousal, or live human nudity. ... The prohibition of concentrated pornography here is analogous to the prohibition we sustained in [Young v.] American Mini Theatres. There we upheld ordinances that prohibited the concentration of sexually oriented businesses, each of which (we assumed) purveyed material that was not constitutionally proscribable. Here I would uphold an ordinance that regulates the concentration of sexually oriented material in a single business."

Scalia's not a stupid guy; he hides his prejudices well in the verbiage of his legal opinions. Even his tirade in Lawrence v. Texas is couched in precedential terms even as it claims that the Lawrence decision will mean the end of state laws against "bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity."


But the fact remains that Scalia's hypocritical approach to several high-profile Supreme Court cases, as well as his reliance on his own "moral" (actually religious) prejudices in certain crucial decisions, notably as to precedent-setting free speech controversies, have so warped his judicial judgment that Justice Antonin Scalia has no place on the bench of the Court that determines the workings of the Supreme Law of the Land, the U.S. Constitution.