Antonin Scalia, MRA

I haven’t commented yet on the fascinating Native American and parental rights case Erik mentions below in part because it’s a genuinely difficult case and I have yet to reach any firm conclusions about it. But there is one thing I’d like to highlight. While Scalia joining the three most liberal members of the Court in dissent in itself signals a salutary willingness not to let hard cases make bad law, the text of his opinion suggests another agenda as well:

While I am at it, I will add one thought. The Court’s opinion, it seems to me, needlessly demeans the rights of parenthood. It has been the constant practice of the common law to respect the entitlement of those who bring a child into the world to raise that child. We do not inquire whether leaving a child with his parents is “in the best interest of the child.” It sometimes is not; he would be better off raised by someone else. But parents have their rights, no less than children do. This father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection.

I should note, at this point, that Scalia’s strong belief in the rights of biological parents is highly selective. In Michael H. v. Gerald D., Scalia held that the state of California could outright abrogate the rights of a biological father in favor of a woman’s husband. (This case is also significant because Scalia, the Last Honest Man In America, tried to quietly overrule not just Roe but Griswold in a footnote; O’Connor and Kennedy spotted this and refused to go along.) So apparently Scalia loses his interest in the undiluted biological rights of parents pretty quickly if there’s no patriarchy in it for him.