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Scalia’s Living Constitution


Prof. B notes the fact that Scalia used his dissent in Roper v. Simmons to mysteriously launch some spittle with respect to the Court’s abortion jurisprudence. As William Saletan notes, this is doubly ironic since Scalia’s position on the moral agency of adolescents has mysteriously changed now that he likes the public policy in question:

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.


O’Connor’s position, in other words, was that age was too rigid a criterion. And what’s her position in the death-penalty context? The same. She opposes a “categorical prohibition” of death sentences for minors, since the evidence merely shows “differences in the aggregate between juveniles and adults, which frequently do not hold true when comparing individuals. Although it may be that many 17-year-old murderers lack sufficient maturity to deserve the death penalty, some juvenile murderers may be quite mature. Chronological age is not an unfailing measure of psychological development.”

Kennedy takes the other side. “All juvenile offenders under 18” should be exempt from execution due to “lack of maturity and an underdeveloped sense of responsibility,” he writes. While conceding that “some under 18 have already attained a level of maturity some adults will never reach,” he insists that “a line must be drawn. … The age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest.”

His position, in short, is that age is an adequate criterion. And what was his position in the abortion context? The same. In Hodgson, he rejected O’Connor’s insistence on a judicial bypass option. “Legislatures historically have acted on the basis of the qualitative differences in maturity between children and adults,” he wrote. “Age is a rough but fair approximation of maturity and judgment.”

Scalia derided his colleagues in Hodgson just as he derides them now. “One Justice holds that two-parent notification is unconstitutional (at least in the present circumstances) without judicial bypass, but constitutional with bypass,” he wrote, citing O’Connor. “Four Justices would hold that two-parent notification is constitutional with or without bypass,” he added, citing Kennedy. These and other disputes among the justices, he concluded, were “the random and unpredictable results of our consequently unchanneled individual views.”

But there’s nothing random or unpredictable in Kennedy’s or O’Connor’s views on the competence of minors in the two cases. They’ve held firm. The only justices who have “changed over the past 15 years” are the one who switched from O’Connor’s side to Kennedy’s—Justice John Paul Stevens—and the two who switched from Kennedy’s side to O’Connor’s: Chief Justice William Rehnquist and, you guessed it, Scalia. At least Rehnquist and Stevens have the sense to keep quiet about it. Not Scalia. He’s too busy poking fun at the APA’s flip-flop to notice that by taking the opposite side in both cases, he’s flop-flipped.

When Scalia writes that “we have struck down abortion statutes that do not allow” judicial bypass, and that in so doing “we have recognized that at least some minors will be mature enough to make difficult decisions that involve moral considerations,” what “we” is he thinking of? It can’t include him. He had a chance in Hodgson to affirm that some minors were mature enough to make moral decisions. He voted no. And as the evolved Scalia observes 15 years later, it’s hard to see why this context should be any different.



I’d also like to add that I don’t think it’s an accident that Scalia has rediscovered the potential moral agency of adolescents now that most of the people in question are men rather than being exclusively women. One of the many indefensible aspects of current Republican abortion policy is that it excludes women who seek abortions from punishment. This is a relic of 19th century abortion laws, which were passed in a period in which it was assumed that women were simply passive victims. For Scalia, as for the Republican Party platform, nothing has really changed…


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