of jurisprudential consistency, but those trying to play “gotcha” with him have to do much better than this 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 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 Howard for the link.
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