CNN aired a special on the passing and career of Supreme Court Justice Antonin Scalia Saturday night at 10 PM. Scalia passed away in his sleep, apparently of cardiac arrest, at a ranch resort in West Texas early Saturday morning.
Much of the broadcast comprised a 2012 interview of Scalia, then 66, by liberal British columnist Piers Morgan, who several years ago had his own hour on CNN.
Scalia claimed he had no social agenda. He describes himself as a "peaceful man." There was some discussion of Roe v. Wade, decided in 1973, decided before Scalia joined the Court. Scalia said that there was no such thing as a woman’s fundamental right to terminate the life of an unborn, but there was also no such thing as the baby’s right to live until born. He said that this was a moral choice to be made by the will of the people through normal democratic processes. He said he was critical of the extreme Right for a self-serving idea that a just-conceived unborn child had a fundamental right to life. He then criticized the doctrine of “substantive due process” . I had discussed the idea in the “Bill of Rights II” chapter of my own “Do Ask Do Tell II” book in 2002. He believed that the Fifth Amendment protects only procedural due process. I don’t see personally how he can get away from the idea of Substantive Due Process when considering the Fourteenth Amendment.
I wonder how he would respond to questions about whether religious preferences of the majority can be upheld by the democratic process without judicial intervention.
I do think he sees homosexuality as a moral enigma, something that a court should not resolve. He thinks that the majority can legitimately try to stop behavior which the majority, with some rationality, can conclude disrupts the potential common good, even if the mechanisms are indirect, motivational, and beyond the simple sum of provable acts. But he would probably also say that at a certain intellectual level, the arguments of "both" sides are weak: admitting one's own easy distraction (on the homophobic side), and overdepending on immutability, as opposed to conduct that results, on the pro-gay side.
Note, however, some anti-gay language in the 2003 Lawrence v. Texas dissent, as pointed out by Kevin Naff (GLBT blog Feb. 15.)
Early Sunday morning, CNN’s Jeffrey Toobin said that the fight over Obama’s desire to appoint a replacement now was nothing more than a fight over changing a 5-4 conservative majority (which has upheld same-sex marriage and Obamacare) to a 5-4 liberal majority.
The fracas during the second hour of the Republican candidates' debate, in reaction to the Scalia vacancy. is covered in Truthout here. I'm not sure who broadcast the debate live. Matthew Yglesias on Vox comments on Trump's attack on George W. Bush's performance regarding 9/11 and Iraq.