by Matt Barr

Everybody's an activist!

Cathy Young, like her magazine, resorts to contrarianism to attract otherwise unwarranted attention. I approve of this, because publications and websites trying to sell things will resort to something to attract attention, and better contrarianism than sensationalism. But when being contrary is an end and not a means, you're bound to be wrong now and then, as Young is in the October Reason (not online yet).

The header is "Antonin Scalia, Judicial Activist." As we know, "judicial activism" is "stuff courts do I disagree with" these days, but Young goes further and seems to want to make the point that Scalia "legislates from the bench," to pull from the column's subhead.

Her evidence? His vote with the majority in the Raich medical marijuana case; his "splenetic dissent" in McCreary County, the Ten Commandments case that forbade display of the icon in Kentucky; and his dissent in Lawrence, the sodomy case.

Notice something? In each case, Scalia's vote was to maintain the status quo -- which you can certainly disagree with (and therefore, these days, call "activism"), but which isn't exactly "legislating from the bench." In each case the legislation is being done by a, um, legislative body. (Raich, of course, involved a conflict between state and federal law, but everybody would acknowledge that the federal ban on marijuana possession and distribution was the status quo the California medical marijuana law tried to change.)

Young's thesis is that Scalia's "moral views have a habit of grafting themselves onto his constitutional philosophy." Sure, there was the Kyllo case, as she acknowledges, in which Scalia wrote the opinion disallowing heat sensors to identify marijuana growers under the Fourth Amendment. But (follow me, here) somebody called John Tabin argues, she says, that Kyllo proves that Scalia's vote in Raich was driven by a respect for precedent, but Scalia has voted to overrule Roe v. Wade, so (she concludes) he's really just "listening to [his] own ideological preferences rather than the law." Scalia, not Tabin, with whom she started out disagreeing. Got that? Scalia is a hypocrite because Tabin's argument in his favor is wrong. And it's the only one, ever!

(I don't know anyone besides this Tabin person I'd never heard of who seriously argues that Raich turns on stare decisis and no substantive argument, say, about Congress' powers under the Commerce Clause. But these are the cards we're dealt.)

An alternative way to reconcile Kyllo and Raich not mentioned by Young, and here I'm not smart enough to write for The American Spectator like Tabin but I think there's something to this, is that Kyllo implicated the Fourth Amendment, which actually with its actual words prohibits government from doing something. Taken further than Young does or probably would like, this also helps explain her three pieces of evidence for Scalia's being a tyrant (who gets his way one out of three times -- some tyrant).

The Fourth Amendment guarantees the right of the people to be secure in their homes from unreasonable searches. The parallel provision in the Bill of Rights that Raich implicated was... what? The medicinal marijuana clause? McCreary County -- the Ten Commandments clause? How about the sodomy clause? Don't bother looking, they're not there.

Young introduces some other "surprisingly 'liberal' opinions" near the beginning of her piece, so they don't get in the way later -- Scalia's vote to strike down a law prohibiting flag burning by virtue of the First Amendment, his dissent in Hamdi v. Rumsfeld, arguing an American citizen detained without access to an attorney, a speedy trial, and indictment or information, or several other things required by the Bill of Rights, should be brought to and tried in open court. Again, opposing legislation and executive powers made and exercised in contravention of the Bill of Rights.

A similar bob and weave committed by Young occurs in an attempt to smack down Scalia's McCreary dissent. Scalia "makes a strained argument that the government ... has continued to give preferential treatment to religion." She then proves it hasn't. No, wait! She really says,

One of [Scalia's] examples is property tax exemptions for churches. But such exemptions are strictly nondenominational and are available to nontheistic religious organizations -- as well as, in most cases, secular charitable and educational organizations.

This is nearly impenetrable on its face -- exempting churches from taxes is not an example of favoring religion, because schools are also tax exempt is an argument on par with religious discrimination against anti-abortion judges is permissible because Senators can also discriminate against judicial nominees who favor a society structured around male dominance. (Where did you get that contorted example? From Cathy Young!)

But it's not on its face where this is silly. Tax exemption is one example, and that Young believes she can deftly dispose of that one doesn't make Scalia's entire argument "strained":

[W]hen the government relieves churches from the obligation to pay property taxes, when it allows students to absent themselves from public school to take religious classes, and when it exempts religious organizations from generally applicable prohibitions of religious discrimination, it surely means to bestow a benefit on religious practice--but we have approved it.... Indeed, we have even approved ... government-led prayer to God. In Marsh v. Chambers, supra, the Court upheld the Nebraska State Legislature's practice of paying a chaplain to lead it in prayer at the opening of legislative sessions. The Court explained that "[t]o invoke Divine guidance on a public body entrusted with making the laws is not . . . an 'establishment' of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country."...

If religion in the public forum had to be entirely nondenominational, there could be no religion in the public forum at all. One cannot say the word "God," or "the Almighty," one cannot offer public supplication or thanksgiving, without contradicting the beliefs of some people that there are many gods, or that God or the gods pay no attention to human affairs.

Young decides to make the point that Scalia myopically favors religion without evidence, by taking one of his examples -- arguably not the best one (do nonsectarian organizations like charities and schools likewise benefit from the Nebraska legislature being led in prayer?) -- and attempting what passes for a counterargument. In doing so, though, she leaves casual readers (i.e., readers of her column but not Scalia's McCreary County dissent) with the false impression she's successfully beaten Scalia's shallow, one trick pony argument back.

Confining ourselves to the universe of Young's examples in her essay, we have a Justice who votes to strike down laws that conflict with the Bill of Rights and uphold ones that don't. This is "legislating from the bench"? No, it's "icky stuff Cathy Young disagrees with." Once posted online her piece will be enthusiastically received and get scads of comments on Hit & Run, which, I'm sure, was the point of the article, but it'll be attention it doesn't deserve.

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