Yet, in an interview with Reuters yesterday, Scalia said he is “enraged” by suggestions that the Supreme Court has become “politicized.” Less than a minute later, however, Scalia launched into a partisan diatribe, this time claiming Democrats are less loyal to the Constitution than Republicans:
It really enrages me to hear people refer to [the Supreme Court] as a “politicized court.” Neither I nor any one of my colleagues votes a certain way because he or she likes this president or is a member of the party that that president belongs to. I could care less who the president is. They vote that way because that’s who they are. They were selected because of who they are.
So why should it be surprising that when you have a Democratic Party which has been trying for years to appoint people who approve ofRoe v. Wade — which means people who are not originalists, who do not stick to the text, who believe in substantive due process or whatever — why should it be surprising when the Democrats have been doing that for 30 years, at least, and the Republicans have been doing the opposite for 30 years — swearing that they are going to appoint people who are not judicial activists, gonna, you know, hew to the text — why should it be surprising that you end up with a Court where the Democratic appointees are quite different from the Republican appointees?
To the extent that Scalia ever had the moral high ground to complain that someone isn’t following the text of the Constitution, he abandoned it completely when he voted to strike down the Affordable Care Act. The Constitution permits Congress to “regulate commerce . . . among the several states,” and the very first Supreme Court decision to interpret these words established that they give the United States “full power” over all forms of interstate trade. The Affordable Care Act regulates trade in health insurance and health care services throughout the country, and thus is clearly and obviously constitutional under the text of the Constitution.
So if Scalia is truly worried about judges who do not follow the text of the Constitution, he might want to look a lot closer to home than the Democratic Party. Moreover, if he is so “enraged” by allegations that his Court is politicized, he might want to consider not adding fuel to those allegations by suggesting that the Republican Party has a monopoly on loyalty to the text of the Constitution.