Paul Campos: Justice Antonin Scalia in Hot Water Again Over Homosexual Comments

Roundup: Historians' Take

Paul Campos is a professor of law at the University of Colorado at Boulder.

...Scalia would claim that for the Supreme Court to pay attention to public opinion polls is a crime against jurisprudential nature. This may well be—but like many other so-called crimes against nature, it is an exceedingly common one.  For many decades the American right wing has made a veritable fetish out of the idea that the court is in the hands of a decadent cultural elite imposing its taste for various perversities on the public at large. 

This fantasy bears little relation to the banal reality, which is that the court both reflects and is shaped by public opinion, although in a somewhat chaotic and highly inefficient way. For example, it’s hardly a coincidence that the court began to take an interest in same-sex marriage only after that concept was well on its way to being institutionalized by the broader political process—not to mention publicly endorsed by the president of the United States.

In this light, Scalia’s tactless fulminations are, at bottom, a reminder of why life tenure for Supremes is a bad idea, the badness of which increases in direct proportion to our average life expectancy. Put another way, someone who was in law school at a time when 96 percent of the public disapproved of interracial marriage should be considered too old to sit on the Supreme Court....

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