Demogogue du jour

Scalia speaks, from WaPo:

Scalia decried his own court's recent overturning of a state anti-sodomy law, joking that he personally believes "sexual orgies eliminate tension and ought to be encouraged," but said a panel of judges is not inherently qualified to determine the morality of such behavior.

Can anyone see the hole in this? It's big enough to fit Washington, D. C. into, with room left over for most of Maryland.

The case he's referring to, Lawrence and Garner vs. Texas, did not pass on the morality of consensual sodomy. It merely told the state of Texas that it had no right to legislate private morality without a compelling, rational reason. Demogoguery like this is one reason Scalia is the ideal justice in the eyes of the wildmons. And it is demogoguery, pure and simple. And this man is held up a a fine legal scholar?

He goes on:

"Judicial hegemony" has replaced the public's right to decide important moral questions, he said. Instead, he said, politics has been injected in large doses to the process of nominating and confirming federal judges.

The public has always had a limited right to decide important moral questions -- all questions, for that matter. That's a well-entrenched and very basic principle of American government. The will of the people comes up against the hard rock of the Bill of Rights, resulting in decisions such as that in Lawrence and Garner: governance of this country is based on the limited sovereignty of the people, subject to the basic principles enshrined in the Constitution. Scalia should know that, and I'm sure he does. It just doesn't fit his political agenda to acknowledge it.

I want to be there when someone introduces a constitutional amendment to control private, consensual sexual behavior. I really do.

Notice also that he doesn't make reference to the fact that Lawrence and Garner overturned Bowers vs. Hardwick, quite explicitly. Is it perhaps that Bowers was always a marginal decision to begin with (I don't recall, in the course of paying attention to such things, any decision that was so completely excoriated by legal scholars) and that the public sentiment no longer has much patience with the state dictating private sexual behavior? Could that be germane, do you suppose? So that maybe the Court's decision does reflect the will of the people?

And an we look back in recent history and see who started insisting on litmus tests for judicial nominees? Could it be -- the Republicans?

Nota Bene: The article cites Scalia as "well-known as a strict constructionist." He is one of the two most thoroughly activist justices on the Court (measured in votes to overturn laws), the other being -- yep -- Clarence Thomas.

Big surprise.