Is Scalia a Hypocrite?

Justice Scalia is, by all accounts, a brilliant person and he certainly has a well-developed ideology and judicial philosophy. So when someone accuses him of contradicting himself, it's worth listening to. In his Slate column yesterday, William Saletan claims that Scalia has flip-flopped on whether or not minors should be held responsible for their actions.

In his dissent from the majority in Roper v. Simmons (announced yesterday), Scalia himself accuses some of his colleagues of reversing course on this matter. He points out that in the abortion case Hodgson v. Minnesota, they argued that minors are often mature and rational enough to make their own decisions and, therefore, insisted that parental consent laws provide for judicial by-pass. Now, in the juvenile death penalty case, Scalia argues that some of these same justices hold minors to be too immature to fully comprehend their actions, which is the basis for the majority's ruling that a person can't be put to death for acts committed as minors.

Saletan, however, says it's Scalia who has changed his position. Scalia opposed the judicial by-pass requirement - thus, according to Saletan, treating minors as incapable of making grown-up decisions - but now believes that minors are quite aware of what they're doing in committing murder and, as a result, can be held accountable for their actions.

The problem with Saletan's argument is that he never provides evidence that Scalia argued against judicial by-pass on the grounds that minors aren't mature enough to make decisions about pregnancy. He dissented from that part of Hodgson because he opposes abortion, regardless of how old someone is and no matter how mature or rational she is. His technical reason for opposing judicial by-pass is simply that he finds no basis for such an exemption in the Constitution. As he wrote at the time, "I continue to dissent from this enterprise of devising an Abortion Code, and from the illusion that we have authority to do so."

Saletan should have known that Scalia won't be caught in a contradiction that easily.