Document Type
Article
Publication Date
2023
Publication Citation
18 Florida International University Law Review 61
Abstract
This Article explores how Justice Antonin Scalia’s hostility to psychology, antipathy to granting children autonomous rights, and dismissiveness of children’s interior lives both affected his jurisprudence and was a natural outgrowth of it. Justice Scalia expressed a skeptical, one might even say hostile, attitude towards psychology and its practitioners. Justice Scalia’s cynicism about the discipline and the therapists who practice it is particularly interesting regarding legal and policy arguments concerning children. His love of tradition and his rigid and unempathetic approach to children clash with modern notions of child psychology. Justice Scalia’s attitude towards psychology helps to explain his jurisprudence, but more importantly, illustrates how his dedication to tradition, history, and originalism leads to his attitudes towards children and psychology, and raises interesting questions about the role of psychology in legal opinions. The use of children as “posterchildren”—sympathetic representatives of liberal causes—for abolishing the death penalty and curtailing public-sponsored prayer clearly irked Justice Scalia. Additionally, Justice Scalia’s attitudes toward psychology present a fascinating lens for assessing how judicial philosophy and personal proclivity reinforce each other. More broadly, this Article explores how judges should use brain science, social psychology, and clinical psychology in their legal analyses.
Recommended Citation
Orenstein, Aviva, "The Child Vanishes: Justice Scalia's Approach to the Role of Psychology in Determining Children's Rights and Responsibilities" (2023). Articles by Maurer Faculty. 3094.
https://www.repository.law.indiana.edu/facpub/3094
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Family Law Commons, Jurisprudence Commons, Law and Psychology Commons, Law and Society Commons, Supreme Court of the United States Commons