Jun 27th 2013

Scalia Scales New Heights of Absurdity and New Lows of Judicial Malfeasance

by Jeff Schweitzer

Jeff Schweitzer is a scientist and former White House Senior Policy Analyst; Ph.D. in marine biology/neurophysiology

The Constitution of the United States is nothing more than a piece of paper home to some clever words. The reason a great nation arose from that parchment has nothing to do with the document and everything to do with its readers. Americans have collectively agreed, by simple convention, to live by the tenets and dictates of our founding principles; we and our ancestors have accepted this social contract based on the notion that we are a nation of laws protected from the tyranny of the majority through the checks and balances of federal power. Faith in our institutions is a critical element to the nation's survival. Included in that equation is a belief that our highest court is removed, at least to some reasonable degree, from the passions of current politics. We want to believe that a majority of the Justices can overcome their own political views to write opinions in the nation's long-term best interests. In fact, this has historically been the case. Yes, there are some obvious and notable exceptions in which contemporary political views led the court astray (Dred Scott v. Sandford in 1857; Plessy v. Ferguson in 1896; Hamdi v. Rumsfeld in 2004, to name just a few). But those are the exceptions that prove the rule; and over time the Court has often self-corrected (Brown v. Board of Education in 1954). At least until the era of Antonin Scalia.

It would seem that Scalia is determined to mount a campaign designed to do everything possible to undermine our faith in the Supreme Court. His radicalism, irrationality and extremism threaten the credibility of the most important anchor in our three-branch government. Books will be written about his destructive tenure, but in the meantime we can lament his most egregious rulings. The latest came just this week in the majority opinion to overturn 50 years of civil rights law and in his dissent to the majority's decision to overturn the Defense of Marriage Act. Consistent in his inconsistency, on the one hand he cavalierly ignored 50 years of precedent, relishing judicial activism, while the very next day deplored Supreme Court intervention in the gay marriage debate. In the year 2013 Scalia expresses outrage at the legality of "homosexual sodomy" without condemning that act between a man and woman. An activist who deplores activism, Scalia has no problem with court determination of what orifice by what gender we may or may not enter. Further muddling his twisted judicial philosophy, he appealed to states' rights in his DOMA dissent, arguing that the issue of gay marriage should left to the states. Oh, if only he had applied that logic to Bush v. Gore.

In an interview in which Scalia made the absurd claim that he and his colleagues do not consider politics in their decisions, he put forth a few telling comments that reveal the ugly truth. First, he justified Bush vs. Gore by noting (with no evidence) that later counts showed Gore would have lost anyway. The exact quote: "No regrets at all. Especially because it's clear that the thing would have ended up the same way anyway."

Whoa. Take a step back and think about that logic. Scalia is saying that he can justify his ruling based on facts that were only revealed later. Meaning at the time of his ruling he had no such justification. What could reveal more clearly his political motivation for his decision? He has admitted here he can only justify what he did with circumstances that developed after he ruled.

Second, when asked about Citizens United, he said the following, "I think Thomas Jefferson would have said the more speech, the better," when asked about so-called super PAC spending on national elections. "That's what the First Amendment is all about. So long as the people know where the speech is coming from." Is this supposedly sharply intelligent man completely dense? He actually defends Citizens United with "as long as people know where the speech is coming from?" The most immediate and terrible consequence of Citizens United is that we DO NOT know where that speech is coming from; the identify of donors is kept hidden. Scalia has lost all credibility: his rulings are clearly political, designed to support a right wing agenda. Worse, his decisions are inconsistent, meaning he rules to promote a particular political outcome rather than on the basis of careful judicial review, precisely what our Founding Fathers did not want for the Supreme Court.

His radicalism seeps out in strange ways. In one case decided in 2010 (Salazar v. Buono), Scalia said he was simply baffled that a Christian cross could be construed to represent Christianity. The case in question is a bit convoluted, but the details are important. A seven-foot cross was erected on Sunrise Rock in 1934 on government-owned land in the Mojave Desert to honor fallen veterans. The metal display has been repaired and replaced many times since, with the latest renovation completed in 1998. A former National Park Service employee, Frank Buono, sued to have the cross removed as an offensive symbol to all non-Christian soldiers and their surviving families. In response to this challenge, Congress offered yet another violation of the Establishment Clause by using sleazy slight-of-hand to circumvent the Constitution. Congress sold a little plot of land on which the cross rests to a veterans group, thereby claiming that the cross no longer stood on federal property. But the transparent ploy of gutting the Constitution by creating an island of private property surrounding by a National Park did not fool the U.S. Court of Appeals for the Ninth Circuit, which ruled the cross had to come down. Our largely Catholic Supreme Court then decided to hear the case.

Justice Antonin Scalia explained that he agreed to put this case on the court docket because he was simply baffled that a Christian cross could be construed to represent Christianity. He was puzzled that a cross was not broadly representative of Islam, Judaism or no religion at all. Take a moment and ponder that. His assertion that the cross represents everybody is extraordinarily bizarre, defying even the most basic elements of decency. How horribly offensive to every non-Christian to be told that the cross is a universal symbol representative of all religions. Our Founding Fathers are spinning furiously in their graves right now. Scalia's view is precisely what our forefathers worked so terribly hard to avoid. Scalia is brazenly choosing one religion over all others in direct violation of the Establishment Clause of the First Amendment:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

In addition to ignoring our Bill of Rights, Scalia has abandoned any pretense of logic to support his faith. To demonstrate how terribly sick Scalia's thoughts are, he asked the ridiculous question, "What would you have them erect? Some conglomerate of a cross, a Star of David, and you know, a Muslim half moon and star?" Notice that Scalia did not offer the obvious and imminently more reasonable alternative of erecting the Crescent of Islam in place of the cross. He only suggested the absurd notion of a chimera. He is so utterly blinded by his faith that he could not imagine that anything other than a cross could serve to honor our soldiers. Would Scalia himself allow a Star of David on his grave? If a Christian would not select a Star of David then why on earth would a Jew choose a cross? Yet that is exactly what Scalia proposes. The notion that the cross represents everybody is extraordinarily bizarre, defying even the most basic elements of decency.

As horrifying as his views are on Christianity, Scalia managed to outdo even himself when he claimed a moral equivalency between homosexuality and murder when speaking at aPrinceton seminar. The exact quote: "If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?"

What is most shocking about this episode is that the incident barely made the news. A few days later the story was completely dead. In a sane world his comments would have unleashed a tsunami of indignation and a groundswell calling for his resignation. The man is not qualified to sit on the court. Not because he holds abhorrent personal views but because his rulings are guided by those views rather than the law. He does not interpret law as is his mandate; he rules according to his repugnant personal views and simply ignores laws and any precedent he finds inconvenient.

Scalia sometimes describes himself as a "textualist" interpreter of the Constitution, meaning he divines the meaning of the words in the Constitution as the framers did in writing them. He channels into the minds of Jefferson and Adams; really how else would he have any greater insight into the meaning of those words than any other legal scholar? Actually he is a "spiritualist" interpreter of our founding document, the Carnac of the Supreme Court. Only Scalia knows what the founders really meant; only he can interpret the words accurately, even though he apparently has trouble interpreting his own. In any case, he said that as a textualist his job was easy. "The death penalty? Give me a break. It's easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state." (In what was to become a pattern, he skipped the issue of heterosexual sodomy, which is also illegal in many of those same states). For a brilliant scholar it is impressive to cram into one sentence so much inanity. Notice that he dismisses any discussion in repealing the death sentence by stating that nothing in the Constitution prevents it. By that logic anything not specifically prohibited is allowed. Well that is exactly true of sodomy as well -- nowhere in the Constitution is sodomy prohibited. By his own logic, just provided to justify his position on the death penalty, requires that he must too support sodomy. But instead of being consistent, he shifts his argument to the states, citing precedent. And that is rich, because no other Justice in modern history has had such disdain for "stare decisis." Scalia cites precedent when it suits his purpose, and rudely dismissed previous rulings when they become inconvenient. Even richer is his appeal to states' rights (implied in his argument) given his willingness to trample over Florida's rights in anointing Bush to the presidency.

For someone supposedly with a keen intellect, Scalia's mind has become a nightmarish olio of jumbled principles packaged with arrogant certainty, which is an extraordinarily dangerous combination. No Justice has been more inconsistent in legal outlook. He is an activist judge who decries judicial activism. He is a strict constructionist who willingly flaunts the will and intent of our founders. He is, in the end, an embarrassment to the history of the Supreme Court. His judicial record is a train wreck, derailing logic and decency. With apologies to Churchill, never has one man done so much to harm so many. In a TV interview, Scalia described his job thusly: "I'm in charge of making the Constitution come out right all the time." By his own criterion, he is a complete, utter failure. He is the epitome of everything that a Justice on the Supreme Court should not be; he is an abomination.

First posted on the Huffington Post. Posted on Facts & Arts with the kind permission by the author.





Facts & Arts is a platform for owners of high quality content to distribute their content to a worldwide audience. Facts & Arts' objective is to enhance the distribution of individual owners' content by combining various types of high quality content that can be assumed to interest the same audience. The thinking is that in this manner the individual pieces of content on Facts & Arts support the distribution of one another. If you have fitting written material, classical music or videos; or if you would like to become one of our regular columnists, a book reviewer or music reviewer; or if you wish to market or broadcast a live event through Facts & Arts, please contact us at info@factsandarts.com.


 


This article is brought to you by the author who owns the copyright to the text.

Should you want to support the author’s creative work you can use the PayPal “Donate” button below.

Your donation is a transaction between you and the author. The proceeds go directly to the author’s PayPal account in full less PayPal’s commission.

Facts & Arts neither receives information about you, nor of your donation, nor does Facts & Arts receive a commission.

Facts & Arts does not pay the author, nor takes paid by the author, for the posting of the author's material on Facts & Arts. Facts & Arts finances its operations by selling advertising space.

 

 

Browse articles by author

More Current Affairs

Apr 16th 2021
EXTRACT: "When we examined the development of nations worldwide since 1820, we found that among rich Western countries like the United States, the Netherlands and France, improvements in income, education, safety and health tracked or even outpaced rising gross domestic product for over a century. But in the 1950s, even as economic growth accelerated after World War II, well-being in these countries lagged.
Apr 11th 2021
EXTRACT: "Some presidents indulge in the “Mount Rushmore syndrome” making an obvious effort to achieve greatness. Normally soft-spoken and apparently modest Biden is making his own bid for immortality."
Apr 9th 2021
EXTRACT: "New ways of thinking about the role of government are as important as new priorities. Many commentators have framed Biden’s infrastructure plan as a return to big government. But the package is spread over eight years, will raise public spending by only one percentage point of GDP, and is projected to pay for itself eventually. A boost in public investment in infrastructure, the green transition, and job creation is long overdue."
Apr 7th 2021
EXTRACT: " One can, and perhaps should, take the optimistic view that moral panics in the US blow over; reason will once again prevail. It could be that the Biden era will take the sting out of Trumpism, and the tolerance for which American intellectual life has often been admired will be reinvigorated. This might even happen while the noxious effects of American influence still rage in other countries. For the sake of America and the world, one can only hope it happens soon.  "
Mar 28th 2021
EXTRACT: "By refusing (despite having some good reasons) to end electoral gerrymandering, Chief Justice John G. Roberts, Jr., has directly enabled the paralyzing hyper-partisanship that reached its nadir during Donald Trump’s presidency. By striking down all limits on corporate spending on political campaigns in the infamous 2010 Citizens United decision, he has helped to entrench dark money in US politics. And by gutting the 1965 Voting Rights Act in Shelby County v. Holder, Roberts has facilitated the racist voter-suppression tactics now being pursued in many Republican-controlled states."
Mar 24th 2021
EXTRACT: "the UK’s tough choices accumulate, and the problems lurking around the corner look menacing. Britain will have to make the best of Brexit. But it will be a long, hard struggle, all the more so with an evasive fabulist in charge."
Mar 15th 2021
EXTRACT: "Over the years, the approach of most American policymakers toward the Israeli-Palestinian conflict has been Israel-centric with near total disregard for the suffering endured by the Palestinian people. The architects of policy in successive US administrations have discussed the conflict as if the fate of only one party (Israel) really mattered. Israelis were treated as full human beings with hopes and fears, while Palestinians were reduced to a problem that needed to be solved so that Israelis could live in peace and security.  ..... It is not just that Israelis and Palestinians haven’t been viewed with an equal measure of concern. It’s worse than that. It appears that Palestinians were judged as less ​human than Israelis, and were, therefore, not entitled to make demands to have their rights recognized and protected."
Mar 8th 2021
EXTRACTS: "XThere’s a global shortage in semiconductors, and it’s becoming increasingly serious." ...... "The automotive sector has been worst affected by the drought, in an era where microchips now form the backbone of most cars. Ford is predicting a 20% slump in production and Tesla shut down its model 3 assembly line for two weeks. In the UK, Honda was forced to temporarily shut its plant as well." ..... " As much as 70% of the world’s semiconductors are manufactured by just two companies, Taiwan Semiconductor (TSMC) and Samsung."
Mar 5th 2021
EXTRACT: "Back in 1992, Lawrence H. Summers, then the chief economist at the World Bank, and I warned that pushing the US Federal Reserve’s annual inflation target down from 4% to 2% risked causing big problems. Not only was the 4% target not producing any discontent, but a 2% target would increase the risk of the Fed’s interest-rate policy hitting the zero lower bound. Our objections went unheeded. Fed Chair Alan Greenspan reduced the inflation target to 2%, and we have been paying for it ever since. I have long thought that many of our economic problems would go away if we could rejigger asset markets in such a way as to make a 5% federal funds rate consistent with full employment in the late stage of a business cycle."
Mar 2nd 2021
EXTRACT: "Under these conditions, the Fed is probably worried that markets will instantly crash if it takes away the punch bowl. And with the increase in public and private debt preventing the eventual monetary normalization, the likelihood of stagflation in the medium term – and a hard landing for asset markets and economies – continues to increase."
Mar 1st 2021
EXTRACT: "Massive fiscal and monetary stimulus programs in the United States and other advanced economies are fueling a raging debate about whether higher inflation could be just around the corner. Ten-year US Treasury yields and mortgage rates are already climbing in anticipation that the US Federal Reserve – the de facto global central bank – will be forced to hike rates, potentially bursting asset-price bubbles around the world. But while markets are probably overstating short-term inflation risks for 2021, they do not yet fully appreciate the longer-term dangers."
Feb 28th 2021
EXTRACT: "To be sure, calls to “build back better” from the pandemic imply some awareness of the need for systemic change. But the transformation we need extends beyond constructing modern infrastructure or unlocking private investment in any one country. We need to re-orient – indeed, re-invent – global politics, so that countries can cooperate far more effectively in creating a better world."
Feb 23rd 2021
EXTRACT: "So, notwithstanding the predictable release of pent-up demand for consumer durables, face-to-face services show clear evidence – in terms of both consumer demand and employment – of permanent scarring. Consequently, with the snapback of pent-up demand for durables nearing its point of exhaustion, the recovery of the post-pandemic US economy is likely to fall well short of vaccine development’s “warp speed.” "
Feb 20th 2021
EXTRACT: "Human rights abuses under Erdogan are beyond the pale of inhumanity and moral decadence. The list of Erdogan’s violations and cruelty is too long to numerate. The detention and horrifying torture of thousands of innocent people for months and at times for years, without being charged, is hard to fathom. Many prisoners are left languishing in dark cells, often in solitary confinement. The detention of tens of thousands of men and hundreds of women, many with their children, especially following the 2016 failed coup, has become common. It is calculated to inflict horrendous pain and suffering to bring the prisoners to the breaking point, so that they confess to crimes they have never committed."
Feb 20th 2021
Courtyard of the Amsterdam Stock Exchange, circa 1670, (Job Adriaenszoon Berckheyde).
Feb 12th 2021
EXTRACT: "Global regulators will no doubt be concerned about a potential volatility spillover from digital asset prices into traditional capital markets. They may not permit what could quickly amount to effective proxy approval by the back door for companies holding large proportions of a volatile asset on their balance sheets."
Feb 11th 2021
EXTRACT: "Since Russians began protesting opposition leader Alexei Navalny’s imprisonment, the security forces have apparently had carte blanche to arrest demonstrators – and they have done so by the thousands. If Russians so much as honk their car horns in solidarity with the protesters, they risk personal repercussions. The official response to the protests goes beyond the Kremlin’s past repression. It is war."
Feb 6th 2021
EXTRACT: ".......like Biden, Roosevelt was certainly no revolutionary. His task was to save American capitalism. He was a repairer, a fixer. The New Deal was achieved not because of Roosevelt’s genius or heroism, but because enough people trusted him to act in good faith. That is precisely what people are expecting from Biden, too. He must save US democracy from the ravages of a political crisis. To do so, he must reestablish trust in the system. He has promised to make his country less polarized, and to restore civility and truth to political discourse. In this endeavor, his lack of charisma may turn out to be his greatest strength. For all that he lacks in grandeur, he makes up for by exuding an air of decency."
Feb 2nd 2021
EXTRACT: "Europe must not lose sight of the long game, which inevitably will center on China, not Russia or relations with post-Brexit Britain. China is already establishing a presence in Iran, and demonstrating that it has the capital, know-how, and technology to project power and influence beyond its borders. Should it succeed in turning the Belt and Road Initiative into a line of geopolitical stepping-stones, it might soon emerge at Europe’s southeastern border in a form that no one in the EU foresaw."
Jan 29th 2021
EXTRACT: "One sign of this change is that, unlike all recent Democratic administrations, Biden’s hasn’t paid obeisance to Wall Street by giving bankers top jobs. The new Secretary of the Treasury, Janet Yellen, is a former Federal Reserve chair and academic who has made it clear that she understands the country’s pressing social needs. Moreover, Biden consulted Warren on her economic views, and has named a former Warren adviser as Yellen’s deputy. Yellen’s appointment demonstrates that Biden shares the insight that enabled Trump’s rise: that too many Americans feel that they cannot get a fair share. "