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.





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