Antonin Scalia’s
notorious speech to the Federalist Society earlier this week was a model of arrogance and hypocrisy, as he said that anyone who “believes the Constitution would break if it didn't change with society” are "idiots", and then went on to say that in his judicial philosophy “there can be no room for personal, political or religious beliefs.” In other words, he is saying that anyone who doesn’t share his “strict constructionist” view of the Constitution is an idiot.
For the sake of argument let’s agree with him for a moment that a strict constructionist view of the Constitution is the best or the only intelligent view, and that anyone who doesn’t agree with that (such as myself and almost all other DUers) is an idiot. Well then, he just called himself an idiot, because Scalia is not a “strict constructionist” at all, but rather simply a right wing ideologue whose decisions almost always favor the rich and the powerful against the common people, and frequently have little or nothing to do with the Constitution. The fact that he uses a strict constructionist argument to justify his right wing ideological decisions when it fits his purposes does not make him a strict constructionist.
Scalia’s decisions often have nothing to do with strict constructionist judicial philosophyAs Cass Sunstein explains in
“Radicals in Robes”, strict constructionism is a judicial philosophy that says that judges should make their decisions based on a literal interpretation of what the Constitution says, or if that’s not perfectly clear then it should be based on what the writers of the Constitution (or its amendments) had in mind when they wrote it, and if that’s not perfectly clear then it should be based on historical precedence (even if more recent precedence contradicts the earlier precedence).
If one accepts that view, then it can be used (and is used) to justify such views as that the Constitution provides no right to privacy nor right to marriage for same sex couples. As Scalia says about the right to privacy, “There is no right to ‘liberty’ under the Due Process Clause… The Fourteenth Amendment expressly allows states to deprive their citizens of ‘liberty,’ so long as ‘due process of law’ is provided. And with regard to gay marriage, strict constructionism merely says that traditionally it has not been accepted in this country, and therefore it should never be made legal. So let’s say that we agree with that :eyes:. Then how does Scalia justify the following:
Affirmative actionScalia consistently votes to strike down
affirmative action programs without consideration of the original understanding of the Equal Protection Clause of the Fourteenth Amendment. Yet, an historical reading of history clearly suggests that affirmative action programs were intended to be legitimate by those who wrote the Fourteenth Amendment. The Fourteenth Amendment was written by Congress shortly after the end of the Civil War. That particular Congress was determined to enact laws that would protect the freed slaves, in the full knowledge that those newly freed slaves were badly in need of protection. Thus was The Freedman’s Bureau created to provide special benefits and assistance for the newly freed slaves.
Freedom of speechIn order to protect the right of the wealthy to have disproportionate influence in elections, Scalia uses the First amendment’s freedom of speech provision by claiming that money is speech. Strict constructionists are supposed to hate that kind of extrapolation. The provision for free speech in the First Amendment was meant mainly to ensure that citizens would be free to criticize their government without fear of punishment. But I guess that if you say enough times that “money is speech” it will become true, right?
Here is a touching lament by Scalia for the poor corporations that might lose some of their influence if their money – I mean speech – isn’t protected:
The incremental benefit obtained by muzzling corporate speech is more than offset by loss of the information and persuasion that corporate speech can contain.
Delegation of law making to regulatory agenciesOur Constitution says that Congress will enact laws. Congress has delegated some of that responsibility to the Executive Branch, in particular with its creation of regulatory agencies that are designed to carry out the broad mandates of Congress, but which are delegated by Congress to write regulations in pursuit of Congress’ mandated goals. But Scalia doesn’t like regulatory agencies because they can interfere with the profits of wealthy persons and corporations. So, he says that it is unconstitutional for Congress to delegate these functions, as in
this article, where he argues against FDA’s right to regulate the tobacco industry. Yet even the very first Congress gave the Executive Branch the authority to grant military pensions.
Sunstein brings up many other examples in his book, such as the effort of Scalia and his cohorts to grant the President unlimited powers to do as he pleases in the interest of “National Security”, even though many of those functions are given to Congress by our Constitution. And Sunstein’s summary of Scalia and his ilk is given
here:
Mr Sunstein shows that fundamentalists have been wildly inconsistent in applying constitutional history, referring to it only when it fits their policy goals. Too often, he says, their interpretation neatly fits only the agenda of the extreme edges of the Republican Party's right wing rather than any reasonable view of history.
“There can be no room for personal, political or religious beliefs” says Scalia – as in the Bush v. Gore case Talking about idiots – How would you describe a person who believed that had the tables been turned in the 2000 Florida Election (i.e., if Bush was the one who wanted the votes to be counted) that Scalia would have stopped the vote count, thereby making Gore President? :rofl: Would such a person be classified as a moron? I couldn’t say, because I can’t even imagine such a person.
The decision to temporarily and then permanently stop the vote count in the 2000 Florida Election, which was the decision that selected George W. Bush as our President, was led by Scalia and joined by four other “Supreme Court Justices” as co-conspirators. As Vincent Bugliosi put it in
“None Dare Call it Treason”:
These five Justices are criminals in every true sense of the word, and in a fair and just world belong behind prison bars as much as any American white collar criminal who ever lived.
Bugliosi is no liberal. In fact, he was one of the main voices arguing against the impeachment of Richard Nixon in the 1970s. But he makes an airtight case that the decision in Bush v. Gore had no basis in constitutional law, was without question motivated solely by political reasons, and that therefore the five justices who participated in that decision should be charged with and convicted of treason for stealing a Presidential election. He gives several reasons for his conclusion. First, with regard to Scalia’s initial decision to stop the vote count:
Justice Scalia, in trying to justify the Court’s shutting down of the vote counting, wrote, unbelievably, that counting these votes would ‘threaten irreparable harm to petitioner (Bush)… by casting a cloud upon what he claims to be the legitimacy of his election’. In other words, although the election had not yet been decided, the absolutely incredible Scalia was presupposing that Bush had won the election – indeed, had a right to win it – and any recount that showed Gore got more votes in Florida than Bush could ‘cloud’ Bush’s presidency.
With regard to Scalia’s use of the Equal Protection Clause of the Fourteenth Amendment to justify his actions, Bugliosi has this to say:
The proof that the Court itself knew its equal protection argument had no merit whatsoever is that when Bush first asked the Court, on 11-22, to consider three objections of his to the earlier, more limited Florida recount taking place, the Court only denied review on his third objection… equal protection.
In other words, the court had ruled just a few days earlier that they wouldn’t even
consider that argument. But time was running out, and if they didn’t act soon Gore might be elected President.
Bugliosi also makes other arguments in support of his contention, including the fact that Scalia and his right wing cohorts are notoriously rigid in their defense of “states’ rights” when it suits their purpose, but in this case they over-ruled a state court (the Florida Supreme Court) that clearly had jurisdiction in this case.
And finally, I will refer to an article –
Lest We Forget – that my son submitted to DU almost five years ago, with some help from me, which made some additional points on this matter (which Bugliosi also made). First, with regard to the use of the Equal Protection Clause:
It did not make sense to say that differences in standards for counting ballots meant unequal protection under the amendment. By this reasoning, the whole election, in all 50 states would have to be ruled unconstitutional, since there were a myriad of voting methods in all states. Furthermore, given the differences in voting methods in Florida, and that the purpose of hand counting the ballots was to remedy the unfairness that resulted from this, how could the U.S. Court decide that this was unconstitutional?...
Another issue with regard to this decision is that the Justices took it upon themselves to decide what the deadline date for counting the ballots would be. There was no reason that they couldn't have allowed it to go until the 18th, as provided for in our Constitution. The only problem would have been that if the electors were not chosen before the 12th, that meant that they could be challenged by Congress. It seems to me that that would be a decision that the Florida Supreme Court should rightfully make. But no, these scumbags knew whom they wanted to win this election, and they weren't going to allow for any loopholes.
Then, to pile hypocrisy upon hypocrisy, they said that they wanted to make it clear that this decision of theirs applied only to this one very specific case and should not be taken to set a precedent.
As one of the four dissenting judges, John Paul Stevens, said of this case:
We will never know for sure who really won this election (He was wrong about that one – We do know, and it was
Gore). But it is evident who the losers are - the American people, who have thus been given reason to lose all confidence in the judge as the arbiter of justice in our system of government.
I think that that is about as close as a Supreme Court Justice ever came to publicly calling one or more of his colleagues a hypocrite and a disgrace to the US Supreme Court.
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