Monday, February 15, 2016

Scalia is dead. Good riddance.

I know it's bad form to speak ill of the dead, particularly those who have dedicated their lives to public service, but I'm sorry, Antonin Scalia was not the great scholar and man of principle that some pundits are making him out to be.  He was a delusional hypocrite, and in the position of power he occupied with no one to answer to but the Reaper, he was dangerous.  I would rather have seen him impeached than dead, but if God wants to fill in where Congress fails to act, well, who am I to question His judgement?

What made Scalia delusional was that he believed he knew the One True Way to interpret the Constitution, and that the One True Way was Originalism.  What made him a hypocrite was that he was perfectly willing to chuck originalism out the window when it didn't lead to the result he wanted.

One could surely write a book about Scalia's hypocrisy, but I don't have time for that so I'll just cite a few particularly egregious examples.  Let's start with Gonzales v. Raich.  That was the case where the Court ruled, with Scalia concurring, that the Commerce Clause gives Congress the power to make it illegal for an individual to grow marijuana for personal medical use even in a state where such use is legal under state law.  That this is untenable under an originalist interpretation of the Constitution is so obvious that a first-year law student would have no trouble making the case.  You may recall that the U.S. federal government tried to impose prohibition once before, but before that first disastrous experiment could be conducted the U.S. had to pass the 18th amendment to the Constitution.  Manifestly then, prohibition was not among Congress's enumerated powers prior to the passage of the 18th amendment.  There are only two possible ways you can squeeze a prohibition power out of the Commerce Clause: you can read something into it that the founders clearly did not intend, or you can argue that the whole sordid affair of passing the 18th amendment and then repealing it again 13 years later was unnecessary, just a colossal waste of time because not a single legal mind in the entire country realized that Congress could just, you know, pass a law.

Another example that sticks in my craw because it hits close to home is Scalia's blatant disregard for the separation of church and state.  In October 2014, Scalia gave a speech where he said:
I think the main fight is to dissuade Americans from what the secularists are trying to persuade them to be true: that the separation of church and state means that the government cannot favor religion over nonreligion. That’s a possible way to run a political system. The Europeans run it that way, and if the American people want to do it, I suppose they can enact that by statute. But to say that’s what the Constitution requires is utterly absurd.
This past January he doubled down on that position:
Government support for religion is not only justified by the Constitution, it was the norm for hundreds of years... 
Slavery was the norm for hundreds of years too, but let's not get sidetracked here.  Let's look at Scalia's claim that government support for religion is justified by the Constitution.  Where exactly is that justification?  The word "God" does not appear anywhere in the Constitution.  The word "religion" appears once, in the First Amendment:
Congress shall make no law respecting an establishment of relgion...
And then the word "religious" appears once: religious Test shall ever be required as a Qualification to any Office or public Trust under the United States
And that's it.   So where exactly is the Constitutional justification for Scalia's claim that government support for religion is justified by the Constitution?  It's not there.  He has to extract it from history somehow, which I suppose is not entirely unjustifiable, except that whenever someone does the exact some thing to support a position that he opposes, all of a sudden that's not allowed:
One case was Romer v. Evans, in which the people of Colorado had enacted an amendment to the state constitution by plebiscite, which said that neither the state nor any subdivision of the state would add to the protected statuses against which private individuals cannot discriminate. The usual ones are race, religion, age, sex, disability and so forth. Would not add sexual preference — somebody thought that was a terrible idea, and, since it was a terrible idea, it must be unconstitutional. Brought a lawsuit, it came to the Supreme Court. And the Supreme Court said, “Yes, it is unconstitutional.” On the basis of — I don’t know. The Sexual Preference Clause of the Bill of Rights, presumably. And the liberals loved it, and the conservatives gnashed their teeth.
Just for the record, the justification for ruling an a priori license to discriminate against gays to be unconstitutional is the equal protection clause of the fourteenth amendment.  To which Scalia's response was not to explain why he didn't think this was a valid argument, but rather simply to stick his fingers in his ears and say, "Nah nah nah I can't heeeeaaaar you!"

Like I said, one could write a book.  I'll just point out one final example of Scalia's hypocrisy, one which was particularly egregious and consequential.  When it came to issues like abortion and gay rights, his unwavering position was that these issues should be left to the states and to the democratic process.  (I suppose that if one could somehow muster the votes to repeal the 13th amendment, Scalia would have had no problem with that.)  He was constantly complaining about how activist liberal judges were legislating from the bench.  But he had no problem being the deciding vote when it came time to appoint a Republican President of the United States from the bench.

If that's not enough to convince you that the Scalia-worshipping emperor has no clothes, there's this:
This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent
It is hard to imagine a more despicable thing a human being could say.  Not only is Scalia saying that executing innocent people is OK as long as they've had a "fair trial" (whatever the hell that could possibly mean in a situation like this), but he's trying to fob the responsibility of it onto "this court" as if he had nothing to do with this sorry state of affairs!  And besides, how could there possibly be any more cruel and unusual punishment than executing an innocent person?


Antonin Scalia was the Donald Trump of the Supreme Court: obnoxious, hypocritical, and dangerously muddled in his thinking.  He made for great entertainment, but absolutely terrible law.  May he rest in peace and trouble us no more.


Don Geddis said...

I have to admit, that in the last few days I've been watching some video of him, and I do find some of his principled approach compelling. The idea that political and societal change should occur through the legislatures rather than through the courts, is compelling. He would claim to separate his personal values, from a possible goal of societal change, from a process perspective that the Constitution itself demands outlawing very little by the courts.

But hypocrisy is a damning and fatal flaw, for a principled stance. If he only follows principles when they lead to outcomes he wants, then it isn't really a principle at all.

Abortion is possibly defensible. (Whether you are pro or con, he suggests it isn't a topic that the Constitution has an opinion about, and therefore should be left to the states.) But he pretty clearly seemed personally offended by gay rights, and did seem to reach quite a bit to find legal justification for indulging in his preferences.

Religion looks like another good one, where he does not appear to be following his claimed philosophy.

Don Geddis said...

Also, this Piers Morgan interview. "How do you continue to be so pro- death penalty?" Scalia: "I'm not pro! I don't insist that there be a death penalty." He claims only that the Constitution doesn't say that states cannot have a death penalty. "What about waterboarding?" "I'm not for it. But I don't think the Constitution says anything about it."

That's actually a pretty convincing argument, to attempt to remove the courts from the business of being just another vehicle for political change. I approve of the idea of deciding legal judgments based on legal language, and leaving aside your personal preferences about what direction you yourself wish society to go.

The main sad part is the hypocrisy. It seems he was unwilling to decide on narrow legal grounds, for issues that he personally felt strongly about.

Ron said...

> I approve of the idea of deciding legal judgments based on legal language, and leaving aside your personal preferences about what direction you yourself wish society to go.

If only that were possible. You should read this:

> "What about waterboarding?" "I'm not for it. But I don't think the Constitution says anything about it."

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

"No state shall... deprive any person of life, liberty, or property, without due process of law"

On a strict reading of the text, you could argue that the eighth amendment is meaningless and hence null and void because it fails to define "cruel and unusual." And you could argue that while the *states* are enjoined from depriving anyone of life, liberty or due process, the federal government is not because it says "No state shall..." Is that really a position you want to argue for?

Robert Bork tried to make that argument with respect to the ninth amendment. It rightfully cost him a seat on the Court.

Anonymous said...

Excellent post, Ron; you city many good examples of Scalia's hypocricy. Another good resource is “10 of the most harmful and disastrous opinions of Antonin Scalia's career - with quotes”: the source for what follows.

His dissent in Obergefell includes this: “So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”

WTF? That is exactly the problem with the holding in Bush v. Gore in which he joined.

The fulsome posthumous praise for Scalia from Obama is a bit disgusting.

A truth-speaker would have to say that he was not a great jurist but a crackpot, with an obviously bad idea of what the remit of our final arbiters of law (short of achieving 2/3 of both houses and 3/4 of states) should be. But I do understand that that kind of truthspeaking is impolitic under current norms. Too bad. The truth is too important.

Don Geddis said...

Ron: The article "The Myth of the Rule of Law" by John Hasnas was fascinating! Thanks for the link. I'll admit, I hadn't quite appreciated the nature of law itself that he describes, and the examples were quite thought provoking. I'm not sure I'm convinced yet, but I'll certainly admit that my confidence has downgraded to mere confusion. (There'a also the part at the end sections, where he tries to promote a kind of free-market law. I'm not even sure that I fully understand what that would mean, in detail, to be either for or against the proposal.)

Publius said...

Beams of Light

Ah, more spraying of ignorance by the Ramblings.

Scalia wasn't an originalist, he was a textualist.

It's odd you would pick out Gonzales v. Raich,a 6-3 decision in which he concurred with the liberal justices. Apparently you're more ideologically aligned with Justice Thomas, who dissented. You would also disagree with the 9th Circuit Court of Appeals, who, informed by Gonzales v. Raich, decided for the government in United States v. Stewart.

Just because alcohol prohibition was enacted by amendment doesn't mean that Congress didn't have that power through the Commerce Clause. Indeed, Congress passed the Wartime Prohibition Act prior to the ratification of the 18th amendment. You might also want to look at the section 2 of the 21st amendment:

Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Do you see that - "is hereby prohibited"? Prohibited? That's why there are still dry communities in the United States. In addition, the Federal government still regulates the distilled spirits within your home.

Your comments on the separation of church and state are simply ignorant of the european approach to secularism that he is constrasting to the American tradition. In europe, the state isn't simply neutral toward religion but must banish all things religious, including religious arguments, from the public square (in France, a formal policy called laïcité).

Then it's curious you would bring up Bush v. Gore, as this decision was based on the Equal Protection Clause you love so much - and the vote was 7-2 on this point.

Finally, you curiously post a link to an article about Scalia's statement on the Supreme Court never having ruled . . . Constitution forbids the execution . . . 'actually innocent'. Yet the article concludes that Scalia's statement was correct!. You're arguing against Scalia by posting evidence in favor of him.

You need to get over your feeling that hypocrisy is the greatest ethical lapse. It makes you sound like a Pharisee.

Ron said...

> Scalia wasn't an originalist, he was a textualist.

Well, Scalia thought he was an originalist, and I'm not going to argue with him about it:

> Apparently you're more ideologically aligned with Justice Thomas, who dissented.

Yes. I wrote about this at the time.

and then again:

I vehemently disagree with Thomas about most things, but at least he's not a hypocrite. I respect him for that.

> Just because alcohol prohibition was enacted by amendment doesn't mean that Congress didn't have that power through the Commerce Clause.

Everyone certainly thought so at the time. Why would they bother with an amendment if they thought it wasn't necessary? Why not just pass the Volstead Act directly?

> Congress passed the Wartime Prohibition Act prior to the ratification of the 18th amendment

I can't find any reference to the "Wartime Prohibition Act" outside the article you linked to. But even that article says that it "went into effect on June 30, 1919. By then, the 18th Amendment had been ratified..."

> In europe, the state isn't simply neutral toward religion but must banish all things religious

Yeah? So? Here the government must merely be neutral. But Scalia didn't want it to be neutral, he wanted it to actively promote religion, which is to say, to actively discriminate against non-believers.

> Then it's curious you would bring up Bush v. Gore, as this decision was based on the Equal Protection Clause you love so much - and the vote was 7-2 on this point.

Bush v Gore is such a hopeless quagmire that it will never be sorted out. But I don't understand why you think that the 7-2 vote has anything to do with my critique of Scalia's hypocrisy.

> Yet the article concludes that Scalia's statement was correct!.

You have completely missed the point. Of course his statement was correct. But Scalia was not just an average citizen, or even an average legal scholar when he made this statement, he was a sitting Justice. Scalia's statement was correct in no small measure because Scalia believed it should be correct. If he'd followed up with, "And this is an egregious oversight which we must correct at the earliest opportunity because executing actually innocent people is clearly a violation of the eight amendment" and then voted accordingly I would have had no quarrel with him. But he didn't because the fact of the matter is that he believed that executing innocent people was just hunky dory provided they'd had a "fair trial."

> You need to get over your feeling that hypocrisy is the greatest ethical lapse.

And you need to read Job 17:8 and 20:5 and 27:8 and 34:30 and 36:13 and Isaiah 33:14 and Matthew 6 and 24:51. On this issue I stand with God.

Peter Donis said...

I've often enjoyed reading Scalia's dissents, not because I agreed with him but because he at least made some effort to be an entertaining writer. But I think you're right that he really had no defense against the hypocrisy charge. When the DOMA case was up for decision, I blogged about this:

I compared Scalia's stated position on abortion with the position I expected him to take in the DOMA case (and which, sure enough, he took in his dissent):

• Abortion: the Constitution says nothing about it, and long-standing tradition of our society opposes it, so we should let the States decide; the Supreme Court should get out of this area.

• Same-sex marriage: the Constitution says nothing about it, and long-standing tradition of our society opposes it, so we should not let the States decide; the Supreme Court should uphold a Federal law that imposes a uniform definition of marriage, for purposes of all Federal laws and regulations, with which not all States agree.

Don Geddis said...

Tom the Dancing Bug takes on Scalia's originalism.

Ron said...

One of Scalia's former law clerks has weighed in too.

Unknown said...

In Canada we had problems with the Harper Conservatives before they were turfed out of office last year. They took the typical right-wing approach to condemning "judicial activism", and even publicly criticised our Chief Justice. However, Canada has not had the same kind of loony constitutional interpretation problems that the US has had. You guys in the US are probably fated to continue the same bullshit until the sun goes cold. Check out the latest NY Times article on Senator Charles E. Grassley's excoriating of your Chief Justice. From my perspective this stuff is just as loony as Biblical fundamentalism. It relies on a deep-rooted belief that what the text says is totally unambiguous, and that only perverse judicial distortions can fail to see what the constitution says. There is no need to adopt an extreme postmodern view of text to recognize ambiguity in any text or language. All you need is a bit of common sense (which Republicans apparently lack).

In Canada there is a legal tradition of adaptation through time when construing the constitution. This is called the "living tree" doctrine. So, although our Supreme Court would not say it this bluntly, the operating principle in reaction to claims about what the Fathers of Confederation (our founding fathers) intended would be "who gives a fuck". This does not result in untrammelled imposition of policy choices by the Supreme Court, although right-wingers up here think so. I speak as a retired Canadian lawyer. But I'm not a constitutional expert, so it is entirely possible that I am quite mistaken. (Wouldn't be the first time.)

Don Geddis said...

@DJ Penton: "This does not result in untrammelled imposition of policy choices by the Supreme Court"

How do you know that? If the text itself does not force any clear interpretation, then what constraints are there, on an activist majority of the court making any ruling that they care to, based on non-Constitutional whims (i.e., politics)? Can you offer any evidence that the imposed policy choices are restricted in some way?

Unknown said...

Don: First of all, I should make clear that although I am not a constitutional expert, I spent several years working in a government legislative drafting office. That means that I was there, on the spot, when the words were put together. And, I can tell you for certain that those of us who put the legislative language down on paper understood that the words we were composing had some level of vagueness, and also ambiguity (which are thought to be different). Vagueness means, roughly, that there is some intentional wiggle room that allows a judge to adjust the ruling to the situation. Ambiguity, on the other hand, is usually taken to mean incoherency - inner contradiction of some sort. That happens when laws are drafted too, but usually not on purpose.

Unfortunately, it is not an unusual experience for a drafter to see, when the statutory language is put to effect in a court of law, that it can sensibly support interpretations that we (the drafters) did not imagine. Now, unless the people who drafted our constitution, and the US constitution, were divinely inspired, and the language they used was of a different sort of language altogether, it is clear to me that there are either or both of vagueness and ambiguities in that constitutional language.

Beyond that, though, if I understand your point, you seem to be advancing a false dichotomy. You seem to be saying that either the language in a text is completely unambiguous and plain on its face, or it has no clear meaning at all, and anything goes when interpreting it. That is simply false. You surely understand this from day to day experience with language. It is quite possible for your language, and mine, to range from plain and clear, to less plain and clear, to outright vague/ambiguous. Even the somewhat formalized natural language used in constitutions, statutes, private contracts, and so on can both constrain interpreters, and yet leave some aspects open to interpretation. If you have ever had to clarify anything you said or wrote, you will understand this. And, if you happen to be unavailable to supply the clarification, surely you don't think the recipient is therefore free to decide that your language means whatever springs to mind.

Unknown said...

Don: I'll supply a short example.

A tax statute contains this formula:

X = 2 + 400 * 5

Suppose there are no statutory rules specifically laid out about operator precedence, etc. And suppose that in the jurisdiction of interest, both left to right application and multiplication/division first are practiced. Then this number could be calculated as either 2010 or 2002. It's utterly ambiguous on its face. Does that mean the court can just make up any number it wants? Hardly. Only 2010 and 2002 are reasonable candidates. Some rules of interpretation will come into play. Context might apply - does one number make better sense in the overall context? Or, if that doesn't help, in Canada there is a rule that roughly goes "interpret in favour of the taxpayer". The text is ambiguous, but if this latter rule is applied, the court would find itself bound to pick the number that costs the taxpayer the least. And they do that kind of thing all the time. But the text is not "clear on its face", but it's not "anything goes". Because language works like that.

Don Geddis said...

@DJ Penton: I totally get, and agree with, everything you write in these two most recent comments. I think I was mainly reacting to your "who gives a fuck ... what the ... founding fathers intended"

Taken to an extreme, the example you need to worry about is a law that says "When guests arrive, we will only use China", and was originally intended to describe place settings at a dinner party. But later, an activist judge uses those words to require foreign relations with the country of China. And when you complain that the original meaning of the word "China", in that law, in context, when it was passed, from the perspective of all who were involved in voting for it, was about plateware and not about nations, the response you get is "who gives a fuck" about the original intent.

Basically, I think you radically underestimate the ability of a clever lawyer or judge, to invent rationalization for whatever policy they wish to advance (for political purposes). I found Ron's link to "The Myth of the Rule of Law" to be very compelling.

I agree with you, that language is forced to be vague and have ambiguities. But there is a huge difference between someone trying their best to identify "the most reasonable interpretation" of the words, vs. someone with an activist agenda who is searching for the best "just barely plausible" rationalization they can construct, to allow them to wind up with the conclusion that they've already decided on.

Your dismissal of "original intent" seems, to me, to put you way out on the spectrum of "we can probably find a way to justify just about anything".