Tuesday, February 16, 2016

Shed no tears for Antonin Scalia: Let us not praise the man who gave us Citizens United and Bush v Gore

Antonin Scalia was one of the most profoundly dishonest men in the history of American public life. He made Richard Nixon seem almost quaint by comparison.  But that’s not the impression being broadcast to the world today.

Scalia’s death has let forth an elite love fest of such remarkable intensity, you’d think he was war criminal Henry Kissinger. The love—on MSNBC as much as anywhere—came almost as fast as the GOP determination not to allow Obama to appoint his successor. Folks might disagree with what he had to say from the bench, but hey! He was such a nice guy! Best buds with Notorious RBG!  How could you say anything mean about him?

Maybe if you weren’t an elite lawyer, or media commentator, but rather someone to had suffer as a result of his bigoted cruelty?  Maybe then you’d see things a bit differently, if you were someone close to Leonel Herrera, or Anthony Davis.  Who are those men, you say?  Two men facing execution with credible claims of actual innocence, that’s who. 

If the law does not protect the innocent, then it’s hard to conceive what the law is for. Yet, Scalia—so deeply devoted to the rule of law—repeatedly held that it did not. In his 1993 concurrence in Herrera v. Collins he wrote:

There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction. 

Sixteen years later, in the case of Anthony Davis, after seven key eyewitnesses recanted their testimony, some fingering a man who testified against Davis, Scalia wrote:

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. 

So you’re innocent? So what? That was Scalia’s “judicial philosophy” in a nutshell.  He was the giant of the conservative legal world for three decades—its Ronald Reagan—and that’s precisely what he stood for.  That’s what the conservative legal world stands for.

So maybe if you weren’t an elite lawyer, or media commentator, but rather someone a little closer to the  Leonel Herreras or Anthony Davises of the world, then maybe then you’d see things a bit differently. Someone like Jessica Pieklo, say, senior legal analyst at RH Reality Check. “So I have thoughts on why Scalia’s sarcasm wasn’t endearing. For starters he always punched down, even when mocking the govt,” she tweeted. “And you know what is often the tone of privilege: sarcasm. Only folks really protected can snark to power without consequence.”

“Angle Bargle is great legal snark. But it comes from a man who made a career out of making the law inaccessible to most,” she continued. “So excuse me while I sit the respected jurist tributes out. This is a man who made the most of exploiting his power.”

A few examples come readily to mind. He not only held that the law does not protect the innocent, but also that fundamental rights—such as (gay) marriage (Obergefell v. Hodges and abortion (Planned Parenthood v. Casey)—should be subject to state-level majority votes, that unlimited corporate campaign spending is something “we should celebrate rather than condemn,” (Citizens United), that vote-counting should be halted for causing “irreparable harm” to the candidate who might lose as a result, even while supposedly being done on behalf of those same voters (Bush v. Gore), that protecting the right to vote is an odious example of “racial entitlements” (comments related to Shelby County v. Holder), and that allowing local anti-discrimination laws to protect gays and lesbians amounts to “special treatment of homosexuals” (Romer v. Evans), just to hit a few of more easily summarize highlights of his ignominious career.

The Bush v. Gore decision is in a class all by itself—and understandably unsigned.  But Scalia just couldn’t leave bad enough alone, as Renata Adler commented when the case was still fresh:

In his concurrence, Justice Scalia did not trouble for a moment to consider whether the threatened injury to Bush if the counting continued outweighed the damage to Gore if it did not. Scalia went straight to “irreparable harm.” If the manual count continued, he said, it “does in my view threaten irreparable harm to the petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.”

Well, there it is. The irreparable harm of “casting a cloud.” In the long and honorable tradition of injunctions and stays, this “irreparable injury” is a new one. Not just a cloud, but a cloud on “what he claims to be the legitimacy” of what he is claiming. By that standard, of course, every litigant in every case should be granted an injunction to halt the proceeding that offends him: the prosecutor casts a cloud on a claim of innocence; the civil plaintiff, a cloud on the defendant’s claim that he has already paid him. And of course vice versa, the defendants casting clouds on plaintiffs and prosecutors. The whole adversary system consists of a casting of clouds.

There’s a reason Scalia said, “Get over it,” when questioned about the case. He had no defense. What else could he say to defend this ridiculous farrago? 

Aside from Bush v. Gore, any of the other above-mentioned cases can be examined more carefully to reveal a mixture of tight legal arguments (where Scalia’s the author of an opinion) interspersed with off-the-wall flights of imagination, found in both his written opinions and his oral arguments, as well as related public statements that have surfaced from time to time. 

Alternatively, as in Citizens United, there’s a jaw-dropping imaginative absence. Scalia’s concurrencedoes not mention “money” even a single time. It mentions “speech” 31 times.  The best way to make a ridiculous argument stick is to never let it come up at all.  Indeed, Scalia quite deliberately confuses money with speech when he writes, “Moreover, if speech [corporate campaign spending] can be prohibited because, in the view of the Government, it leads to ‘moral decay’ or does not serve ‘public ends,’ then there is no limit to the Government’s censorship power.”  It’s an tight legal argument, if and only if you buy the implicit fantasy that money equals speech. Otherwise, Scalia’s argument falls apart like a house of cards. The limit to government power is the bright line between money and speech—the same bright line that campaign finance law had recognized for a century before Citizens United destroyed 100 year of precedent. 

But that’s just the way Scalia rolls. His imaginative posturing never compromises with reality. In Obergefell, he even pretended not to care about gay marriage that much. It was “the threat to democracy” that had him wound up to  a fever pitch:

I join The Chief Justice’s opinion in full. I write separately to call attention to this Court’s threat to American democracy.

The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes… 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. 

Full story at. 


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