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

Scalia let the innocent die, trampled our basic rights, gutted democracy and gave us George W. Bush. Good riddance

By Paul Rosenberg

Contributing Writer

Published February 16, 2016 11:00AM (EST)

Antonin Scalia             (Reuters/Kevin Lamarque)
Antonin Scalia (Reuters/Kevin Lamarque)

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 concurrence does 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.

It's the exact same tyranny we saw with Brown v. Board of Education. I'm sure of it!

Still, Scalia's claim not to care much about gay marriage is perhaps the least credible lie he's ever told, given his long-held, bone deep-deep animosity.  In Romer v. Evans, for example, he puts together extensive lines of argument which hinge on things like this casual, matter-of-fact claim that homosexuality is like murder:

I had thought that one could consider certain conduct reprehensible--murder, for example, or polygamy, or cruelty to animals--and could exhibit even "animus" toward such conduct. Surely that is the only sort of "animus" at issue here: moral disapproval of homosexual conduct.

Scalia's “others”—whoever they may be—could always turn potentially lethal in his fervid imagination. In a similar frame of mind—in a speech, not a legal opinion—he darkly, though ambiguously, compared judges and justices he disagrees with to those in Nazi Germany:

Scalia opened his talk with a reference to the Holocaust, which happened to occur in a society that was, at the time, “the most advanced country in the world.” One of the many mistakes that Germany made in the 1930s was that judges began to interpret the law in ways that reflected “the spirit of the age.” When judges accept this sort of moral authority, as Scalia claims they’re doing now in the U.S., they get themselves and society into trouble.

There's nothing wrong, in principle, with the combination of rigor and imagination. But, of course, Scalia claims to stand solidly against imagination. As well he should: his fantasy indulgences often read like something straight out the rightwing blogosphere.  But he seemingly just couldn't help himself, even though the whole point of his textual originalism was to beat back the seductive lures of imagination that will deliver us all to Auschwitz.

That brings us to another key point: Scalia's textual originalism was bunk.  This was blindingly obvious in one of his most high-profile decisions, District of Columbia v. Heller, which found an individual right to bear arms in the Second Amendment, but only by studiously ignoring the original text, “A well regulated militia being necessary to the security of a free state.”

In defense of that ruling, Scalia was lead to co-author a book, Reading Law: The Interpretation of Legal Texts, which was the subject of withering critique by Judge Richard Posner, “The Incoherence of Antonin Scalia.” Posner, an appellate judge, is widely regarded as the most prominent conservative jurist not serving on the Supreme Court, which is what makes this critique of Scalia so uniquely compelling. It pokes several gaping holes in Scalia's claims for textual originalism: its non-existent long heritage, its inadequacy in example cases provided in the book, but above all, the consistency of the authors themselves:

A problem that undermines their entire approach is the authors’ lack of a consistent commitment to textual originalism. They endorse fifty-seven “canons of construction,” or interpretive principles, and in their variety and frequent ambiguity these “canons” provide them with all the room needed to generate the outcome that favors Justice Scalia’s strongly felt views on such matters as abortion, homosexuality, illegal immigration, states’ rights, the death penalty, and guns.

In other words, “textual originalism” is just a cover story. Scalia is actually up to is something else entirely: achieving “the outcome that favors Justice Scalia’s strongly felt views.” His signature theory—which could be useful as one tool among many—is nothing but a scam in the form that he presents it.

This, then, is the supposed great conservative legal mind of our time, its Ronald Reagan, as mentioned above. But Political scientist Corey Robin suggested a more realistic view, in response to his passing, “Scalia: The Donald Trump of the Supreme Court”:

Scalia is the id, ego, and super-ego of modern conservatism. He was as outrageous in his rhetoric (his unvarying response to any challenge to Bush v. Gore was “Get over it!”) as he was cruel in his comportment.... Even Clarence Thomas was forced to note dryly, “He loves killing unarmed animals.” He was a pig and a thug. ([Cass] Sunstein, by contrast, believes“he was a great man, and a deeply good one.”) And he was obsessed, as his dissent in PGA Tour v. Casey Martin shows, with winners and losers. They were the alpha and omega of his social vision. He was the Donald Trump of the Supreme Court.

Robin goes on to summarize and link to a series of four blog posts containing a chapter of his book The Reactionary Mind devoted to Scalia. One post is particularly worth noting here, the one in which Robin calls Scalia an “Affirmative Action Baby,” citing the special treatment he received from his colleagues as one of three key components in why he came to have such an outsized influence on the legal culture of our time. "Scalia is often a pig, mocking his colleagues’ intelligence and questioning their integrity," Robin noted, and this is anything but a minor side of his personality. It is a key to his power, resting on power itself, properly—or improperly—deferred to by other. 

"For starters,” Robin argued, “Scalia has the advantage of a straightforward philosophy and nifty method," though this much more of a racket than a reality, as the Heller decision and Posner's critique serve to show. Still, it can be all the more effective precisely because it's a scam, a con. Secondly, Scalia fits the needs of conservative power in our time:

Scalia, it turns out, is not nearly the iconoclast he thinks he is. Far from telling “people what they don’t like to hear,” as he claims, he tells the power elite exactly what they want to hear, that they are superior and that they have a seat at the table because they are superior.

Telling the power elite what they want to hear: Money is speech, and the First Amendment is all about protecting you!  That's exactly what the Citizen's United decision said at its core. It describes Scalia's racket to a 'T.'

But third—and arguably most importantly—is "the patience and forbearance, the general decency and good manners, his liberal colleagues show him," about which Robin goes on to say:

The fact may be small and personal, but the irony is large and political. For Scalia preys on and profits from the very culture of liberalism he claims to abhor: the toleration of opposing views, the generous allowances for other people’s failings, the “benevolent compassion” he derides in his golf course dissent. Should his colleagues ever force him to abide by the same rules of liberal civility, or treat him as he treats them, who knows what might happen? Indeed, as two close observers of the Court have noted—in an article aptly titled “Don’t Poke Scalia!”—whenever advocates before the bench subject him to the gentlest of gibes, he is quickly rattled and thrown off his game. Prone to tantrums, coddled by a different set of rules: now that’s an affirmative action baby.

Which is why we really shouldn't dream of treating Scalia respectfully, the way the media sycophants are insisting that we must.  He's Donald Trump, not Ronald Reagan. He should be treated accordingly.

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By Paul Rosenberg

Paul Rosenberg is a California-based writer/activist, senior editor for Random Lengths News and columnist for Al Jazeera English. Follow him on Twitter at @PaulHRosenberg.

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