Monday, February 15, 2016

February 15, 2016--Anton Scalia "Originalist"

I know I should hold back from criticizing Associate Supreme Court Justice Anton Scalia. That I should pause to honor him and his service, but since so many are already speculating about his place in history and his successor--principally whether or not Barack Obama should nominate one or capitulate in advance to Republicans in Congress who want him to stand aside and let the next president do the appointing--it is hard to sit still and listen to Scalia's being overpraised, even canonized.

This of course is not unusual when a person of stature dies, but to picture him as a towering, even historic figure, to extoll his scholarship, is beyond anything that should go unchallenged, even during this period of mourning.

Yes, he was influential as a result of his ability to cow colleagues, most notably Clarence Thomas, and his assertion that he was the one true conservative "originalist" on the court. A judicial practice that seeks to apply how the Constitution's framers' original words should direct appellate court decisions.

In truth, since it is not possible to interrogate the Framers to see how we should deal with issues not explicitly mentioned in the Constitution--among others the use of the electric chair, women's and gay rights, automatic weapons, and abortion--Justice Scalia worked backwards in his search for logic and precedents to bolster his opinions and dissents. Backwards because he began with pre-determined conclusions and then searched for so-called originalist evidence (evidence that did not exist and thus often was made up by him) to justify those conclusions.

This is the way so much of our political discourse proceeds and in this Scalia acted more like an ideologue or political operative than a dispassionate judge seeking the truth. Most often with him the truth was what he arrogantly determined it to be. Not the Framers.

Two examples--

Bush v. Gore, the SCOTUS decision that gave the 2000 presidential election to George W. Bush.

The Constitution could not be more explicit about how it is up to the states, via the Tenth Amendment, to manage and adjudicate local electoral disputes, including in federal elections. Rather than allow that process to culminate in Florida within the state's supreme court, the U.S. Supreme Court, under Scalia's leadership, shopped around for originalist rationalizations that permitted the nation's highest court to abrogate a state's right to complete it own constitutional judicial review of the legitimacy of the vote in Florida.

Scalia wanted Bush elected, that's where he and four of his Republican colleagues began their deliberations, then they shopped around for arguments to prop up their ultimate shaky decision.

There would not have been a President George W. Bush if there hadn't been a Justice Scalia and, lest we forget in this election cycle, brother Jeb!, then governor of Florida, and his corrupt Secretary of State. Remember Katherine Harris?

Also to illustrate, there is Anton Scalia's originalist interpretation of the Second Amendment, which states--"A well regulated Militia, being necessary to the security of a free State, the right of people to keep and bear Arms, shall not be infringed."

Even a well taught high school student knows that this amendment gives citizens the right to bear arms only in order to participate in the formation of a well regulated militia. It does not confer the absolute right to bear arms even for self protection. It was written that way because our Founders and the Constitution's Framers were leery of the new nation, in contrast to countries such as England and France, having a potentially oppressive standing army that could be mobilized by unscrupulous rulers to abrogate citizens' freedoms.

In District of Columbia v. Heller, again with Scalia leading the way, the Court held that the government is essentially powerless to prohibit or restrict weapons in "common use." The majority wrote that this right to bear arms "is not defined by what the militia needs, but by what private citizens commonly possess."

This is a gross misreading of the Second Amendment.

This notion of common possession is nowhere to be found in the text, structure, or history of the amendment. This unprecedented, idiosyncratic notion of "possession," gives gun makers and individuals--not legislatures or even the courts--the power to determine public policy.

This finding feels about as far away from anything considered to be originalist as one can imagine. But once again, Justice Scalia, with tortured logic and an ideological distortion of constitutional history, more through bluster than dispassionate argument, held the day and Heller was decided in the affirmative.

Yes, Anton Scalia could be charming, loved opera, apparently and unpredictably befriended Ruth Bader Ginsberg, but a towering legal mind? An historic figure? A "lion of the court"? Mourn his death as we would anyone's who died a bit prematurely, but let's get a grip on all the unstinting praise.

In spite of the conservative criticism of "activist" judges "legislating from the bench," since 1986 when he was appointed to the Court by President Reagan, that well describes what Justice Scalia had been doing up until this weekend.

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Anonymous Lisa said...

Great entry. Thanks for all that research.

February 20, 2016  

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