Sunday, February 21, 2016

Scalia Was an Intellectual Phony and a Bigot

Some say that is it bad form to speak ill of the dead.  I take the position that it is even poorer form to lie and speak well of those who don't deserve to be lauded simply because they are no longer among the living.  This latter concept is lost on those gushing with kind words for the late Antonin Scalia who, contrary to what one is hearing now, wasn't a brilliant jurist.  He was instead a pompous bigot in love with his own perceived but non-existent brilliance.  The constitutional rights of the many took a back seat to Scalia's own racial and religious prejudices and a number of his positions have lead to some of America's current problems, such as the horrific Citizens United decision and the unrestrained gun rights now pushing deaths by gun violence to exceed automobile accident deaths.  Americans should be giving a shy of relief with the man gone. A piece in Salon looks at the truth about Scalia's less than brilliant career.  A second piece looks at Scalia's undisguised animus toward LGBT Americans.  First, these highlights from Salon:

 Scalia was not a great judge: he was a bad one.  And his badness consisted precisely in his contempt for the rule of law, if by “the rule of law” one means the consistent application of legal principles, without regard to the political consequences of applying those principles in a consistent way.

One of Scalia’s many obnoxious qualities as a jurist was his remarkably pompous, pedantic, and obsessive insistence that the legal principles he (supposedly) preferred – textualism in statutory interpretation, originalism when reading the Constitution, and judicial restraint when dealing with democratically-enacted legal rules – were not merely his preferences, but simply “the law.”

Given that those principles are and always have been controversial among American judges, lawyers, and politicians, insisting that they ought to control judicial interpretation as a matter of definition makes about as much sense as arguing for the desirability of, say, a particular income tax rate by claiming that the advocate’s preferred rate simply is the “true” rate (in other words it’s a nonsensical argument on its face).

But this kind of question-begging nonsense was the least of Scalia’s judicial faults.  For the truth is that, far more than the average judge, Scalia had no real fidelity to the legal principles he claimed were synonymous with a faithful interpretation of the law.  Over and over during Scalia’s three decades on the Supreme Court, if one of his cherished interpretive principles got in the way of his political preferences, that principle got thrown overboard in a New York minute.

will give just three out of many possible examples.  In affirmative action cases, Scalia insisted over and over again that the 14th Amendment required the government to follow color-blind policies.  There is no basis for this claim in either the text or history of the amendment.  Indeed Scalia simply ignored a rich historical record that reveals, among other things, that at the time the amendment was ratified, the federal government passed several laws granting special benefits to African-Americans, and only African-Americans.

No honest originalist reading of the Constitution would conclude that it prohibits affirmative action programs, but Justice Scalia was only interested in originalism to the extent that it advanced his political preferences.

Similarly, the men who drafted and ratified the First Amendment would, it’s safe to say, been shocked out of their wits if someone had told them they were granting the same free speech rights to corporations they were giving to persons.   Again as a historical matter, this idea is an almost wholly modern invention: indeed it would be hard to come up with a purer example of treating the Constitution as a “living document,” the meaning of which changes as social circumstances change.  In other words, it would be difficult to formulate a clearer violation of Scalia’s claim that the Constitution should be treated as if it is “dead dead dead.”

Finally, and most disgracefully, Justice Scalia played a key role in the judicial theft of the 2000 presidential election.  He was one of five justices who didn’t bother to come up with something resembling a coherent legal argument for intervening in Florida’s electoral process.  A bare majority of the Court handed the election to George W. Bush, and the judges making up that majority did so while trampling on the precise legal principles Justice Scalia, in particular, claimed to hold so dear: judicial restraint, originalist interpretation, and respect for states’ rights.

These examples are not rare deviations from an otherwise principled adherence to Scalia’s own conception of the rule of law: they were the standard operating procedure for the most over-rated justice in the history of the United States Supreme Court.

As for the piece looking at Scalia's animus toward LGBT citizens, here are excerpts:

It’s a blessed thing for a great many that Scalia is off our high court, though even in death, he continues to bring harm to many who may be silently thankful for his departure.

Our nation is home to an estimated 16 million lesbian, gay, bisexual and transgender individuals, an estimate based on a conservative 5 percent of the current U.S. population of 319 million. Scalia targeted, marginalized and slurred our community so often and so routinely, his hatred of LGBT Americans became something of a caricature.  But for us, it was no joke.

It’s important to understand that his bigotry was not only deeply felt, but had the ability to dramatically impact those who were its target.

Had Scalia had his way, for instance, laws criminalizing consensual homosexual sex in the privacy of the homes of consenting adults would still be in force in many states. See his ugly dissent in Lawrence v. Texas for proof, where he compares homosexuality to prostitution, bestiality, heroin use and incest.

To Scalia, such progress not only represented bad law, he didn’t consider LGBT Americans worthy of legal recognition or protection. He thought it entirely appropriate that Americans and their governments be allowed to discriminate against gays and lesbians, that the “moral opprobrium that has traditionally attached to homosexual conduct,” as he called it, was just and right. Expressing animus toward LGBT individuals and conduct was perfectly fair, to Scalia.

Given that, he saw no problem in denigrating our relationships and lifetime commitments, describing them as no different than roommate situations. He thought laws banning employment discrimination based on sexual orientation or gender identity amounted to undeserved “special rights.”

And he argued that “deviate sexual intercourse with someone of the same sex” deserved no protection under the law, that states were well within their rights to make such relations illegal and to arrest and prosecute those engaging in such sexual activity.

Rather than mellowing with age, Scalia and his anti-gay bigotry seemed only to sharpen over the years. 
Simply put, America is a far better place with Antonin Scalia no longer among the living.  If there is a Hell, I suspect Scalia is now occupying his reserved seat.  

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