The GOP Effort to Maintain A White Man’s Republic

Trump, Pence and Ross.

Numerous studies have shown that despite the myth that economic angst motivated whites to vote for Donald Trump in 2016, the real motivation was racial and a desire to protect white privilege and white political power.  Under Trump, the GOP has moved from dog whistle racism to overt and express calls to white racism and has emboldened white supremacists across the country.  Having spent last weekend in Charlottesville with family and attending my college reunion, that community remains traumatized over the actions of Trump emboldened white supremacists and Neo-Nazis - those who Trump called "very good people."  Sadly, as a piece in The Atlantic argues, the GOP agenda is to uphold white political power and domination at the expense of racial minorities. Now, the looming question is whether the Supreme Court will validate this effort by allowing the Trump/Pence regime to add a citizenship question to the U.S. census to skew the results to increase white representation.  Here are article highlights:

The disparate approaches taken by two of the Court’s conservatives to the Voting Rights Act reflect the right’s dueling impulses toward civil-rights laws. Where Scalia rejected the very effort to guarantee black people the same right to cast a ballot as white people as a “racial entitlement,” Roberts insisted that he agreed with the law’s underlying premises, but that the statute now did more harm than good.

Lingering beneath the surface was a defining question for the American right: Does it agree with Roberts that “any discrimination in voting is too much”? Or with Scalia, who saw ensuring equal participation in the polity as a black “racial entitlement”?

The Supreme Court’s looming decision over the addition of the citizenship question on the U.S. census will hinge on the answer to that question. The census provides the basis for congressional apportionment and the distribution of federal resources. Empirical studies of the impact of adding the question have determined that it would result in a dramatic undercount of Latinos and immigrants—exactly contrary to one of the Donald Trump administration’s stated rationales, that it would provide a more accurate count.

Since the rise of Trump, the American right has been offered a stark choice between the democratic ideals it has long claimed to believe in, and the sectarian ethno-nationalism of the president, which privileges white identity and right-wing Christianity over all. Scalia didn’t quite have it right: The fundamental question for American democracy since the founding has indeed been whether it is a “racial entitlement,” but only because of those who have tried for centuries to ensure that white people alone are entitled to it.

The Roberts Court has already taken steps in this direction. Last year it endorsed Trump’s travel ban, despite the president’s public statements identifying Muslims as the ban’s target, on the basis that the order itself did not mention religion, a blueprint for allowing further discriminatory efforts to pass constitutional muster as long as the high court’s conservatives retain control. Later that year, the conservative justices, self-styled champions of the freedom of religion, denied a request by a Muslim death-row inmate to have an imam present for his execution, forcing the condemned man to make do with the prison’s Christian chaplain. In both cases, the Court’s conservatives could hide behind the letter of the law in dismissing the government’s official disapproval of Islam. But recent revelations in the census case will force the Roberts Court to decide whether America is a nation for all of its citizens, or a white man’s republic.

On the surface, State of New York v. United States Department of Commerce appears to be a dry question of administrative and constitutional law. In January 2017, the news leaked that the Trump administration wanted to add a question asking census respondents whether they were American citizens. The Trump administration enlisted the acting head of the Civil Rights Division of the Department of Justice, John Gore, to state that the question should be included to improve enforcement of the Voting Rights Act. Wilbur Ross, the head of the Department of Commerce, which administers the census, insisted to Congress that this was the reason for the addition of the question. In fact, Ross had sought the addition of the question long before this rationale was provided.

A recent Court filing by groups challenging the addition of the citizenship question shows what the administration really had in mind. The filing shows that Thomas Hofeller, the late Republican redistricting expert, concluded that adding the citizenship question would, in his words, “be advantageous to Republicans and Non-Hispanic Whites.” That analysis was offered in a 2015 memo, as Hofeller was helping Republicans draw redistricting lines that they believed would cement a majority in Congress. That memo, along with a 2017 document written by Hofeller on the subject, which contains some language identical to a later Justice Department memo on the matter, was turned over to the liberal group Common Cause by Hofeller’s daughter after his death.

Voting districts are typically drawn using total population. A switch to using the voting-age citizen population would, Hofeller concluded in his 2015 memo, expand white political power at the expense of people of color, and thereby increase Republican advantage. But, Hofeller wrote, that shift could only occur with the addition of a citizenship question to the 2020 census, which would provide the federal government with data necessary for that switch.

In other words, long before Trump was even elected, Republican Party insiders were plotting to increase white political power at the expense of people of color. After Trump was elected, they implemented this plan by insisting that their actual goal was the protection of minority voting rights. As with the Voting Rights Act, there was the real reason and the stated reason, the truth and the pretext. . . . . “No one believes that anyone in this administration has any intention of enforcing the Voting Rights Act.”

The use of the Civil Rights Division, which was established to protect Americans’ fundamental rights, to undermine those very rights is a perversion of justice. But it also illustrates that Trumpism merely traveled a few stops down the road from where the Republican Party leadership had been. The risk with Trump was not that the GOP would become a vehicle for the preservation of white political and cultural hegemony; it was that he would discredit that project by making its agenda explicit, by saying, as Scalia did, the quiet part loud.

That the Republican effort to increase white political power might be motivated by partisanship rather than racism is little solace. . . . Whether motivated by partisanship or racism, though, the result is the same. If the Roberts Court does not draw a line here, this will not be the last step toward reestablishing a white man’s government it will be asked to take.

The census case does not hinge on whether the citizenship question is discriminatory. Rather, as a matter of administrative law, the executive branch must follow certain procedures before making decisions. The Trump administration’s blatant dishonesty settles the question of whether it followed procedure definitively: It did not.

“This kind of smoking-gun evidence of what the real illicit reason is behind a government action is incredibly rare. Court decisions don’t require it, and it’s really quite shocking to read it so explicitly,” Wendy Weiser, a voting-rights expert at the Brennan Center, told me. “Every procedural constraint on agency decisions was violated in this case, and the reason that was provided, every lower court found, was not the real reason that the secretary of commerce added the citizenship question.”

The census case is not ultimately about administrative procedure; it is, more fundamentally, about whether the Trump administration can use the federal government for the explicit purpose of increasing white political power. The Trump administration, and by extension, the conservative masses, are already on board, convinced by years of right-wing propaganda that all the opposition’s victories at the ballot box are suspect. Those elements of the Republican establishment that funded and conceived of the census scheme are all in, as well. The only remaining question is whether, and to what extent, the high court is willing to ratify this step toward white man’s government. It is not the first time it has been asked to do so.

Trump’s victory settled the question of whether the GOP would seek to expand its base by diversifying it, or rely on the imposition of white political hegemony over a changing electorate. This is a counter-majoritarian strategy that, in the long run, relies on abandoning the pretense of liberal democracy in favor of something else: A white man’s republic, if they can keep it.

Was Brett Kavanaugh’s Involved in Bush-Era Anti-Gay Marriage Agenda?

Having read U.S. Supreme Court decisions now for over 45 years, I have concern about justices who lack any apparent ability to show a shred of empathy for others and who feel that only their views and beliefs are correct and should, therefore, be imposed on the entire nation and its citizenry.  The late Antonin Scalia was such a justice.  Now, the nation is faced with privileged, white, straight male  nominee to the Court who sees Scalia as an icon and who just as frighteningly sees the occupant of the White House as basically above the law while in office.  That he was Trump's pick is no coincidence, in my view, especially due to his views on presidential exemption from prosecution and meaningful oversight.  Brett Kavanaugh also seems likely to favor the evangelical goal of rolling back LGBT rights and granting special privileges to those I call Christofascists.  Given the growing likelihood of Trump's criminality - and possible treason - being more fully exposed, Senate action on Kavanaugh's nomination needs to be delayed.  In addition, a more full review of his past actions, including the anti-gay marriage agenda launched by George W. Bush's administration, needs to be allowed.  At present, Republicans are opposing a full examination and suggesting there is something to hide from public review.  A column in Huffington Post argues why we need to know about Kavanaugh's past actions:

GOP leaders recently decided they wouldn’t request records that Supreme Court nominee Brett Kavanaugh authored, generated or contributed during his time as White House staff secretary under President George W. Bush. And they’re not budging from this position.

Their change in course came after a July 24 meeting between Trump White House counsel Don McGahn and Republicans on the Senate Judiciary Committee, the substance of which isn’t known. 

Last Friday, Sen. Patrick Leahy (D-Vt.) criticized his GOP colleagues for the curious and troubling about-face and took them to task in a letter to McGahn. He asked if McGahn had spoken with Kavanaugh about the records, as well as Bush’s personal attorney, Bill Burck, who is advising the former president on the release of his administration’s documents.

Democrats have rightly charged that it’s an appalling conflict to have Burck, who worked with Kavanaugh in the Bush administration, overseeing the release of the records. It’s also enormously problematic that Burck is McGahn’s personal attorney as well and is representing him ― in addition to former Trump advisers Reince Priebus and Steve Bannon ― in special counsel Robert Mueller’s probe of the Trump campaign’s possible ties to Russian interference in the 2016 U.S. election.

But the issues don’t end there. As Rachel Maddow noted on Twitter, Leahy also asked if McGahn had “reason to believe any of the records relate” to several pertinent issues, including “a proposed constitutional amendment to define marriage as a union between one man and one woman.”

Leahy’s letter calls into question the roles Kavanaugh and Burck played during the Bush administration and, more specifically, what involvement they had in the constitutional ban on same-sex marriage vigorously promoted by Bush-era Republicans ― a ban the Bush White House came to support in its first term.

Marriage equality and the broader fight for LGBTQ rights are continually put before the Supreme Court today, so it’s crucial for the public to know about Kavanaugh’s past  ― and appropriate for senators to ask questions about it. After all, there’s no way Kavanaugh and Burck, two key figures in the Bush White House, weren’t at the center of discussions about this controversial amendment. 

Kavanaugh, as White House staff secretary during that time, was certainly in the thick of these interactions and discussions. After Bush was re-elected, the president continued to give speeches in support of “a ban on same-sex marriage.” And controversy exploded in 2005 over revelations that the administration had paid right-wing columnists to promote its positions on marriage and the family.

By Trumpian standards, this scandal may seem like nothing, but the national uproar lasted for days. Bush was forced to address the issue, publicly urging his Cabinet secretaries to stop paying what amounted to thousands of dollars to radio host and columnist Armstrong Williams and syndicated columnist Mike McManus.

Also on the payroll: Syndicated columnist Maggie Gallagher, who received an additional $20,000 in a federal contract to write a report titled “Can Government Strengthen Marriage?” for a private group. She even testified before Congress promoting Bush’s policies. (In 2007, Gallagher would go on to co-found and lead the National Organization for Marriage, the driving force behind the movement against marriage equality that helped pass California’s Proposition 8 and other statewide gay marriage bans.)

Marriage equality is the law of the land today. But it continues to be challenged, not only by those who want to treat gay couples differently, like anti-LGBTQ bakers and other business owners, but by those who want to send the issue back to the states to decide.

Justice Neil Gorsuch, Trump’s first appointee to the Supreme Court, has invited state challenges to the Obergefell marriage equality ruling in a recent dissenting opinion. As I’ve noted, Gorsuch revered the late Justice Antonia Scalia, who, like Gorsuch, was an originalist . . . . Kavanaugh, who gave a speech in 2016 calling Scalia a “role model” and “hero.”

In that speech, Kavanaugh also pointed to Scalia’s dissent in Obergefell (Scalia called the ruling a “threat to American democracy”) as an example of what he liked about Scalia’s judicial philosophy. Scalia, he said, viewed the court as having “no legitimate role ... in creating new rights not spelled out in the Constitution.”

So what, exactly, are Republicans afraid the public will see in the Kavanaugh records from the Bush years, when the White House supported and promoted a federal marriage amendment? 

[T]he public should also know which issues Kavanaugh worked on in the Bush White House, how they may relate to cases coming before him, and if he would recuse himself from those cases.

The fact that there are likely hundreds of thousands more pages of records to review with regard to Kavanaugh, which will take more time, is no excuse. This is a lifetime appointment to the highest court in the land. The American public has the right to see how Kavanaugh interacted with, and perhaps weighed in on, one of the most important civil rights issues of our time. 

If one has nothing to hide, one doesn't seek to hide information.  You can only assume there is information in those records from the Bush years that Kavanaugh and his backers do not want the public to know about.  Given the incessant lies and hiding of information under the Trump/Pence regime, we need a full airing of all information, good and bad, on Mr. Kavanaugh.   

Scalia’s Goal Of Unwinding Voter Rights Becoming A Reality

The late Antonin Scalia - a seeming racist and champion of Christofascist rights.

The late Justice Antonin Scalia embodied much of what is wrong with today's Republican Party and its agenda of special rights for right wing Christian extremists and deference to white supremacist inclinations.  This is especially true when one looks at Scalia's hostility to minority rights.  The irony is that given Scalia's own ethnic and religious background - Italian Catholic - that saw his own ancestors targeted for hate and bigotry, one would think the man might have had some tiny shred of empathy for other despised groups.  Any such assumption, however, sadly would be totally wrong.  Now, the entire GOP seeks to roll back voting rights protections to favor whites and to disenfranchise minority voters as the GOP finds it increasingly difficult to attract voters outside of vulture capitalists, Christian extremists and, of course, white supremacists.  A piece in Talking Points Memo by a law professor looks at the danger that the U.S. Supreme Court may further embrace Scalia's agenda and spread America's slide back towards pre-1964 voting obstacles to minority voting rights.  Here are highlights:

In a Supreme Court term already bursting with election cases, from two partisan gerrymandering disputes to a fight about the permissibility of Ohio’s voter purges to a lawsuit challenging bans on political clothing in Minnesota polling places, it’s easy to overlook yet another significant voting appeal the Court will hear later this month. In Abbott v. Perez, the Court will examine whether the state of Texas violated the Voting Rights Act and the United States Constitution when it drew congressional and state legislative district lines in ways that hurt Latino and African-American voters. The protracted and difficult litigation involves redistricting plans from way back in 2011 and shows how much was lost when the Supreme Court killed another key provision of the Voting Rights Act in its 2013 Shelby County v. Holder case.

We may soon fulfill the late Justice Antonin Scalia’s vision of an emasculated Voting Rights Act and much weaker protections for minority voters by the federal courts.

In the pre-Shelby days, the Voting Rights Act offered two main tools to protect minority Voting Rights. Under Section 5, states which had a history of racial discrimination in voting had to get “preclearance” (or pre-approval) from the U.S. Department of Justice or a federal court in Washington, D.C. before making any changes in voting rules and procedures. States had to show the DOJ or the court that any changes would not worsen the condition of minority voters. Under Section 2, the U.S. government or private plaintiffs could bring suit anywhere in the U.S. arguing that a redistricting plan (or other voting rule, like a state voter id law) deprived minority voters of the same opportunity as white voters to participate in the political process and to elect representatives of their choice.

The Roberts Court’s record on reading and enforcing the Voting Rights Act has been a disappointing one, which is no surprise given that Chief Justice John Roberts himself was an opponent of a strong Voting Rights Act when he worked in the Reagan Administration to weaken minority voter protections in Section 2.

Even before Roberts became chief justice, the Court already had a relatively weak record enforcing Section 2. . . . . And that’s all aside from non-Voting Rights Act cases cutting back on voting rights such as a 2008 case rejecting challenges to the constitutionality of discriminatory voter identification laws.

The Texas case that the Court will hear this term shows just how hard it is to protect minority voting rights. Texas’ 2011 redistricting plans originally could not be put in place because a federal court had not precleared it under Section 5. A separate lawsuit sought to block parts of the plans under Section 2, and the same federal court issued an interim remedy, which led to Texas passing a similar discriminatory plan in 2013 claiming the re-enactment solved Voting Rights Act problems. The Section 5 lawsuit went away when the Supreme Court decided Shelby County, but the Section 2 lawsuit has dragged on . . .

Since the case started, it is hard to find friends for the Voting Rights Act in any of the three branches of government. The Department of Justice, which came in on the side of minority voters in the Texas litigation, has switched sides now that the Trump Administration has taken over. That means U.S. Solicitor General Noel Francisco will be arguing in favor of Texas’s position in the case at the Supreme Court.

Congress, meanwhile, has not acted to fix the formula for deciding which states need to get Section 5 preclearance, even though the Court in Shelby County invited Congress to try.

And the Supreme Court is poised to make things worse. With rumors circulating that perennial swing Justice Anthony Kennedy could retire as soon as this term, the Court is likely to lurch to the right. As I argue in my new book, The Justice of Contradictions: Antonin Scalia and the Politics of Disruption, the late conservative Justice Antonin Scalia took an even narrower view of Voting Rights than the Court as a whole, and now, after his death, Justice Scalia’s influence is only growing.

Justice Scalia openly expressed disdain for the Act, expressing the view at the Shelby County oral argument that Congress renewed the Act in 2006 by overwhelming majorities because of “a phenomenon that is called perpetuation of racial entitlement.”

The bottom line is that the Court’s mixed record on enforcing the Voting Rights Act could soon get worse if Trump gets another Court appointment. Minority voters, already at a disadvantage in many parts of the country because of enduring racism and the unwillingness of white voters to support minority candidates for office, could soon have tougher political battles ahead. And the scariest part is that, thanks in part to Justice Scalia’s influence, the courts may soon no longer be there as a backstop.

Sadly, the bottom line is that the GOP would love to move the nation back to the Jim Crow era.  Yet another reason why a massive Democrat, moderate and progressive turn out is needed in November to flip the House of Representatives and - ideally - the U.S. Senate to Democrat control.

Antonin Scalia’s Death has Changed the Supreme Court

As regular readers know, I was never a fan of Antonin Scalia and, in fact, on more than one occasion opined that he needed to be removed from the U.S. Supreme Court because of his inability to put aside his own religious, racial and male chauvinist prejudices when confronted with cases.  Nature - or God, if one is a Christofascist - stepped in and Scalia was removed from the Court in a manner I had not contemplated.  Now, if only Clarence Thomas would be removed, we might begin to see a Court with mostly responsible justices (Alito remains a boil on the Court, but might come around if sufficiently isolated).  A piece in Slate looks at how the passing of one bigot and opponent of modernity has changed the Court - most likely for the better, especially  if the Republicans fail to win the White House.  Here are column highlights:

Nobody quite knows what to make of it yet, but nobody disputes it, either: The Supreme Court of March looks nothing like the court we knew in February. The loss of a single justice, Antonin Scalia, has blown up the court and reshuffled everything. It’s the early days yet, and much of the evidence of newish, liberalish outcomes at the court lies in routine housekeeping matters: unsigned orders and withdrawn appeals. Still, it’s safe to say the high court is no longer going to be a candy store for pro-business and socially conservative litigants. What will rise in its place is still a work in progress.

The crazy new vibe at the court isn’t even limited to the raft of orders that have come down in the past week. Those include a critical and unanimous order affirming the right of same-sex partners to adopt children and the tossing of a death penalty conviction in Louisiana because the state withheld significant exculpatory evidence.

There was also last Friday’s unsigned order allowing several abortion clinics in Louisiana to reopen their doors, following an emergency decision from the 5^th U.S. Circuit Court of Appeals that would have shuttered all but one clinic in that state. In one sense, the order to keep the clinics open while the case progresses was not a massive surprise. Last June, the Supreme Court issued a similar last-minute stay of the 5^th Circuit’s Whole Woman’s Health decision that would have closed a significant number of clinics in Texas. . . . .   in choosing to reinstate the Louisiana abortion rules, the 5^th Circuit brushed aside the fact that the Supreme Court had prevented Texas’ clinics from closing last June. Faced with the snub, the court tartly reminded the 5^th Circuit that keeping the Louisiana clinics open is “consistent with the Court’s action granting a stay in Whole Woman’s Health v. Cole.” In other words, says the Supreme Court to Louisiana, “We may be 4–4 now, but we are still here. Thank you.”

This week, the Wall Street Journal’s Jess Bravin also noted that a new alliance seems to have cropped up between the court’s two most conservative members, Thomas and Justice Samuel Alito. The emerging split between these two determined conservatives and their colleagues might be in reaction, writes Bravin, to Chief Justice John Roberts “apparently seeking consensus where he can on a court hobbled by potential 4-4 ideological splits.” By contrast, Thomas and Alito seem to be redoubling their efforts to form a bulwark against “the path set out by their six colleagues.” . . . . . The two conservatives also aligned in an effort to uphold the right of states to sentence juveniles to life in prison without parole.

But changes at the court itself are only half of it. There’s also a growing sense among conservative interest groups and litigation shops that the good times and rich bounty of the old Roberts court are no longer on offer and that it may be better to cut and run than stick around and lose.

In an incredibly short time frame we have seen, for instance, a major antitrust appeal from Dow Chemical settled for $835 million last month, when the company determined that it wasn’t worth the risk to spin the wheel at a 4–4 court. Having only last month granted a completely unprecedented stay in a challenge to President Obama’s new environmental regulations—before the case had even been adjudicated in a lower court—Roberts batted away a similar request challenging a different pollution regulation without comment last week. Not here, he seemed to be cautioning Michigan and the other states that wanted to challenge the law. Not anymore.

Consider, too, that in New York this week a key gun rights group opted to drop its challenge to Gov. Andrew Cuomo’s SAFE Act—the big post–Sandy Hook gun control initiative—out of a concern that it could not prevail at the high court without Scalia on the bench. According to the New York Daily News, a National Rifle Association board member explained that the challenge had been halted en route to the court because “it’s just the wrong time.” His lawyers advised that “going forward could damage the case because the High Court at the very least would likely deliver a split 4-4 decision that would leave the law in place.”

This is a shocking turn from how the judicial landscape looked earlier this year. Going into this term, a number of important cases had been seen as likely to change the way we vote, the way we regulate abortion, and the way we fund public-sector unions. So certain were some plaintiffs of their likelihood of success that they had their appeals rocketed to the Roberts court on a fast track.

Suddenly, in a scenario where the conservative justices have been reduced to four, the high-speed pipeline looks far less attractive. It’s not at all clear these fast-track appeals will continue, so long as outcomes are uncertain and given the possibility of a long-term vacancy. By the same token, the tactics deployed to hustle last year’s big Obamacare challenge to the high court will likely lose their allure now. Nobody wants to rush a case to the court with even odds. Watch for a lot of hurry up and wait from conservatives groups that used to be all hurry.

Expect a lot more weirdness and subtle signaling from the court as the term rolls on. An institution that never wished to be an election issue has become one. What might have once been routine orders have now turned into a complex game of reputation management. Whether it’s the chief justice trying to appear apolitical, the conservative justices trying to fly the flag of ideology, or the liberals making hay while the sun briefly shines, nothing at the court these days is exactly what it appears to be, and it appears it will be that way for a while.

[T]he sudden frailty of the conservative bloc and the almost giddily emboldened left reveal how high the stakes will be in the general election. These past few weeks have proved to the right that its fears about the post-Scalia court are justified and tantalized the left with promises of a golden era with Ruth Bader Ginsburg tossing thunderbolts around from on high. Even as it tries to speak softly and subtly this month, the court reveals just how much now hangs in the balance. 

Divided SCOTUS Lets Lower Court Ruling Against NC Gerrymandering Stand

In what may set the stage for the case involving Virginia Republican's appeal of lower court rulings, the now equally divided U.S. Supreme Court has let stand a case from North Carolina that likewise struck down GOP gerrymandered congressional districts.  The ruling may be the first of many where a divided court leaves lower court rulings in place that either (i) strike down right wing positions or (ii) restrict the damage to a single Court of Appeals circuit.  The ruling is likely to set the stage for GOP losses in both Virginia and North Carolina.  Politicususa looks at the result.  Here are excerpts:

The Republican Party and media/propaganda arm is up in arms over President Obama following the Constitution and nominating a replacement for the recently deceased Supreme Court Justice Antonin Scalia. But already the effects of a Scalia-less court are being felt.

And not in the GOP’s favor. Late on Friday – just before 10 pm – the Supreme Court let stand a February 5 ruling by the U.S. District Court for the Middle District of North Carolina which ruled that congressional redistricting maps were invalid.

The state had been ordered by the district court to redraw two maps within two weeks. In effect, the maps in question were based on the race of voters. Both districts, the 1st and 12th, are majority black districts.

The state duly redrew the maps, as ordered, but requested a stay from the Supreme Court pending appeal. You know, with a big election coming up and all.

But now the Supreme Court has said no stay, which required five votes, and though SCOTUS hasn’t revealed what the vote totals were (no dissents are given on the order), it is possible that if Scalia had been alive as a crucial fifth vote, North Carolina would have gotten its stay.

Whether Obama nominates and has confirmed a replacement for Scalia, conservatives could continue to suffer. Poetic justice at the very least.

And it is not like the odds are good – except in their dreams – that they will have a man in the White House to nominate a justice more to their liking.  The GOP just had a very bad day.

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.

I 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.