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“Why Scalia Should Resign”: It Must Make Him Wonder If He Wishes To Be Part Of An Institution That Is Corrupting The Republic

Supreme Court Justice Antonin Scalia should resign.

That’s the thought I had while reading his acid dissents in the two headline-grabbing Supreme Court cases last week, one affirming the IRS’s interpretation of the Affordable Care Act, and the other discovering a right to same-sex marriage in the 14th Amendment.

Scalia’s considered view is that the court has usurped power from Congress in the health care law, and from the American people themselves in the marriage case.

Ultimately, on the health care case, John Roberts agreed with most of the claims of the plaintiffs, but decided to rewrite the disputed clause because, as he writes, “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.” Scalia retorted that the court’s job is to pronounce the laws, not re-shape them to better fit what the court imagines the intent of the legislators to have been. Scalia writes, “the court forgets that ours is a government of laws and not of men. That means we are governed by the terms of our laws, not by the unenacted will of our lawmaker.”

He continues:

The court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery. That philosophy ignores the American people’s decision to give Congress “[a]ll legislative Powers”enumerated in the Constitution. Art. I, §1. They made Congress, not this court, responsible for both making laws and mending them. This court holds only the judicial power — the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct. We must always remember, therefore, that “[o]ur task is to apply the text, not to improve upon it. [King v. Burwell]

So the court has thus transgressed the balance of powers, becoming a kind of reserve super-legislature. But his dissent on Friday against Justice Anthony Kennedy’s majority opinion legalizing same-sex marriage takes the charge much further. According to Scalia, the court has given into nonsense, and now transgresses the right of the American people themselves. “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie,” he jeers.

Scalia’s baseline assumption is that the meaning of the 14th Amendment did not change since 1868. And further that it is the prerogative of the American people, through their legislators or through constitutional amendment, to redefine marriage as an institution that includes two people regardless of their sex, a process that was well on its way. And so the Kennedy decision becomes for Scalia a “judicial putsch,” where five judges “have discovered in the 14th Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since.” Instead of law, Scalia says, the court has given “pop philosophy” and “showy profundities” that are “profoundly incoherent.”

Scalia has often denounced majority holdings in extraordinarily memorable language. But what he offers in his two dissents at the end of this term are much graver charges. The ruling in King further infantilizes Congress, releasing it from its responsibility to craft laws with any precision, thus weakening the ability of the people to govern themselves through the legislature. And the marriage ruling more directly asserts a judicial supremacy over the people themselves. What Scalia is saying is that the court has corrupted the American form of government and staged a coup.

If these are anything more than rhetorical flashes, then it must make him wonder if he wishes to be a part of an institution that is this corrupted and corrupting of the republic. He may steel himself, as someone who will dutifully carry out his appointed role. But waiting for a Republican president to replace him is a guarantee of nothing. The two opinions that amount to a putsch were written by justices appointed by the two most conservative Republican presidents in living memory.

Progressives would be so giddy at his departure. So what? If the court is captured by politics, what better rebuke than to demonstrate that one justice is not so captured. Leaving the court would not relieve its members of the duty of upholding the Constitution. Let the burden and the obloquy of the putsch be on others.

 

By: Michael Brendan Dougherty, The Week, June 29, 2015

July 4, 2015 Posted by | Antonin Scalia, King v Burwell, Obergefell v Hodges | , , , , , , , | Leave a comment

“No Longer May Liberty Be Denied”: Liberals Just Had An Amazing Week At The Supreme Court

The conservative Roberts Supreme Court just gave American liberals the most joyous judicial week they could have asked for.

In a span of just two days, the rightward-leaning court all but settled Obamacare as the law of the land; reaffirmed key components of housing discrimination law meant to protect minorities; and granted gay Americans the right to get married in any state they wish.

Even Texas.

The string of progressive victories left officials hugging and high-fiving at the White House, gay couples crying tears of joy on the courthouse steps, and hardline conservatives wondering on Twitter whether their erstwhile judicial heroes were now traitors.

To recap:

In King v. Burwell, decided Thursday, the court ruled 6-3 to reject a lawsuit brought by conservatives that would have stripped Obamacare subsidies from people who purchased their health coverage on the federal exchanges. A ruling in the plaintiffs’ favor threatened to unravel the system created by the Affordable Care Act, potentially causing millions to lose their health care coverage and wreaking havoc on state insurance markets.

The ruling marked the second time in three years the court had rejected an existential threat to Obamacare. As in the previous case, 2012’s NFIB v. Sebelius, Chief Justice John Roberts joined the liberal wing of the court, this time along with Justice Anthony Kennedy, to keep the president’s signature law intact. Justice Antonin Scalia, writing in a typically scathing dissent, lambasted the majority’s reasoning as “interpretive jiggery-pokery” and “pure applesauce.”

In Texas Dept. of Housing v. Inclusive Communities, also decided Thursday, the court handed a victory to civil rights groups with a 5-4 decision that upheld so-called disparate impact claims. Joined by Kennedy, who often plays the swing vote, the liberal justices ruled that someone suing under fair housing law doesn’t need to prove that a developer or the government knowingly discriminated — only that the policy had a disparate impact, something that can often be demonstrated with statistics.

Had the conservative wing prevailed, plaintiffs bringing claims would have had the far more difficult task of proving intentional discrimination, which typically isn’t documented by those who practice it. Civil rights groups so feared an unfavorable ruling in such a case that the Obama administration sought to keep the question of disparate impact away from the Roberts court.

Finally, in Obergefell v. Hodges, issued Friday, the justices ruled 5-4 to legalize same-sex marriage nationwide, marking a triumph for the gay rights movement decades in the making. The liberal justices, who were joined again by Kennedy, determined that the Constitution grants anyone, regardless of their sexual orientation, the right to marry, effectively invalidating the bans against same-sex unions that still exist in 13 states. “No longer may this liberty be denied,” Kennedy wrote in his highly quotable decision for the majority.

Scalia penned another memorably incredulous dissent, opening by saying he chose to write separately from Roberts in order to “call attention to this Court’s threat to American democracy.” Insisting his concern was not the merit or lack thereof of gay marriage, he wrote that the majority’s “pretentious” and “egotistic” opinion lacked “even a thin veneer of law” and was chock full of “mummeries and straining-to-be-memorable passages.” “[W]hat really astounds is the hubris reflected in today’s judicial Putsch,” he seethed.

The good news for liberals wasn’t confined to just the high-profile cases. In Friday’s Johnson v. United States decision, which was overshadowed by the Obergefell case, the court ruled 8-1 that a section of the Armed Career Criminal Act, which is used to extend prison sentences, is “unconstitutionally vague.” The ruling may compel Congress to address the language of the law as thousands of prisoners seek to have their sentences reduced.

The majority opinion in the Johnson case was written by Scalia, giving progressive court watchers another reason to celebrate. As ThinkProgress’s Ian Millhiser explains, the Johnson opinion makes Scalia one of just two justices who’ve penned as many as eight majority opinions this term. If tradition is any indication, then Scalia probably won’t be writing another majority opinion before the court breaks, likely leaving the duty to one of his less conservative colleagues.

 

By: Dave Jamieson, The Blog, The Huffington Post, June 26, 2015

June 27, 2015 Posted by | Affordable Care Act, Fair Housing Act, Johnson v United States, Obergefell v Hodges, Texas Dept of Housing v Inclusive Communities | , , , , , | Leave a comment

“Martyrs To Marriage Equality”: The Famous Bakers And Florists Of Conscience

The thing that really amazes me about much of the conservative reaction to Obergefell v. Hodges, and indeed much of the religion-based complaints over LGBT rights generally, is the sense of personal grievence. I mean, on the one hand you’ve had people who’ve been persecuted, bullied, denied equal rights for ages, finally getting the right to do something the rest of us take for granted, and on the other hand you have people who are offended by them. This helps explain the hilarious fixation among conservatives about identifying the fifteen people in America who might be so homophobic that their “religious views” come into direct conflict with anti-discrimination laws–you know, the famous Bakers and Florists of Conscience. Agitating the air to make this extremely marginal “grievance” into something tangible, and then inflating it wildly with all sorts of specious slippery-slope arguments that next thing we know the Catholic Church will be forced to make gay sex a sacrament, has pretty much been the sum and substance of the “religious liberty” backlash.

And so today we find all too many Christian conservatives unable to feel empathy towards people expressing joy at their now-established ability to get married, and instead making themselves out as martyrs, to the everlasting embarrassment, I am quite sure, of the actual Christian Martyrs of the Ages who suffered harm to more than their sensitivities or prejudices.

I was driven to write this today not by Bobby Jindal or Mike Huckabee or the other pols trying to put themselves at the head of a pathetic parade of outrage, but by a post at the Federalist by “international pro-family” advocate John-Henry Westen warning of the totalitarian repression about to hit Christians, as evidenced by his experience with what had happened in Canada and Europe.

And of what is this wave of repression composed? Basically lawsuits, most of them withdrawn.

As anyone who has been to law school can tell you, there is no place short of Utopia without constant, frequent lawsuits, some serious, some frivolous. Neighbors battle in court against neighbors for decades over ridiculously small boundary disputes; disgrunted employees and employers carry their disagreements into courts every day; divorcing and ex-spouses ruin themselves and each other in the fight for the last word almost as often as they don’t. If, as several of the examples offered by Western suggest, he thinks the Roman Catholic Church is going to be nailed to a cross of LGBT litigation, I would suggest there’s another source of lawsuits that is rather obviously a bigger threat.

Westen does have an alternative argument against legalized same-sex marriage that’s not about the terrible martyrdom that awaits any dissenter against the Rainbow Fascist State. In a reductio ad absurdum of the hate the sin, love the sinner chestnut, he argues love for gay people compels not letting them get married:

[B]ecause same-sex relationships hurt everyone involved, marriage supporters have a duty to oppose inverted relationships out of love and compassion.

Despite being perhaps 4 percent of the U.S. population, the LGBT community sees devastating levels of HIV/AIDS, depression, anal cancer, suicide, shorter lifespans, and other ailments. Again, it is up to Christians, and especially our pastors, to energize society with the beautiful love of our faith. We never should have given up talking about sex [sic!], and we must start doing so anew.

As former Canadian LGBT leader Gens Hellquist said in 2006, “I am tired of watching my community die” of diseases endemic to the LGBT community. A Catholic with a master’s degree in psychology who visited a ward for HIV/AIDS patients in India, he saw it was clear that only monogamous, marital relationships are healthy for human beings.

So there you have it: we need to prevent people from getting married so as to force them into “monogamous, marital relationships.”

That’s the second biggest howler in Westen’s piece (or maybe the third, after the claim that conservative Christians don’t talk enough about sex!). The biggest is in the headline: “Same-Sex Marriage Won’t Bring Us Peace.” Nor will it bring us 4% GDP growth or a solution to the Israeli-Palestinian conflict. The idea is to bring us justice. But on second thought, there is a connection, or so thought Pope Paul VI, who famously said: “If you want peace, work for justice.”

 

By: Ed Kilgore, Contributing Editor, Political Animal Blog, The Washington Monthly, June 26, 2015

June 27, 2015 Posted by | Homophobia, Marriage Equality, Obergefell v Hodges | , , , , , , | Leave a comment

   

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