“Outraged About Ginsburg’s Comments?”: Supreme Court Justices Have Always Voiced Political Opinions
Donald Trump is freaking out over statements made by Supreme Court Justice Ruth Bader Ginsburg.
Ginsburg didn’t hold back during a New York Times interview published Monday. “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” she said.
Trump, naturally, hopped on Twitter to complain.
Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot – resign!
— Donald J. Trump (@realDonaldTrump) July 13, 2016
Speaker of the House Paul Ryan called Ginsburg’s comments “out of place” during a CNN Town Hall on Tuesday.
But even after a wave of criticism, including from “liberal” outlets, Ginsburg refused to walk back her comments. On Monday, she called Trump a “faker.”
“He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that,” she said in her chambers.
The backlash over Ginsburg’s comments is not surprising, given Trump’s history of trying to de-legitimize the judicial system (especially when it applies to him). But his argument that Ginsburg’s comments disqualifies her from being an unbiased judge is a weak one: The ideological leanings of the justices are well known by not only their decisions (its kind of their job to give opinions), but also their public statements.
Unlike Ginsburg’s comments about Trump, justices have made plenty of statements in the past that relate directly to cases before them in the court.
Antonin Scalia was the poster boy for this behavior – the conservative legal icon frequently toured between law schools, book stores, and other gatherings, debating all comers on a wide range of topics. We knew how he felt about the death penalty, abortion and homosexuality:
“The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.” he said in 2012.
“What minorities deserve protection? What? It’s up to me to identify deserving minorities? What about pederasts? What about child abusers? This is a deserving minority. Nobody loves them.” he said in 2015.
Scalia’s defense of his homophobic remarks could easily be used to defend Ginsburg’s Trump comments — not that Ginsburg would use his argument, despite her storied, decades-long friendship with Scalia.
“If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?” Scalia said in 2012 after a gay Princeton student asked him why he equated laws banning sodomy with laws that ban man-on-animal sex and murder.
Ginsburg herself has long been known for her frankness. Joan Biskupic, the journalist who reported Ginsburg’s statements on Trump, writes that, having met with her “on a regular basis for more than a decade,” she “found her response classic.”
Biskupic elaborates:
I have witnessed her off-bench bluntness many times through the years. During 2009 oral arguments in a case involving a 13-year-old Arizona girl who had been strip-searched by school administrators looking for drugs, she was troubled that some male justices played down any harm to the student. “They have never been a 13-year-old girl,” Ginsburg told me. “It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood.”
Earlier in 2009, she was being treated for pancreatic cancer yet made sure to attend President Barack Obama’s televised speech to a joint session of Congress, explaining that she wanted people to know the Supreme Court was not all men. “I also wanted them to see I was alive and well, contrary to that senator who said I’d be dead within nine months.” She was referring to Sen. Jim Bunning, a Kentucky Republican, who had said she would likely die within nine months from the pancreatic cancer. Bunning later apologized.
As the first Latina to reach the court, Justice Sonya Sotomayor fiercely defends her use of personal political reflection, based in experiences that she believes differ from those of the other justices, in her arguments. The issue of affirmative action is especially important to Sotomayor. In her 2013 memoir, she wrote:
“Much has changed since those early days when it opened doors in my life. But one thing has not changed: to doubt the worth of minority students’ achievement when they succeed is really only to present another face of the prejudice that would deny them a chance even to try.”
Sotomayor has taken this sentiment to the court. In her dissent on Schuette v. Coalition to Defend Affirmative Action, she wrote: “Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, ‘No where are you really from?’”
Sotomayor’s opinion in a fourth amendment case on the validity of police stops was an explicitly political appeal. “It is no secret that people of color are disproportionate victims of this type of scrutiny,” she wrote in her dissent, on a case where a Utah man claimed he was unlawfully stopped by police. “For generations, black and brown parents have given their children ‘the talk’ — instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them.”
And besides: The Constitution does not prohibit Supreme Court Justices from expressing personal opinions.
Bloomberg‘s Noah Feldman offers Chief Justice John Marshall, who served as John Adams’s secretary of state while he was a chief justice, as proof that America’s founding generation was not “obsessed with the idea that justices have to be outside the reach of politics.”
Marshall, a loyalist of the Federalist Party, was understood to retain his beliefs while serving as chief justice subsequently.
Two of his most revered opinions, Marbury v. Madison and McCulloch v. Maryland, are historically incomprehensible except through the lens of partisan politics. In the first, he went to great lengths to embarrass the Jefferson administration by insisting that Marbury had a right to a justice-of-the-peace commission granted by Adams, before tacking back and holding that the law that would have allowed the court to force the delivery of the commission was unconstitutional.
In the second, he upheld the constitutionality of the Bank of the United States, originally such a fundamental partisan issue that it helped drive the creation of his Federalist and Jefferson’s Democratic-Republican parties.
Maybe conservatives shouldn’t argue about the integrity of the Court while in their fourth month of refusing to give it a ninth justice.
By: Germania Rodriguez, The National Memo, July 13, 2016
“Conservatives Are Right To Be Frightened”: Don’t Believe The Hype: Here’s What A Liberal Supreme Court Would Actually Do
If you look at how the Democratic and Republican candidates for president have reacted to the Supreme Court vacancy created by the death of Antonin Scalia, you might notice a greater sense of urgency from the Republicans. The Democrats are certainly talking about it, and they’ve certainly expressed their contempt at the absurd arguments Republicans are making in support of their position that the president of the United States shouldn’t be allowed to appoint Supreme Court justices if a new president will take office in a year. But they aren’t spinning out nightmare scenarios about what will happen if they lose this conflict. The Republicans, on the other hand, seem much more worried.
And they’re right to be, because at the moment, they have more to lose. But what would actually happen if the balance on the Court shifts from 5-4 in favor of conservatives (what it was before Scalia’s death) to 5-4 in favor of liberals?
To hear Republicans tell it, the results would be positively apocalyptic. Here’s how Ted Cruz described it in a CNN town hall last night:
“We are one liberal justice away from the Supreme Court striking down every restriction on abortion that’s been put in place the last 40 years. We are one liberal justice away from the Supreme Court writing the Second Amendment out of the Constitution. We are one liberal justice away from the Supreme Court ordering Ten Commandments monuments to be torn down, ordering veterans memorials to be torn down, and undermining our fundamental religious liberty.”
This is almost verbatim what Cruz has been saying since Scalia died; on Meet the Press last Sunday, he added colorfully that a liberal majority would mean “the crosses and Stars of David sandblasted off of the tombstones of our fallen veterans.”
There’s no doubt that if and when a new liberal justice takes his or her seat on the Court — either because Obama’s nominee somehow gets confirmed or because Hillary Clinton or Bernie Sanders wins the election and appoints one — it will be the most significant shift in the Court’s balance in decades. And that’s in large part because the right has gotten so much of what it wanted out of this Supreme Court. While conservatives shake their fists at the Court and call John Roberts a traitor, the truth is that with just a few exceptions, most notably the legalizing of same-sex marriage and the upholding of (most of) the Affordable Care Act, the Roberts Court has delivered the right a spectacular string of victories over the last few years. Among other things, they found an individual right to own guns for the first time in history, knocked down limits on spending by corporations (and unions) on political campaigns, whittled away at affirmative action, gutted the Voting Rights Act, made it harder for employees to sue for sex discrimination, and declared that corporations have religious rights.
Nevertheless, according to the Pew Research Center, in 2008, 80 percent of Republicans had a favorable view of the Supreme Court. By 2015 that figure had fallen to 33 percent. And 68 percent of conservative Republicans described the Court as “liberal,” which is laughable by any standard one could devise.
So what happens now? Margo Schlanger compiled this list of major rulings where Scalia was in a 5-4 majority, all of which could in theory be overturned, from Citizens United to D.C. v. Heller (which established the individual right to own guns) to Shelby County v. Holder (which invalidated key parts of the Voting Rights Act). But that doesn’t mean a liberal majority would go on a rampage, overturning all those settled cases.
“The Supreme Court is a conservative institution as a whole; justices aren’t looking to overturn the apple cart,” Jill Dash of the liberal American Constitution Society told me this morning. She argued that it’s unlikely that a liberal majority would set about to repeal those high-profile decisions, particularly within the first few years of that majority.
Samuel Bagenstos, a professor at the University of Michigan law school who served in the Justice Department under President Obama, also doubts that there would be too many major decisions overturned. “The four more liberal justices currently on the Court take precedent and stare decisis seriously, and I don’t think that will change,” he said.
But there would be change in complex areas of law where the courts are still working through how previous decisions apply to varied situations. Affirmative action is one “where the Court would be much more likely to uphold programs designed to promote diversity in schools and the workplace,” Bagenstos says. He also points to employment law as an area where a liberal majority could chart a new path, in cases concerning arbitration clauses in contracts and what constitutes systemic discrimination. Dash notes that a liberal majority would probably produce a spate of voting rights cases, as challenges to restrictions imposed by Republican state legislatures would find a friendlier hearing, even if Shelby County isn’t entirely overturned.
And then there’s abortion, always at the top of everyone’s mind when the Supreme Court comes up. In recent years, conservative states have pushed the envelope farther and farther in restricting the availability of abortion, with onerous rules on abortion clinics and invasive mandates on the women seeking the procedure. The question is which of these measures violate the Court’s 1992 ruling in Planned Parenthood v. Casey, which stated that the government can’t impose an “undue burden” on a woman’s right to choose.
The conservative position to this point has been that virtually no burden is “undue.” If the state makes you drive hundreds of miles, wait for days, make multiple visits to a clinic, hear an oration of lies penned by some GOP state legislator about how getting an abortion might give you cancer and drive you mad, so far the Supreme Court has said it’s just what women should have to tolerate.
But that might no longer be true. “A liberal who replaced Justice Scalia would likely read the Casey ‘undue burden’ standard as imposing a much more significant limitation on the regulation of abortion than the Court has in recent years,” says Bagenstos, “so you could see a major practical shift in reproductive rights jurisprudence. I don’t think the Court would overrule any precedent, though. It would just find a wider range of burdens to be ‘undue.’”
In short, a liberal replacing Scalia would be an important change with profound consequences for all Americans’ lives. But it wouldn’t happen all at once, and it wouldn’t be so earth-shattering as to cause riots in the streets. Nobody’s going to sandblast the crosses off the gravestones at Arlington. Nevertheless, conservatives are right to be frightened. They’ve had a long run with conservative dominance of the Supreme Court, and it may be coming to an end. Now they’ll understand how liberals have felt for the last few decades.
By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line Blog, The Washington Post, February 18, 2016
“Politics, Power, And Change”: Here’s What You Need To Understand About How Hillary Clinton Views Race
This afternoon, Hillary Clinton will deliver a speech on race in Harlem. There’s a political context here, of course, which is that African American voters are central to both the Feb. 27 South Carolina Democratic primary and the entire campaign for the Democratic presidential nomination.
But when Clinton speaks about race, something important happens: we get a revealing view not just of what she thinks is important, but of how she understands politics, power, and change.
According to guidance distributed by the Clinton campaign, today’s speech is going to cover a lot of policy ground, including criminal justice, education, housing, and economic opportunity. Clinton will also be discussing “systemic racism,” which is a key phrase to keep in mind to understand how she sees race, and how it differs from the way Barack Obama has dealt with racial issues over the past eight years.”
The idea of systemic racism has symbolic weight, but it’s primarily practical. It does speak to the fundamental truth that black people understand and that some whites resist, that racism exists in a thousand places at once, both those we can see and those we overlook. Saying you understand systemic racism is a way of saying that you see the problem as deep, wide, and historically grounded.
But it’s also a way of saying: This is a problem we, and the president him or herself, can actually do something about. If the racism that imposes itself on people’s lives is to be found in systems, then the way you attack it is to change the way those systems operate, through changes in law and policy.
In short — and if you’ll allow me to oversimplify things a bit — when it comes to race, unlike Barack Obama, Hillary Clinton doesn’t care how you feel.
Well of course she cares, but it’s not her primary concern. This is both her weakness and her strength.
Let me start this story in March 2008, when Obama delivered his much-praised speech in Philadelphia on race, after his former pastor Jeremiah Wright became controversial. In the speech you can see the stark difference between Clinton and him, or at least the candidate he was then. While Obama mentions in passing some of the ways racism has been embedded in institutions, most of the speech, and certainly the part people focused on after, was about different people’s perspectives on race. He talked about his white grandparents, noting that even the loving grandmother who largely raised him expressed fear of young black men. He talked about how white people who feel they never benefited from racial privilege can grow resentful of things like affirmative action. He talked about the anger of black people who continue to feel the sting of prejudice.
Like so many of Obama’s speeches in that campaign, it was extraordinarily eloquent and inspiring. It made you feel like no matter who you were, he understood you. Rereading it one can’t help but remember why many Americans went nuts for this guy.
As president, Obama has been extraordinarily cautious talking about racial issues. He obviously understands the way that his political opponents have cultivated racial resentments and used him as the symbol of everything anyone might fear about a time when white privilege is being challenged (regular listeners of conservative talk radio know, for instance, that Obama’s domestic policies are regularly described as “reparations,” wherein white people’s money is being stolen and then showered upon indolent, undeserving minorities). And though you could certainly point to any number of policy initiatives his administration has undertaken that address racial prejudice and its consequences, in his rare public statements on the topic Obama is far more likely to talk about people and their feelings, both black and white, than about the details of policy. It’s clear that he still believes that empathy and understanding are central to bridging the racial divides that his presidency has been unable to improve.
Clinton’s previous remarks on race, on the other hand, are essentially the inverse of Obama’s: some brief mention of values and feelings, quickly giving way to lengthy discussion of policy changes that can be made to address ongoing racial problems. You can see that in a major speech she gave in April about criminal justice reform. Early in the speech she articulated statements of values that link policy with ideas like justice and fairness: “There is something profoundly wrong when African American men are still far more likely to be stopped and searched by police, charged with crimes, and sentenced to longer prison terms than are meted out to their white counterparts.” She then talked about her own work as a young lawyer with the Children’s Defense Fund, but what stands out for me is that her discussion is about power and institutions. “I saw repeatedly how our legal system can be and all too often is stacked against those who have the least power, who are the most vulnerable,” she says, which is a statement about justice but also a way of saying, I understand this system. The speech is heavy with facts and figures, and while there are a few lines about hopes and dreams, it doesn’t address anyone’s feelings about race. Instead, it’s mostly about policy.
Or consider an even more vivid illustration, a fascinating spontaneous discussion she had with some Black Lives Matter activists in August. It may be the single clearest statement you can find illustrating Clinton’s perspective on social and political change as you’ll ever see.
The activists essentially argue to Clinton that symbolism, rhetoric, beliefs, and policy are all intertwined. At one point, Julius Jones says to her, “America’s first drug is free black labor and turning black bodies into profit, and the mass incarceration system mirrors an awful lot like the prison plantation system. It’s a similar thread, right? And until someone takes that message and speaks that truth to white people in this country, so that we can actually take on anti-blackness as a founding problem in this country, I don’t believe that there is going to be a solution.” He also wants to know what’s in Clinton’s heart, and how she feels about the mistakes of the 1990s. “What in you,” he asks, “not your platform, not what you’re supposed to say — like, how do you actually feel that’s different than you did before? Like, what were the mistakes? And how can those mistakes that you made be lessons for all of America for a moment of reflection on how we treat black people in this country?”
Clinton’s response, though she doesn’t put it these terms, is essentially that it’s not about what she feels. Again and again, she comes back to the idea that you need a program, an agenda of specific things government should do:
So, all I’m saying is, your analysis is totally fair. It’s historically fair. It’s psychologically fair. It’s economically fair. But you’re going to have to come together as a movement and say, “Here’s what we want done about it,” because you can get lip service from as many white people as you can pack into Yankee Stadium and a million more like it, who are going to say, “Oh, we get it. We get it. We’re going to be nicer.” Okay? That’s not enough, at least in my book. That’s not how I see politics. So, the consciousness raising, the advocacy, the passion, the youth of your movement is so critical. But now all I’m suggesting is, even for us sinners, find some common ground on agendas that can make a difference right here and now in people’s lives. And that’s what I would love to, you know, have your thoughts about, because that’s what I’m trying to figure out how to do.
Then Clinton and Jones begin talking quicker, and when at one point Jones characterizes her position as being that “what the Black Lives Matter movement needs to do to change white hearts is to come up with a policy change,” Clinton jumps in with this:
No, I’m not talking about — look, I don’t believe you change hearts. I believe you change laws, you change allocation of resources, you change the way systems operate. You’re not going to change every heart. You’re not. But at the end of the day, we can do a whole lot to change some hearts and change some systems and create more opportunities for people who deserve to have them to live up to their own God-given potential, to live safely without fear of violence in their own communities, to have a decent school, to have a decent house, to have a decent future. So, we can do it one of many ways. You know, you can keep the movement going, which you have started, and through it you may actually change some hearts. But if that’s all that happens, we’ll be back here in 10 years having the same conversation.
If I could put her point in terms that are a little more blunt, Clinton is basically saying that symbolism and feelings are all well and good, but they’re really not her concern. What she cares about is institutional power: who it belongs to, how it’s used, and what effects it has. Movement-building and consciousness-raising are not her job. They’re a part of the larger picture and can make her job easier, but her job is to make change within the institutions through which power flows.
You may or may not like this view of what a president does and how a president makes change. You may thirst for someone who can work the levers of power but can also inspire people, make them see things in a new way, offer a transformative vision of the future. But for better or worse, that’s not who Hillary Clinton is.
By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line Blog, The Washington Post, February 16, 2015
“The Electability Conundrum”: Scalia’s Death Only Reinforces The Need For Democrats To Choose Their Nominee Wisely
The death of Antonin Scalia has brought home two truths about the presidential race to voters in both parties. First, there may be no more important issue in the campaign than the Supreme Court (which some of us have been saying for some time). And second, if that’s true, then there may be no more important criterion in picking your party’s nominee than who has the best chance of winning in November.
Unfortunately, electability is a difficult thing to predict, no matter how much you know about politics. During the 2008 primaries, for instance, many intelligent Democrats believed there was no way that the voting public would ever elect an African American with a name like “Barack Hussein Obama.” Four years before, many Democrats thought that John Kerry was the most electable Democrat because Republicans couldn’t possibly attack the patriotism of a war hero, especially with a couple of draft-dodgers like George W. Bush and Dick Cheney at the top of their ticket. Neither of those assessments turned out to be correct.
Nevertheless, it’s an impossible question for partisans to ignore, given the stakes of the election. And just how high are they? Someone (usually someone running for president) will always say “This is the most important election of my lifetime,” and it’s easy to dismiss. After all, no matter what happens, the republic will survive. If you’re a Democrat, you can console yourself with the fact that it survived Ronald Reagan and George W. Bush, as much damage as they might have done; if you’re a Republican you can say the same about Bill Clinton and Barack Obama.
Nevertheless, there are some reasons why this election could be particularly consequential, particularly for Democrats. The first is the Supreme Court, and Scalia’s passing is only part of that story. When the next president is sworn in, Ruth Bader Ginsburg will be 83, Anthony Kennedy will be 80, and Stephen Breyer will be 80. What if Republicans succeed in keeping President Obama from seating a replacement, then a Republican is elected, and some or all of those three fall ill or retire? You could have a Court made up of seven relatively young conservative justices and only two liberals, Sonia Sotomayor and Elena Kagan. The days of liberals losing cases by a 5-4 margin would be but a happy memory, and the overturning of Roe v. Wade, the end of affirmative action, and the crushing of labor union rights would be only the beginning of a judicial scorched-earth campaign that would not only lay waste to rights liberals hold dear, but would keep doing so for decades to come.
And then there’s the matter of what a Republican president would be able to accomplish through legislation. If the GOP nominee wins in November, it will almost certainly also mean that Republicans have held on to the House and the Senate. That president might or not not be a radical conservative, though Donald Trump looks like the only contender with a chance who couldn’t be described that way. But Congress certainly will be radical. The Republican Party has been moving sharply to the right in recent years, and with unified control for the first time in a decade, it’s safe to say they will pretty much go nuts. Repealing the Affordable Care Act, slashing upper-income taxes, gutting the safety net, rolling back environmental regulations, passing federal restrictions on abortion—if it’s in any Republican’s fantasies, it’ll be able to pass through both houses and get signed by the president. And don’t think Democrats having the filibuster will stop that train; given the respect Republicans have shown for norms and traditions, do you think they’ll let that stand in their way?
So if you think electability ought to be part of your calculation, what do you need to consider? The Democratic primary makes it a little easier because there are only two candidates, but it’s still complicated. Here are the variables to consider:
- The reward to be gained from a Bernie Sanders presidency
- The reward to be gained from a Hillary Clinton presidency
- The chances of Sanders winning in November if he’s the nominee
- The chances of Clinton winning if she’s the nominee
- The consequences of a Republican victory in November
That’s not to mention how each Democrat would match up against any given Republican, which introduces another dimension of complexity. But here’s the basic calculation you have to make: Figure out whether, for your preferences, (1) is larger than (2) or vice-versa, and by how much; then figure out whether (3) or (4) is larger, and by how much; then weigh both of those figures against (5).
For instance, you might decide that Bernie Sanders’s presidency would be superior to Hillary Clinton’s, but Clinton has a higher chance of winning in November, and since a Republican presidency would be so dreadful, you’ll support Clinton even though you like Sanders better. Or you might decide that a Sanders presidency would be so good that even if Clinton might have a slightly better chance in November, it’s worth some measure of risk in nominating Sanders because the reward of him winning is so high.
The truth, of course, is that because we aren’t rational people we constantly construct post-hoc justifications for the choices we make. In this case, that means we’ll convince ourselves that whichever candidate we prefer is also the more electable one. While it might seem logical that Clinton has a higher chance of winning a general election than Sanders, I’ve yet to encounter a Sanders supporter who actually thinks so. They say that Clinton has her own electability problems (undoubtedly true), and that Sanders will bring in so many new voters that it will overcome the effect of the attacks Republicans will launch on him for his leftist views. Clinton supporters, on the other hand, find this argument laughable; they’ll tell you that Republicans will positively disembowel Sanders, and by the time they’re done with him he’ll seem like he’s too much of an extremist to get elected to the Burlington City Council.
I’ve also found that Sanders supporters are more likely to minimize the negative consequences of a Republican presidency. That might be because they don’t see as much of a difference between Clinton and the Republicans, but it’s also because they’re focused on the first variable, the potential rewards of a Sanders presidency. Clinton supporters, on the other hand, have no sweeping expectations from their candidate; for them, staving off disaster is more than enough reason to support her.
Even if your heart goes aflutter at Sanders’s mention of things like single-payer health care and free public college tuition, you’d have to grant that achieving those goals is anything but guaranteed even if he wins the White House. And most of what he would do doesn’t differ from what Clinton would do. That’s particularly true of the Supreme Court: Any Democratic president who had a chance to name a new justice would be choosing from the same pool of liberal jurists now serving in federal appeals courts or perhaps a few state supreme courts.
But even if you find the substantive differences between Clinton and Sanders to be enormous, it’s hard to see them as actually being bigger than the difference between them on one hand and the tsunami of change that will occur if a Republican is elected on the other. Which leaves Democratic voters with no choice but think hard about which candidate is more electable—even if there are no perfect answers to the question.
By: Paul Waldman, Senior Writer, The American Prospect, February 15, 2016
“It Will Be Easy To Replace Antonin Scalia”: In Terms Of Quality In A Supreme Court Justice, He Will Be Easy To Replace
Antonin Scalia’s unexpected death came as a shock to me—and not just because I had plans until recently to go hiking this weekend in Big Bend, Texas, where the justice died. Scalia has been a fixture on the Supreme Court for my entire legal career, and he didn’t seem to be going anywhere. During Barack Obama’s presidency, he hunkered down: no way would a Democrat appoint his successor. The right adored him as much as the left reviled him. He was the Court’s most colorful personality since William “Wild Bill” Douglas retired in 1975. Scalia’s family will miss him, and they are surely hurting right now. They have my sympathies. But as the tributes roll in and Scalia’s impact on the Court comes into focus, I predict a consensus will emerge that he has damaged the institution he served for so many years.
It is ironic that Scalia died during this particular presidential campaign, because he strongly resembled two leading Republican hopefuls: Donald Trump and Ted Cruz. Like Trump, Scalia was larger than life. He took his elbows with him wherever he went. The more outrageous his rhetoric, the more his fans lapped it up. Scalia trashed his colleagues’ writing, calling it “preposterous” and compared it to “the mystical aphorisms of the fortune cookie”; their reasoning was “patently incorrect” and “transparently false.” With his low punches and salty talk, Scalia coarsened the Court—just as Trump has coarsened the presidency. As the much more restrained John Paul Stevens said to one of Scalia’s biographers, “I think everybody respects Nino’s ability and his style and all the rest. But everybody on the Court from time to time has thought he was unwise to take such an extreme position, both in tone and in the position.”
Like Ted Cruz, Scalia possessed a rare intellect. (Cruz, a former Supreme Court law clerk and appellate lawyer, was a big fan.) Scalia was for a time the Court’s most persuasive voice on technical matters like jurisdiction and procedure. He was an unquestionably talented writer. No justice had a quicker wit. Yet, also like Cruz, Scalia proved ineffective within the constraints of an organization, where cooperation and pragmatism tend to produce results. His strident behavior alienated the people around him. “Screams!” wrote Justice Harry Blackmun on a draft Scalia dissent in 1988. “Without the screaming, it could have been said in about 10 pages.” When a very junior Scalia commandeered an oral argument in 1987, Justice Lewis Powell whispered to a colleague on the bench, “Do you think he knows that the rest of us are here?” Scalia seemed to make a special point of picking on Anthony Kennedy, the Court’s swing voter for the past ten years, and an essential member of any 5-4 coalition. His inability to hold his fire or to build consensus meant that he was assigned few important majority decisions in the later years of his career.
I will remember Scalia mainly for the ugliness that permeated his opinions. He once wrote with astonishing callousness that it is not unconstitutional to execute an innocent person if that person has received a fair trial. He described affirmative action as “racial discrimination,” and mocked the notion that it could help students achieve “cross-racial understanding.” (No one squeezed more sarcasm out of a quotation mark.) A devout Roman Catholic, Scalia harbored a particular scorn for “the homosexual agenda,” writing in a paper-thin third-person: “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”
Scalia had been slipping lately. He made a spectacle of himself before journalists, flipping his chin at them and giving needlessly provocative speeches. He openly flouted the Court’s recusal traditions, going on a hunting trip with Dick Cheney and then refusing to recuse himself from a suit against the vice president. He engaged in an unseemly public spat with Judge Richard Posner, going so far as to call Posner a liar after Posner panned Scalia’s latest book. The invective in his opinions and his behavior at oral argument had become truly outrageous, and caused many a citizen to associate the Supreme Court with cheap partisan point-scoring. It has been a long fall for what had been one of the most trusted institutions in government.
Scalia was a character, and he will be hard to forget. But in terms of quality in a Supreme Court justice, he will be easy to replace.
By: Michael McDonnell, Contributor, Ten Miles Square, The Washington Monthly, February 14, 2016
Share This Blog
mykeystrokes.com- “The Unrelenting Hostility Of Washington’s Courtier Press”: The Media’s Crusade Of Scandals Against Hillary Clinton July 28, 2016
- “Endorsing This Philistine”: The Christian Right Has Surrendered To Trump July 24, 2016
- “Cop Killers Serve No Cause”: It’s Getting To The Point Where No Lives Matter July 24, 2016
mykeystrokes.com 