“Antonin Scalia’s ‘Interpretive Jiggery-Pokery'”: With Increasing Frequency, Scalia’s Reputation Continues To Deteriorate
Two years ago tomorrow, the U.S. Supreme Court struck down the Defense of Marriage Act, much to Justice Antonin Scalia’s chagrin. Adding to his greatest-hits list, the far-right jurist called the majority’s rationale “legalistic argle-bargle.”
Today, as my msnbc colleague Irin Carmon reported, Scalia was once again in rare form today in his King v. Burwell dissent.
Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented. Writing on their behalf, Scalia accused the majority of acting in bad faith just to save the law. “So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare,” Scalia wrote in the dissent. He said Roberts’ reasoning was an act of “interpretive jiggery-pokery.”
No, seriously. Scalia actually used the phrase “interpretive jiggery-pokery.” It’s on page 8. Two pages later, he published the phrase “pure applesauce” as a complete sentence.
The justice has been embarrassing himself with increasing frequency, but Scalia’s reputation continues to deteriorate further.
The broader point, however, is less about the justice’s strange word choice and more about his increasingly twisted approach to the law.
The dissent in King is literally hard to believe. On page 17 of the majority opinion, Chief Justice John Roberts even mocks the dissenters for making the opposite conclusion that they drew three years ago:
“It is implausible that Congress meant the Act to operate in this manner. See National Federation of Independent Business v. Sebelius, 567 U. S. ___, ___ (2012) (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) (slip op., at 60) (“Without the federal subsidies … the exchanges would not operate as Congress intended and may not operate at all.”).
It’s no small detail. Three years ago, when the Affordable Care Act’s constitutionality was challenged, Scalia, Clarence Thomas, and Sam Alito read the law in such a way as to see all eligible consumers receiving subsidies, regardless of state or federal exchanges. In today’s dissent, these three had to read the law in the polar opposite way.
And therein lies the point: it seems as if the dissenting justices were so eager to rule against “Obamacare” that they were willing to ignore legislative history, legislative intent, context, and their own beliefs from three years ago.
I’m also reminded of this Linda Greenhouse piece from February.
Statutory interpretation is something the Supreme Court does all the time, week in and week out, term after term. And while the justices have irreconcilable differences over how to interpret the Constitution, they actually all agree on how to interpret statutory text. […]
Every justice subscribes to the notion that statutory language has to be understood in context. Justice Scalia said it from the bench just last month, during an argument about the proper interpretation of the federal Fair Housing Act. “When we look at a provision of law, we look at the entire provision of law, including later amendments,” Justice Scalia said. “We try to make sense of the law as a whole.” … Across the ideological spectrum, the court’s opinions are filled with comments like Justice Scalia’s.
Today, Scalia threw all of that out the window, saying what matters isn’t the entire provision of law, but how he could take half a sentence out of context to undermine a law he doesn’t like.
“Words no longer have meaning,” Scalia whined today. In reality, words are still fine. What lacks meaning are Scalia’s unhinged complaints.
By: Steve Benen, The Madow Blog, June 25, 2015
“The South Shall Not Rise Again”: But, Beware When Right-Wing Manipulators Of Historical Memory Offer Reconciliation
Let’s not get carried away here, friends told me yesterday. A flag is just a symbol. When they stop passing voter-ID laws or start passing gun laws, then I’ll be impressed.
This is a sound view, no doubt about that. But if you don’t think symbols matter, think about how tenaciously people fight to hold on to them. And more than that: In terms of our political culture, the pending removal of the Confederate battle flag from South Carolina’s capitol grounds, and now Mississippi’s state flag—and, don’t forget, from WalMart’s shelves—represents a rare win for North over South since Reconstruction.
This is a history and set of facts that far too few Americans know, and it’s vitally important to understand it in order to grasp the full magnitude of this moment. The South, more than the North, has dominated and defined the limits of America’s political culture for most of the last 140-ish years. The North has the money, the North has Wall Street, and the North runs (most of) our high and popular culture. But the South has run our politics. And this moment that we’re witness to now could be the blessed beginning of the end of all that.
It all started during Reconstruction, when a debate ensued about how the Civil War would be remembered. Our guide through these waters is Yale historian David Blight, whose groundbreaking book Race and Reunion tells this story. He shows masterfully how collectively historical memory is constructed.
According to Blight, there were three competing interpretations of the war. The “emancipationist” one emphasized slavery as the cause of the war and the slaves’ freedom as its great moral accomplishment. The “reconciliationist” view emphasized the common hardships endured by soldiers and citizens who were after all countrymen. There was also a white supremacist version that marginalized the role of slavery as a cause of the conflict (sound familiar?), but the main interpretive battle was between the first two.
It’s a long a complex and quite revolting story about this country we love, and you should read the book. But the gist of it is that in the interest of national reconciliation, the North—where, let’s face it, there was also no shortage of racists in the late 1800s—capitulated to a view of the war with which the South could be comfortable, as a battle that fully and finally unified a country that never really had been.
Gettysburg became organized basically around Pickett’s Charge, the last thrust of the Lost Cause. By the time of Woodrow Wilson—the first Southern-born president since Andrew Johnson had taken over from the slain Lincoln, and a militant segregationist—there was a 50-year commemoration of that battle attended by 50,000 veterans, not one of them black.
Meanwhile, historical memory was morphing into political reality. In Congress, the United States entered the era of the Southern committee barons whose influence on the making of national policy was obscenely out of proportion to either their numbers or the extent to which their views, particularly on race, reflected broader American sentiment. Accruing seniority and working the rules, Southerners (and yes, conservatives, they were all Democrats then; so what?) gained power. By Franklin Roosevelt’s time, of the House’s 10 most important committees, Southerners chaired nine. As for the Senate, all you need to know is this sentence, penned by the journalist William S. White in 1957: “The Senate might be described without too much violence to fact as the South’s unending revenge upon the North for Gettysburg.”
The Southerners used that power to one end far above all others: keep black people down. But then, starting in 1958, the Senate began to elect some liberals; and outside the halls of power, which is where change actually happens, a certain young charismatic minister was changing white minds and opening white hearts across the country, even a few in the South.
Next came the only years, roughly 1964 to sometime in the mid-1970s, depending on how you measure it, that the North vanquished the South politically since the Civil War. Many chairmanships changed hands; the racists were defeated and changed political parties; accommodation of the South was no longer something most Northerners and Westerners were interested in.
So that was all good, but that of course doesn’t end our story. The South, through the person of Californian Ronald Reagan, who gave a high-profile speech invoking “states’ rights” in the very town where erstwhile states’ righters had murdered Goodman, Schwerner, and Chaney in 1964, came roaring back. The Christian Coalition became a force. From 1980 until 2008, the Democrats did manage to win two presidential elections, but only because they put forward an all-Southern ticket that talked more about “family values” than most Democrats would have really preferred, even if they did understand the political reality.
Just as Blight observed a post-Civil War era that saw two world views, one fundamentally progressive and the other fundamentally reactionary, competing to interpret the past and thereby define the future, I argue that we’ve been living through something very similar since 1980. And just like the emancipationists and reconciliationists, we’re stuck in the ’60s: They were quarreling about the 1860s, we about the 1960s. And in our political culture for most of the past 35 years, the modern-day version of the reconciliationists has won.
But now that’s changing. Fortunately, the emancipationists control the culture from New York and Hollywood, and they’ve pushed back on the Southerners hard—this too is a huge change from the old days, when for example television networks were extremely careful not to offend Southern tastes. And so even the Southern Baptist Convention has quieted down about same-sex marriage, even if the Republican candidates haven’t.
But this—this flag business is the first instance I can recall of conservative Republican Southern politicians defying their right-wing base on an issue of first-order emotional importance. It’s important that this isn’t some liberal federal judge ordering the flag removed. It’s Republican politicians doing it. I’m not saying that to pat them on the back—they’re at least a decade late to be getting anything resembling credit as far as I’m concerned. I’m just observing it as telling: When future David Blights write about how the South started losing its hold on America’s political culture in 2015, they’ll write about this moment, the first time their leaders said to them, “Your position is just too morally undignified for me to defend anymore.”
For his part, the actual living David Blight isn’t as hopeful about this as I am. In response to my question, he emailed me yesterday: “This may indeed be a rare moment. But if my work shows anything it might be simply to say beware when right-wing manipulators of historical memory offer reconciliation. They are looking for cover for other and perhaps larger matters.”
He’s correct, of course. This massacre is still about guns and terrorism, and it’s about South Carolina’s voter-ID laws too, on which Clementa Pinckney was one of just two favorable votes in the state Senate. All those fights will continue, with the usual achingly slow progress (if progress at all on guns).
But this is still a big deal. It could usher in a second era of conquest over Southern political hegemony. If that happens, those other fights will be easier to win, eventually, too.
By: Michael Tomasky, The Daily Beast, June 24, 2015
“If Not Now, When?”: Charleston Church Massacre Is Yet Another Wake-Up Call For Gun Control
This will be short. I am tired of politicians and pundits telling us after horrible gun tragedies that now is not the time to confront our “gun problem.”
Many of us remember when John F. Kennedy was murdered with a mail-order rifle; Martin Luther King Jr. was assassinated by an easily-bought Remington .30-06 rifle; and Robert F. Kennedy was killed with a cheap handgun. That was a half century ago.
We have watched as gun violence has continued to consume us as a nation. And yet, our leaders do not act; our culture does not change. The National Rifle Association and other groups, pardon the expression, have a gun to our heads.
When threats to our society confront us we act: Trans fats are banned because they have harmful health effects; smoking is prohibited on planes, in restaurants and in public places; air bags and seat belts are mandated because they save lives; billions are appropriated to combat terrorism, which is deemed a threat to our nation.
But where is the courage to embrace control of guns? Where are the common sense solutions that nearly every other civilized, developed nation has put in place? Why have we not responded to this threat, to this reality? If not now, when?
We can grieve and act at the same time. We can mourn and call for solutions to our gun problem, to our racial problem, all at the same time.
In 2013, the Congressional Research Service determined that there were 78 incidents of mass shootings over the past thirty years killing 547 people – incidents such as occurred at Columbine, Aurora, Sandy Hook, Virginia Tech and now in Charleston.
That same year, Pew Research Center reported that 37 percent of American households have guns, and that there were between 270 and 310 million guns in the United States, nearly one for every man, woman and child.
We acted in 1968 to pass gun control legislation. We acted under President Bill Clinton. But not nearly enough time, effort or courage has been exhibited by our leaders or our citizens to confront this problem.
We are terrorized by our own love affair with guns. It is long past time to get over it. It is time to recognize that acts like the Charleston massacre should change attitudes and change laws. The longer we wait, the more people will die.
By: Peter Fenn, Political Strategist and Head of Fenn Communications; U. S. News and World Report, June 19, 2015
“The Language And Words”: Magna Carta Said No Man Is Above The Law, But What About Corporations?
Magna Carta reminds us that no man is above the law.
And it should be celebrated for that.
But it should not be imagined that Magna Carta established democracy, or anything akin to it.
The great British parliamentarian Tony Benn put it well several years ago when he noted, as this 800th anniversary of Magna Carta approached, that we still do not have democracy.
“Don’t look at historic documents but treat them as part of the language and words that help us understand what we have to do,” said Benn, who died in 2014 at age 88.
As queens and presidents celebrate today’s anniversary of Magna Carta, with all their pomp and circumstance, we the people should be focused on what we have to do.
If we respect the notion that the rule of law must apply to all—the most generous interpretation of the premises handed down across the centuries from those who on June 15, 1215, forced “the Great Charter of the Liberties” upon King John of England at Runnymede—then surely it must apply to corporations.
And, surely, the best celebration of those premises in the United States must be the extension of the movement to amend the US Constitution to declare that corporations are not people, money is not speech, and citizens and their elected representatives have the authority to organize elections—and systems of governance—where our votes matter more than their dollars.
Millions of Americans have already engaged with the movement to amend the Constitution to overturn not just the Supreme Court’s noxious 2010 decision in the case of Citizens United v. FEC but a host of other decisions that have permitted billionaires and corporate CEOs to define our politics and policies. Sixteen states have formally urged Congress to move an amendment, as have more than 600 communities. Democratic and Republican members of Congress are supportive. One presidential candidate, Vermont Senator Bernie Sanders, has penned an amendment proposal, while others, including Democratic frontrunner Hillary Clinton, say they are open to the prospect.
But this movement, like every movement to amend the Constitution in a way that upsets the status quo, still faces plenty of obstacles. Politicians and media outlets that benefit from a system defined by blank checks and millions of negative ads continue to resist the logic of this reform—and the prospect of robust democracy.
Polls show that the American people know that billionaires and corporations are too influential, and referendum results confirm that the people are ready to amend the constitution to reduce that influence. But to translate those sentiments into real change will require more campaigning by the groups that have moved this project forward, including Move to Amend, Free Speech for People, Common Cause, Public Citizen, People for the American Way and dozens of others.
It will also require citizens themselves to begin to confront elected officials with blunt questions that go to the heart of democracy—and to the heart of the question of whether the rule of law really does apply to all men, all women and all corporations.
Tony Benn, the great chronicler and champion of the long struggle for liberty in Britain and around the world, best outlined the challenge that must be made to those who control our politics and our economics—and who are so inclined to resist change.
Decades ago, Benn outlined “Five Questions for People of Power.”
They are:
“What power have you got?
“Where did you get it from?
“In whose interests do you use it?
“To whom are you accountable?
“How do we get rid of you?”
“Anyone who cannot answer the last of those questions,” said Benn, “does not live in a democratic system.”
For Americans, the answer to that last question is a movement to amend the Constitution so that we can begin to get rid of the overwhelming influence of billionaires and corporations over our politics, our governance, and our lives.
By: John Nichols, The Nation, June 15, 2015
“Gun Nuts: Arm The Mentally Ill!”: Is This The Week The NRA Finally Jumped The Shark?
What a week it’s been for the Second Amendment. For starters, noted political philosopher Vince Vaughn said firearms should be available like they’re in candy machines at our nation’s schools. Probably because you never know when you’ll have to engage in pitched battle with Dean Pritchard to keep your frat house on campus.
OK, that’s not the actual reason, but his regurgitation of pretty much every inane—and wrong!—talking point he seems to have snorted off the National Rifle Association looking glass is no less fictitious.
But I guess there must be a full moon out for the wolves of Winchester this week, because along with the wit and wisdom of Mr. Vaughn, the NRA’s decided to pop off about the rights of domestic abusers and the dangerously mentally ill to have access to any ol’ gun they please.
This latest freakout was in response to the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) looking to bring back a rule proposed in 1998 that would block misdemeanor domestic abusers from owning or purchasing guns.
Tyranny, really.
Because, you see, in their tiny, malfunctioning cerebral cortexes, it’s a defensive maneuver. It’s an effort to prevent President Obama from engaging in the unprecedented confiscation of all guns, a move they’ve predicted since the day they heard the name Obama and just knew something had gone awry.
Much like the guy screaming about the end of the world on the street corner, when it doesn’t happen, the NRA just pushes back the timeline a bit, rinses and repeats. Considering their target audience is comprised of the same old white men who buy penis pills via group email, pulling this off is not as difficult as one would imagine.
There has been much already said about the NRA’s putting guns in the hands of the mentally disturbed by blocking universal background checks, which is really the most reasonable legislation imaginable. You can read more about that here and here. But not nearly enough time has been spent on the tragic role guns play in domestic violence.
The stats, of course, don’t lie, as much as discredited, sham researchers like the infamous John Lott try to tell you your nose is not in front of your face. This is why, on the same day as the first national Wear Orange Day, in which celebrities, policymakers, and regular Joes and Janes all across the country are sporting orange to honor victims of gun violence and say enough already, the U.S. House of Representatives is holding hearings on “Domestic Violence and Guns: An Epidemic for Women and Families.”
For an epidemic it is. Over half of all women killed by partners between 2003 and 2012 were murdered with guns. A gun’s presence makes a woman seven times more likely to be murdered by her abuser.
And, of course, the simple stat that belies what the NRA and all those Twitter trolls posing with their AK-girlfriends spew out. You know, the ones suffering from Gunorrhea, who like to hock out one canard after another—more guns means less crime, good guys with guns are like Iron Man, and other assorted delirium and detritus—women in the United States are 11 times more likely to be murdered with a gun than in other high-income countries.
This all just gets a collective yawn from the almost entirely male leadership of the NRA. When they’re not watering down legislation meant to protect women in Louisiana, blocking federal legislation to stop abusers from accessing guns, or actually committing these very transgressions themselves.
Because, who honestly thinks stalkers should have their guns taken away? Show of hands, NRA brass?
Gun nuts love to talk about “freedom.” Although, when hearing them utter it, it becomes meaningless to American women, who enjoy the “freedom” to be stalked and killed like animals because of gun fondlers, profiteers, and their squeezes in our legislative bodies. It leads me to think the word only applies to the male of our species in their vision, where, as Janis Joplin once sang, “Freedom’s just another word for nothing left to lose.”
By: Cliff Schecter, The Daily Beast, June 3, 2015
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