“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
“Yes, There’s A July 4 Terror Threat From The Right”: I Believe It. But I Bet It’s Not From Muslims
Representative Peter King (R-NY) told us on Wednesday that we need to be afraid, no, very afraid, of Muslims over the July 4th weekend. Why? Well, King, in his typical Muslim fear-mongering style, warned, “Because if there is a threat, if there is gonna be something happening, it’s gonna come from the Muslim community.”
Apparently King only sees a threat by Muslims to America. But while ISIS is a threat, how is he blind to the growing right-wing terror threat we see in this country? I have never seen a more alarming level of “chatter” and acts of terror by people on the right as in the last few weeks.
Here are a few recent examples of what I mean:
1. Calls for violence surrounding gay marriage: After the Supreme Court ruled on Friday that gay couples have the same freedom to marry as the rest of us, Pastor Steven Anderson of the Faithful Word Baptist Church called for the stoning death of any pastor who would perform a same-sex marriage. He also called for the murder of all LGBT people, stating, “I hate them with a perfect hatred… I count them mine enemies.”
And keep in mind we have heard other Christian pastors in recent times also call for gays to be “put to death” and make statements like “homosexuality is a death worthy crime.” Can we responsibly dismiss these people as “crazies” until someone actually heeds their call and kills gay Americans?
2. Black churches are burning: At least two of the six black churches that caught fire last week are believed to have been cases of arson.
This threat is so serious that the NAACP issued a warning this week urging black church leaders to take “necessary precautions” to protect themselves from other attacks.
3. Right-wing politicians’ alarming rhetoric could radicalize people: After the Supreme Court recognized same-sex marriage, we heard the shrill cries of victimhood by some conservative politicians. For example, Mike Huckabee remarked that he expects civil disobedience by some Christians in light of the court decision. Let’s be blunt, this is Huckabee’s attempt to inspire civil disobedience. We also heard Louisiana Governor Bobby Jindal describe the Court’s ruling as “an all-out assault” against the “rights of Christians.”
The words of political leaders can inspire people to do good and to do bad. We saw that during the civil rights movement, when the inflammatory rhetoric of people like George Wallace validated the views of scared white people that equal rights for blacks was a threat to our nation as well as to them personally. The response to these words, by some, was violence against blacks and even white supporters of the civil rights movement. Similarly, the constant drumbeat we hear today from some conservative politicians that gay marriage is a threat to our nation and an attack on Christianity could possibly incite a person on the far right to violence.
4. We have 784 hate groups on U.S. soil. Per the Southern Poverty Law Center (SPLC), hate groups have grown by 30 percent since 2000. These groups, as the SPLC notes, include the Klan, neo-Nazis, neo-Confederates, racist skinheads, border vigilantes, and others. In fact, the SPLC is so concerned by the threat posed by these homegrown terror groups that last week it sent a letter to congressional leaders urging them to hold “hearings on the threat of domestic terrorism.”
Adding to my concerns is that we just witnessed a terrorist attack on our soil on June 22 in Charleston, South Carolina. And yes, I am aware that the U.S. government has not as of yet classified, and may never classify, this incident as “terrorism” under federal law. (How the assassination of a state senator and the execution of eight black people by a man who wanted to start a race war is not considered terrorism is truly mindboggling.) Putting aside the debate over the T-word, the killer, per his own manifesto was radicalized at least in part by the racist words of the Council of Conservative Citizens, a right-wing hate group per the SPLC.
And keep in mind that domestic terrorists have been killing far more Americans than Islamic-related ones over the past 14 years. As The New York Times reported last week, “since Sept. 11, 2001, nearly twice as many people have been killed by white supremacists, antigovernment fanatics, and other non-Muslim extremists than by radical Muslims.” Dr. Charles Kurzman, a terrorism expert, explained in that article: “Law enforcement agencies around the country have told us the threat from Muslim extremists is not as great as the threat from right-wing extremists.” Consequently, we need to be just as concerned when a person posts images associated with white supremacist causes on Facebook as when a person posts images supporting ISIS.
These facts truly deem the government’s warning of a potential terror attack on U.S. soil that much more credible. Let’s hope they are wrong. But if a terrorist attack is committed by a right-wing actor, we can’t claim there were no warning signs.
By: Dean Obeidallah, The Daily Beast, July 3, 2015
“Teamwork On The Supreme Court”: Discipline On The Left Side, Disarray On The Right
Now that the current term is over for the Supreme Court, analysts are digging into the record to draw conclusions about what happened. In a fascinating analysis, Adam Liptak writes: Right Divided, a Disciplined Left Steered the Supreme Court.
The stunning series of liberal decisions delivered by the Supreme Court this term was the product of discipline on the left side of the court and disarray on the right.
In case after case, including blockbusters on same-sex marriage and President Obama’s health care law, the court’s four-member liberal wing, all appointed by Democratic presidents, managed to pick off one or more votes from the court’s five conservative justices, all appointed by Republicans.
They did this in large part through rigorous bloc voting, making the term that concluded Monday the most liberal one since the Warren court in the late 1960s, according to two political-science measurements of court voting data.
“The most interesting thing about this term is the acceleration of a long-term trend of disagreement among the Republican-appointed judges, while the Democratic-appointed judges continue to march in lock step,” said Eric Posner, a law professor at the University of Chicago.
For example, this session there were 19 SCOTUS decisions that were decided 5/4. In 10 of those, the four liberals voted together and were joined by one conservative. In contrast, the conservatives only voted together 5 times.
Ian Millhiser suggests that the problem for the conservative justices is that they “represent three – and possibly as many as five – distinct versions of judicial conservatism.”
* The Ideologue – Clarence Thomas
* The Partisan – Samuel Alito
* The Reaganite – John Roberts
He points out that Scalia purports to be an “originalist” (like Thomas), but mostly votes as a partisan. And he can’t seem to find a way to characterize Kennedy.
Liptak credits the cohesion among the liberal justices to the leadership of Justice Ginsberg. But I’m also interested in how they managed to pretty consistently pick off one of the conservative justices to vote with them. I was reminded of something Adam Winkler wrote about Elena Kagan almost 2 years ago. He described her as a justice in the mold of Earl Warren.
Warren didn’t accomplish these by embarrassing his colleagues or by making sharper arguments on the merits. Warren was a master politician, one who’d sit with the other justices and bring them along slowly and steadily to his side. He sought to understand other justices’ concerns and address them. Unlike most of today’s justices, Warren was willing to work the halls to gain five votes.
He says this about why Kagan was chosen to be the dean of Harvard’s Law School:
She was seen as someone who could bring together a faculty known for ideological and personal divisions that institutionally hobbled the law school, especially when it came to hiring. As dean from 2003 to 2009, she calmed faculty tensions, launched an aggressive hiring spree that netted 32 new professors, and earned praise from both left and right.
I remember that some liberals opposed Elena Kagan’s nomination. But it strikes me that President Obama would see “bridge-builder” as a necessary role for someone to play on the Supreme Court. It’s exactly how people describe his tenure as President of the Harvard Law Review.
If that’s the case, here’s what we know about the 3 women on the Supreme Court: the senior member is Ruth Bader Ginsberg – the Notorious RBG – tiny woman who throws quite a punch. Then there’s my hero, Sonia Sotomayor, the wise Latina with a heart as big as they come. And finally, there’s Elena Kagan, the bridge-builder. What a team!
By: Nancy LeTourneau, Political Animal Blog, The Washington Monthly, July 2, 2015
“The Very Real Work That Needs To Be Done”: Republicans, Take Down That Flag — And Stand Up For Voting Rights
The abandonment of the Confederate battle flag by conservative politicians and organizations that previously defended it as a noble symbol of “heritage, not hate” is welcome, if long overdue. And the subsequent move by large corporations to stop selling the flag suggests that we may be experiencing an important cultural shift, that we may be entering a time in which it is no longer deemed acceptable to celebrate nostalgia for an era defined first by slavery and then by racial segregation enforced by officially sanctioned terror.
That kind of cultural change is, of course, a good thing, and the Confederate battle flag’s dramatically declining fortunes feel like a significant moment. Still, doing away with official reverence for the flag is largely a symbolic move that doesn’t come close to addressing the problems surrounding race in America, including disparities in treatment by the criminal justice system and the resurgence of voter suppression laws and other schemes designed to rig the elections in favor of powerful conservative interests. In recent days, the burning of black churches in Southern states, including one that had previously been burned down by the KKK, is a chilling and tragic reminder that violence aimed at the African-American community, violence with a long history, is not confined to a single act in a single city.
South Carolina Gov. Nikki Haley’s decision to ask the legislature to take the Confederate battle flag from its position on the statehouse grounds came only after the murders at Emanuel AME Church in Charleston. It is a sad fact of political life that it often takes a horrific act to galvanize sufficient political will to make necessary change, often after years of work have prepared the ground for what looks from the outside like a sudden shift. Civil rights activists, clergy, and Black lawmakers in South Carolina have been organizing against the official place of honor for the Confederate battle flag for decades, both before and after the flag was moved from the dome of the state capitol and raised over the Confederate memorial on the statehouse grounds in 2000. That activism continued as recently as two months before the Charleston shooting, when a group of African-American clergy taking part in a national gathering of People for the American Way Foundation’s African-American Ministers Leadership Council encircled the flag in protest.
South Carolina Gov. Nikki Haley may be reaping praise for her rising political stock, or for outmaneuvering “the agitators,” in the words of one gloating tweet, but this is not really a story about courageous leadership on her part. It is, rather, a story about the GOP leadership finally coming to terms, at least symbolically, with the Republican Party’s increasingly untenable position, in an increasingly diverse country, of being in partnership with groups like the Council of Conservative Citizens that foster nostalgia for our white supremacist past and deep resentment about the nation’s growing diversity.
In fact, right-wing responses to the Charleston shootings have been a study in political calculation, reflected in the face of RNC chief Reince Priebus looking over Haley’s shoulder last week. The Haley press conference was in part an effort to save floundering GOP presidential candidates from dealing with questions about the Confederate flag without distancing themselves from right-wing base voters or GOP activists in South Carolina, an important early primary state.
Initial right-wing responses to the shootings were mind-boggling and important to look at. Some commentators on Fox News downplayed evidence that the murders were racially motivated. Some sought to blame drug use and anti-religious feelings. Some even blamed the murdered Rev. Clementa Pinckney, who was also a state senator, based on his positions on reproductive choice and gun control.
National conservative leaders denounced the violence but were seemingly unwilling to engage with the violent racism that was at its root and bizarrely did all they could to find another explanation for the shooting. When asked if the shooting in Charleston was racially motivated, Jeb Bush said, “I don’t know.” Lindsey Graham tried to take the focus off race and advance the myth that the shootings were a hate crime targeting Christians.
Remarkably, even after the killer’s manifesto of racial hatred was released, some right-wing pundits continued to push the idea that the murders were an attack on Christianity, a “Satanic act” by someone with “socialist leanings.” That fits the right wing’s political narrative, which is grounded in dishonest claims that progressives are enemies of religious freedom. Republicans are counting on that narrative to help carry them into the White House in 2016, in part by reaching out to evangelical voters of color.
But taking down the flag is not going to change the Republican Party’s devotion to policies that harm people and undermine our democracy. As President Barack Obama said in his eulogy for the slain Rev. Pinckney, taking down the flag would be “one step in an honest accounting of America’s history,” but allowing ourselves to “slip into a comfortable silence” on difficult issues facing the country would be “a betrayal of everything Rev. Pinckney stood for.”
Voting rights advocates from around the country gathered in Roanoke, Virginia, on the day before Rev. Pinckney’s funeral to rally for a renewal of the Voting Rights Act, a centerpiece achievement of the civil rights movement that was gutted by the Supreme Court’s conservative justices to the cheers of many Republican politicians. We must make sure that the continuing conversation around the Confederate battle flag does not become a distraction from the very real work that needs to be done to dismantle the legacy of racism and bigotry that that flag represents. It’s not enough to take down the flag; we have to take down the discriminatory policies and practices that constitute that legacy. If Republican politicians truly want to reject that legacy, let them start by embracing the Voting Rights Advancement Act.
By: Michael B. Keegan, President, People For the American Way; The Blog, The Huffington Post, July 2, 2015
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