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“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

June 26, 2015 Posted by | Affordable Care Act, Antonin Scalia, SCOTUS | , , , , , , , , | Leave a comment

“Echos Of The Past”: Civil Rights Assaulted By Supreme Court

Last week was bittersweet for the cause of human dignity.

On one hand, the Supreme Court gave us reason for applause, striking down barriers against the full citizenship of gay men and lesbians. On the other, it gave us reason for dread, gutting the 1965 Voting Rights Act. The 5-4 decision was stunning and despicable, but not unexpected. The country has been moving in this direction for years.

The act is sometimes called the crown jewel of the Civil Rights Movement, but it was even more than that: the most important piece of legislation in the cause of African-American freedom since Reconstruction. And in shredding it, the court commits its gravest crime against that freedom since Plessy v. Ferguson in 1896.

That decision ratified segregation, capping a 30-year campaign by conservative Southern Democrats to overturn the results of the Civil War. Given that the Voting Rights Act now lies in tatters even as Republicans embrace Voter ID schemes to suppress the black vote, given that GOP star Rand Paul has questioned the constitutionality of the 1964 Civil Rights Act, one has to wonder if the results of the Civil Rights Movement do not face a similar fate.

Or, as Georgia Rep. John Lewis put it when I spoke with him Monday, “Can history repeat itself?”

Lewis was the great hero of the battle for voting rights, a then-25-year-old activist who had his skull broken by Alabama state troopers on Edmund Pettus Bridge in Selma, AL while leading a march against the use of poll taxes, literacy tests, morals tests, economic intimidation, clubs, guns and bombs to deny black people the ballot. The law he helped enact required states and counties with histories of voting discrimination to seek federal approval before changing their voting procedures. (Those that behaved themselves for a decade could be released from that requirement.)

The court struck down the formula the law uses to determine where discrimination lives (and therefore, which jurisdictions should be covered), saying the dates are too old to be reliable. As Chief Justice John Roberts noted in writing for the majority, the country has changed dramatically since that era. African-American electoral participation is at levels undreamt of in 1965.

And so it is. Because. The Act. Worked.

Using that success as an excuse to cripple it, noted Justice Ruth Bader Ginsburg in her dissent, is like “throwing away your umbrella in a rainstorm because you are not getting wet.” Indeed, had the nation not changed dramatically since 1965, would that not have been cited as evidence of the Act’s failure? Damned if you do, damned if you don’t, then: The Voting Rights Act never had a chance.

This court, said Lewis, “plunged a dagger in the heart” of the freedom movement. Nor is it lost on him that the majority which struck down this bedrock of black freedom included a black jurist: Clarence Thomas. “The brother on the court,” said Lewis, “I think he’s lost his way.”

So what now? Lewis says we must push Congress for legislation to “put teeth back in the Voting Rights Act.” Given that this Congress is notorious for its adamantine uselessness, that seems farfetched, but Lewis insists bipartisan discussion is already under way.

Fine. Let us demand that bickering, dysfunctional body do what is needed. But let us — African-Americans and all believers in freedom — also serve notice that, whatever lawmakers do, we will not stand placidly by as history repeats and citizenship is repealed, but that we will energetically resist by every moral means.

Saying that, I hear the ghostly echo of those who, once upon a generation, marched into Southern jails, singing “Ain’t gonna let nobody turn me around.” It is an ancient song of defiance that feels freshly — sadly — relevant to our times.


By: Leonard Pitts, Jr., The National Memo, July 3, 2013

July 4, 2013 Posted by | Civil Rights | , , , , , , , , | Leave a comment

“An Awful Crown Of Thorns”: Oppressed Christians And Second-Class Citizenship

With all this talk of gay people marrying one another, some people on the right are starting to bleat about how they’re being oppressed for their Christian beliefs—so oppressed, in fact, that they’re starting to feel like “second-class citizens.” Here’s CBN’s David Brody lamenting the sorrows of Kirk Cameron and Tim Tebow. Here’s Red State’s Erik Erikson predicting the coming pogrom (“Within a year or two we will see Christian schools attacked for refusing to admit students whose parents are gay. We will see churches suffer the loss of their tax exempt status for refusing to hold gay weddings. We will see private businesses shut down because they refuse to treat as legitimate that which perverts God’s own established plan.”). Here’s Fox News commentator Todd Starnes on the oppression that has already begun (“it’s as if we’re second-class citizens now because we support the traditional, Biblical definition of marriage”). And how is this second-class citizenship being thrust upon them back in the real world? Well, people are … strongly disagreeing with their position on an issue of public concern! It’s awful, I tell ya.

The impulse to jam that crown of thorns down on your head is a powerful one in politics. It means you’ve achieved the moral superiority of the victim, and the other side must be the victimizer. The problem is that these folks don’t seem to have much of a grasp on what second-class citizenship actually looks like. Last time I checked, nobody was forbidden to vote because they’re a Christian, or not allowed to eat in their choice of restaurants, or forced to use separate water fountains, or even be forbidden by the state to marry the person of their choice. That’s what second-class citizenship is. Having somebody on television call your views retrograde may not be fun, but it doesn’t make you a second-class citizen.

Of course, they say, “Just you wait.” But these fantasies of oppression are just that, fantasies. One of their favorite scare stories is that before you know it, Christian ministers are going to be hauled off to jail or have their churches lose their tax-exempt status if they refuse to marry gay people. Right, just like at the moment a Jewish synagogue will lose its tax-exempt status if the rabbi won’t preside over a Pentecostal wedding. And as for the florist who refuses to sell flowers to a gay couple, what he’s asking for is not a right but a privilege, the privilege to discriminate based on sexual orientation. It’s no different than if he refused to sell flowers to an interracial couple. But somehow, if he finds justification for that discriminatory practice in his faith, that’s supposed to make it a fundamental right.

I’m more than happy to admit that in certain circles, it’s more acceptable to be gay than to be an evangelical Christian. That’s what Chief Justice Roberts was getting at when he noted during the oral arguments about DOMA that “political figures are falling all over themselves” to endorse gay marriage, and thus gay people don’t qualify as a disfavored minority. But what we’re talking about here isn’t attendance at fashionable Upper West Side parties, it’s discrimination under the law. That’s what makes you a second-class citizen. It’s what gay people live with now, and it’s something that is never, ever going to happen to Christians, no matter how bad some of them may feel when people tell them they’re wrong.


By: Paul Waldman, Contributing Editor, The American Prospect, March 27, 2013

March 29, 2013 Posted by | Civil Rights | , , , , , , , , | Leave a comment

“Political Whiplash”: On Gay Marriage, GOP Is Damned If the Court Does, And Damned If It Doesn’t

However the Supreme Court rules on the question of gay marriage, Prop 8, and the Defense of Marriage Act (or DOMA, as it’s widely known), the rapid shifts in how the country views same sex marriages is giving the GOP a case of political whiplash, as some leaders try to go with the flow and others scream “stop.”

On the one hand you have Karl Rove envisioning a pro-gay-marriage Republican presidential nominee in three years; on the other, you have former Arkansas governor Mike Huckabee predicting a cataclysmic split in the Republican Party if that happens. If Republicans do flip on gay marriage, Huckabee said last week, “they’re going to lose a large part of their base because evangelicals will take a walk.”

So the immediate question facing conservatives is what outcome they should be quietly rooting for when the Supreme Court hands down its decisions. I think Hot Air’s Allahpundit has it about right:

I’ve read a bunch of pieces lately claiming that SCOTUS striking down gay-marriage laws will actually be a gift to GOP politicians because it’ll take this issue off the table. Rubio and Paul and Jindal et al. won’t have to squirm over whether to endorse SSM, back a federalist approach to the issue, or oppose it on the merits. They can just shrug and say “The Court was wrong but whaddaya gonna do?” and move on to other business. Take it from Huckabee: That won’t happen. Abortion’s technically been “off the table” for 40 years and yet it’s still an absolute litmus test for any potential GOP nominee (and any potential Democratic nominee too).

He goes on to argue that the best case for Republicans is for the court to hold up Prop 8, allowing pols to oppose it but say it should be up to the states. (It’s a rule of politics that in most cases when federal candidates insist a tough issue be left up to the states, they’re trying to avoid pissing off an important constituency.) Note that the “best outcome” is still pretty bad for the GOP: Young voters, who overwhelmingly favor gay marriage, and—oh yeah—voted in greater numbers in 2012 than seniors, will see through a pol trying to play both sides of the issue.

It’s also worth noting here that the Roe parallel works, but only to a point. As Media Matters’s Lara Schwartz wrote yesterday, the notion that the 40-year-old decision polarized the issue is nonsensical. As Yale Law School’s Linda Greenhouse (who used to cover the court for the New York Times) and Reva Siegel relate, “To the question of whether one can avoid conflict over such issues by avoiding courts, the answer from an accurate pre-history of Roe v. Wade is: no. The abortion conflict escalated before the Supreme Court ruled.”


By: Robert Schlesinger, U. S. News and World Report, March 26, 2013

March 27, 2013 Posted by | Civil Rights, Marriage | , , , , , , , | Leave a comment

“Evangelical Chauffeur’s: What The Religious Right Want’s From Romney

After Mitt Romney’s foreign policy spokesman Richard Grenell resigned on Tuesday in response to social conservative complaints about his sexual orientation and his support for same-sex marriage, Bryan Fischer of the American Family Association is claiming credit. On his radio program Tuesday afternoon Fischer–who was the first to criticize Grenell for being “an out, loud and proud homosexual”–boasted, “This is a huge win… I will flat out guarantee you [Romney] is not going to make this mistake again. There is no way in the world that Mitt Romney is going to put a homosexual activist in any position of importance in his campaign.” (Fischer is a former evangelical pastor who is prone to making controversial remarkssuch as, “we should screen out homosexuals who want to immigrate to the United States.”)

That, of course, raises an important question: if staunch religious conservatives such as Fischer can dictate Romney’s policy and personnel decisions, what other demands will they make?

I called Fischer to find out. He says there are a number of stances on issues Romney has thus far avoided that would reassure the “pro-family” community. The most significant includes a pledge to veto the Employment Non-Discrimination Act, which would protect gays and lesbians from workplace discrimination, reinstating Don’t Ask Don’t Tell (DADT) and removing spousal benefits for the domestic partners of federal employees. Fischer laid out these same ideas in his initial attack on Grenell. “Romney needs to make the following public commitments… if he is to have any hope of generating even modest enthusiasm in the base…. If he’s going to pander, he’d better start pandering in a big, fat hurry.”

Here’s what Fischer told me on Wednesday:

One thing [Romney] can do is come out and endorse North Carolina’s marriage amendment. Sanctity of marriage is a very important issue for the pro-family community. I would urge him to restate his commitment to rigorously defend the Defense of Marriage Act (DOMA). I would urge him to commit to revoking spousal benefits for unmarried domestic partners. President Obama has extended spousal benefits to partners of federal employees in violation of DOMA. We need to hear Romney take a position on reversing that. He needs to publicly commit to vetoing the Employment Non-Discrimination Act (ENDA) if it reaches his desk. I think he should reinstate the ban on homosexuality in the military. He said he won’t do that, but he should make it clear that military chaplains on his watch will have freedom to teach biblical view of sexuality without any fear of repercussions.

Romney has a nuanced–some might say slippery–relationship with a few of these issues. On DADT Romney criticizes President Obama for signing the law repealing it and allowing gays to serve openly in the military. But his rationale is not exactly that it was the wrong policy in the abstract, only that it was too stressful for the military. Therefore he says it would be even more disruptive to reverse the repeal now. This complicated position has the virtue of being partially acceptable to people on both sides of the issue. He must attempt to keep the anti-gay conservative base mollified while not alienating the large majority of the public that supported letting gays serve. His position allows him to sidestep taking any stance of accepting or rejecting homosexuality, while nominally caring only about what is best for the military as a whole. Of course, what was best for the brave men and women already serving in the military who happened to be gay doesn’t enter into this calculation. It is politically shrewd, albeit nakedly calculating and cowardly.

On some of these other hot button issues, such as benefits for the domestic partners of federal employees and ENDA, Romney hasn’t taken a stance in this campaign. His campaign declined to comment on these issues. But Romney has spoken about ENDA in the past. Back in 1994 when he ran for U.S. Senate he pledged to co-sponsor ENDA if he was elected. Then, in 2007, he said he would not support ENDA as president. So Fischer should rest assured that, as of Romney’s most recent flip-flop, he opposes protecting gays from discrimination in the workplace.

The other issues are essentially symbolic. The president has no say over state ballot initiatives regarding marriage. The supposed oppression anti-gay military chaplains is an obscure myth that no one outside the religious right even knows about. It is mostly idle conjecture that chaplains will not be allowed to insult homosexuality now that gays can serve openly in the military, not actual evidence of any chaplains being punished.

Symbolism, though, is important to Fischer, as it is to many social conservatives. Unlike other evangelical leaders, who pretended that their only objection to Grenell was his advocacy for marriage equality, Fischer readily admits that he doesn’t think Romney should have openly gay staffers. “If Richard Grenell had kept his sexual preferences to himself, none of this would have happened,” says Fischer. “Nobody would know, nobody would care.” I asked if that meant he thinks gays can work on the Romney campaign only if they remain in the closet, but not if they are open about their sexual orientation. Fischer didn’t dispute that characterization of his views, saying, “In [Washington], D.C. personnel is policy. If [Romney] wants to reassure the evangelical community that he’s with us on the sanctity of marriage then he should not make hiring decisions that confuse us about where he stands.”

The Romney campaign declined to respond to Fischer’s comments. Romney has butted heads with Fischer in the past, most notably when he criticized Fischer’s lack of “civility” at the Conservative Political Action Conference last year.

Given that Fischer has expressed misgivings about Romney in the past, especially about whether he is truly committed to the social conservative cause, I wondered why Fischer was so happy that Romney dumped Grenell. Isn’t this just more evidence that Romney doesn’t, in his heart, oppose homosexuality; he just will bend to the conservative base as much as he has to? Then again, does it matter? Or is the proof that you can control a candidate as valuable as the proof that he personally agrees with you? “You would prefer to have a candidate that you know is with you in his heart on these issues,” says Fischer. “But 10 years from now all that’s going to matter is the policies he pursued, it’s not going to matter why he pursued them. If he will do the right thing because it is politically expedient, then he will have done the right thing. At the end of the day that’s what’s going to count.”


By: Ben Adler, The Nation, May 3, 2012

May 3, 2012 Posted by | Election 2012 | , , , , , , , , | Leave a comment

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