Monday, July 6, 2015

The Strange Descent of Antonin Scalia

North of Arkham, the hills rise dark...Oops, wait a minute, wrong monster story.  Let's start over again.

It has always amazed me that Antonin Scalia has been held up so long as a paragon of legal brilliance.  As long ago as the Bush v. Gore decision, it seemed to me that what he had to say was a patently fallacious justifiction for the five Conservatives' action, as brilliantly outlined in Vincent Bugliosi's short book, "The Betrayal of America."  I began to watch the comments of this supposedly great legal mind, and again and again, he seemed to be engaging not in a search for the truth, but for a justification for a predetermined decision, filled with sophistry and contempt for his listeners.  Needless to say, this is just about the worst basis on which a judge can operate; yet he has long reigned as the supposed intellectual champion of the Conservative judiciary. 

I have really wanted to write about this mystery for a long time, but extensive quotes from Supreme Court decisions do not a blog make, particularly one like mine, so I never did it.  What's more, I am not a lawyer, so I suspected that what I had to say, no matter how obvious, would simply be dismissed as the ravings of an ignorant autodidact.  So, I collected some source material and did nothing more.

The intemperate, nonsensical statements of Scalia over the last couple of weeks, however, have pushed me over the edge.  So, I am finally going to say something about his place in the history of American Jurisprudence.  I am going to leave Bush v. Gore to Bugliosi's capable hands, for those who really want to see a Supreme Court Justice eviscerated, and in fact, am going to deal with only two issues: his recent comments, and some of what he had to say in the gun control case of District of Columbia v. Heller, from 2008.  They illustrate two clear phases in his decline, I believe.  I will start with the latter. And just to keep things clear, lets remember the actual text of the second amendment:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Well, here is a little of what Scalia had to say about this seemingly clear single sentence, with a bit of a response from admittedly non-legally trained Green Eagle.  Let's see the masterful logic and grasp of the law demonstrated by Scalia:

"The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home...

The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause."

In other words, even though the framers of the Constitution deliberately put this remark in the second amendment, the only time in the whole Constitution that they qualified one of its passages, it doesn't really have any meaning.  Even though the amendment speaks about the militia, it doesn't have a thing to do with the militia.  I don't think you have to be a constitutional scholar to see that for the absurd rationalization that it is.

 "The “militia” comprised all males physically capable of acting in concert for the common defense."

In justifying his position, Scalia cites all sorts of supposed evidence; among them State Constitutions, failed alternatives to the second amendment and even supposedly analogous English law.  What it does not cite is Federalist Paper #29, which along with its brother, Federalist Paper #28, contains the explicit explanation of the intent of the people who actually wrote the second amendment:

 "To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured...the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable"

Scalia replies:

"The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing  army or a select militia to rule.  The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved."

But of course, the Antifederalists lost the argument, in favor of the Federalists, people who intended the militia to be controlled by the Federal government:

"If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions. If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force. If it cannot avail itself of the former, it will be obliged to recur to the latter."

Still, in Scalia's interpretation, thei Antifederalists' word (because it supports his own intent) counts for more than the actual statements of the people who wrote the amendment.  Of course, the Constitution was the result of negotiation between different factions.  But, in Scalia's mind, only the ones who agree with him count for anything.  But then, this is always the Conservative interpretation of original intent.

It should be noted that this absurd argument parallels his treatment of the recent Obamacare case, in which he gave immense weight to the claims of people who had fought the law for years, and no weight at all to the  clear statements of the people who voted for and passed the law.  Opinions only count to Antonin Scalia when they agree with Antonin Scalia; again, not a very desirable quality in a Supreme Court Justice.  And let us remember, we are hearing these all-too-familiar bogus arguments coming not from one of the endless legions of ignorant gun nuts you can find online, but from Antonin Scalia, in whose hands we have placed the fate of our system of laws.

"The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms."

What three State Constitutions say is highly relevant in Scalia's mind; the amendment's "drafting history," i.e. the actual words of the amendment's writers, as detailed in the Federalist Papers means nothing.

And let's be clear about this:  there is absolutely no chance that Scalia is not familiar with the Federalist Papers, so this cannot be written off as innocent confusion.

Well, there is so much more, but this should suffice to give you a taste of the Scalia of a decade ago- a person with utter contempt and indifference for anything which does not enable him to do what he wants.  This is the worst sort of judicial reasoning, and makes a mockery of the impartiality that we expect of judges.  However, things were about to take a serious turn for the worse, as we can see when we examine some quotes from his current decision:

"When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases."

By this reasoning, of course, it would have been a great crime to end the institution of slavery, or to extend the vote to women.  And now a bunch of his miscellaneous remarks:

"But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003."

"The opinion is couched in a style that is as pretentious as its content is egotistic."

"It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so." 

"Who ever thought that intimacy and spirituality (whatever that means) were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say."

"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."

It has also descended from any sort of legal reasoning to cheap taunting on the level of an eighth grade playground argument.

"Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall."

"This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it re-writes the law to make tax credits available everywhere. We should start calling this law SCOTUScare."

Note that Scalia reserves to himself the right, as we have seen above, to cite any unrelated thing as a justification for his behavior; he also, as with the second amendment, allows himself the privilege of utterly ignoring what the people who wrote and passed this legislation (still living in this case) had to say about what it meant.

And finally, a little more of this contentious nonsense:

"The Court's next bit of interpretive jiggery-pokery involves..."

"Pure applesauce. Imagine that a university sends around a bulletin reminding every professor to take the "interests of graduate students" into account when setting office hours, but that some professors teach only undergraduates. Would anybody reason that the bulletin implicitly presupposes that every professor has "graduate students," so that "graduate students" must really mean "graduate or undergraduate students"? Surely not."

"The somersaults of statutory interpretation they have performed ... will be cited by litigants endlessly, to the confusion of honest jurisprudence."

As I mentioned, I am not a lawyer, but like a lot of people, I've had the opportunity to read a few legal documents in my time.  The intemperate phrases above are not a legal opinion; they are a scream of anger at the notion that anyone would dare challenge him.  I would venture to say that the most provincial county court judge would be enraged to think that a submission like this was made to him, with the implication that he could be so confused about the law that it would possibly affect his judgment.  It is simply the scream of a toddler at not having his desires instantly gratified.  It is absolutely shocking that a Supreme Court Justice could permanently  and deliberately degrade the status of the court, and of the American justice system as a whole by placing a statement like this in its eternal record, with the implication that it is legitimate to make decisions based on such name calling and insults.

Again, there is lots more.  But this should be sufficient to chronicle the descent of a supposedly brilliant legal mind into first, a dishonest hack willing to use his position to advance the partisan interests of his backers without regard to truth or decency; and finally into a screaming, angry tyrant with no respect for the country's laws, and a heart filled with rage at the thought that anyone would dare to disagree with him.

Now comes the fun part- taking a stab at why this could happen to someone.  There is a suggestion that Scalia has descended into senility, his once great mind dulled by the passing of years.  I do not believe that is the case, but first a seemingly unrelated digression.

Serial killers are widely regarded as among the hardest criminals to catch.  Their lack of relation to their victims presents a painful problem for detectives, so that often they can go on killing until they make a serious mistake.  Experts in the subject have often remarked that these people, who start out with a belief in their own vast superiority to the common victims they sacrifice, grow more and more convinced of their invincibility with each successive crime, and consequently take less and less effort to cover up their real nature.  This growing lack of respect for their adversaries leads them to let their guard down step by step, until they are identified.  This is, I believe, what has happened to Scalia.  As the years pass; as he has succeeded in removing the real President from office and replacing him with a tool of the rich, as he rules nonsensically that corporations are people, as he defends religious fanaticism and open corruption without ever seeing his reputation and status diminished, as he writes that States are justified in executing people who they know to be innocent,  as he writes opinion after opinion that he knows are utter rubbish, without ever being challenged for his malice, let alone for his legal irrelevance, he has become more and more careless about disguising his belief that his supposedly supreme intellect allows him to do whatever he pleases, without concern for anyone or anything else.  Now, he has reached the point of openly mocking his fellow Justices for their inability to halt his malicious behavior, as certain serial killers have done with the police.  He is not senile, he is an out of control monster, a serial killer of the American Judicial system, turning its rulings into a contest of who has the power to force their will on the country, regardless of right and wrong.  And I give Scalia this much: I do not believe there is a thing the rest of us can do about it.


Professor Chaos said...

Conservative jurists like Scalia follow the same pattern as "Creation science" researchers. Instead of letting the facts lead them to a conclusion, they begin with a pre-determined conclusion, then look to shape the evidence to support it. Scalia seems to have gone a step further. He no longer bothers trying to concoct any legal arguments supporting his conclusion, he just throws rhetorical bombs at anyone who thinks differently and screams "unfair!" if the majority doesn't side with him.

Green Eagle said...

Well, that's pretty much exactly what I am saying here. Maybe throwing off his mask will be good for us, because he has been getting his way for decades now, and at least this may wake some people up to the irrational, corrupt way that Republicans like Scalia feel free to use their power.

Fat chance, huh? I'm afraid we're all going down with the ship.

Anonymous said...

Thank you for this piece, Green Eagle. Justice Scalia's pronouncements are sometimes terrifying. That business about marriage limiting one's ability to speak independently I think indicates something very emotionally unhealthy with him.

Green Eagle said...

And by the way, for anyone that noticed, sorry for leaving the a off of Scalia's name in the title of this piece. Somehow I missed it when I copied and pasted it from my original.

Poll P. said...

He's so full of himself, he thinks he's Henny Youngman..."Take my wife...Please!"

Green Eagle said...

Nobody better try to take Green Eagle's wife, or they are going to have some terrible parrot bites all over them.

Emily said...

Thanks for this. It was very interesting. I'm looking forward to looking more into it. Actually, not really. Reading Scalia makes my brain hurt and my eyes bleed.

I liked what you pointed about concerning his comments on the 14th amendment meaning that since marriage was defined as x when the amendment was written, that's what it means today. Too bad that legal reasoning doesn't apply to the 2nd amendment and he thinks we should only be allowed muskets.

Also, one more thing, and I have not looked into this a lot, but a rule of interpreting statutes is to give every word meaning and to interpret it in such a way that nothing is redundant or superfluous. But everyone seems to ignore the first clause of the 2nd amendment.