Scalia - The End Game
Marx opens the 18th Brumaire with the memorable statement, "Hegel remarks somewhere that all great world-historic facts and personages appear, so to speak, twice. He forgot to add: the first time as tragedy, the second time as farce." He gives some examples, the main one of course being the subject of the work - the dolt Louis Napoleon recapitulating his momentous uncle. We are now in a position to point out that a single personage, once the dreaded scourge of his enemies, can, by overstaying his time on the stage, become his own farcical doppelganger.
Oh yes, Scalia was feared. That lashing tongue, that penetrating intelligence - the fearless defender of our original constitution and the intent of its creators. Never mind that he is one of the most powerful and consequential people in the country, you have to shut up when you come before him as an attorney, often more loquacious than the other eight combined. Spinning out his hypotheticals to dazzle you, to confuse you. Not that he's convincing anyone, but what a show. His timing on entrance was good, appointed by Reagan and confirmed 98-0 just months before Bork was turned back. It's an open question whether Scalia would've done any better in that environment. Bork muffed his confirmation hearing by aggressively playing the ultra reactionary, by insisting that his genius be recognized by the lesser mortals in the room who held his fate in their hands. He is the Scalia who did not make it onto the court.
There was Edwards v Aguillard in 1987, where Scalia and Rehnquist voted to let the Louisiana creationist statute stand, Brennan and the rest overturning it. Scroll down a bit on that link and read Brennan's opinion, a model of sobriety and economy - the language used and legal principles touched on, what is necessary, no more, no less. Then read Scalia's dissent, histrionic and meretricious to the core. Imputations of bad faith all around. It's like he's writing a blog post on a right wing site after getting a little lubricated. It's not going to convince anyone, it's the rhetorical equivalent of putting his boot on your neck or more aptly, snarling threats and imprecations over his shoulder as he hurries away in defeat. Evidently the man is a hyper orthodox Catholic, more Catholic than the Pope. No English mass for him, oh no. I bet he hates Pope Francis with a special passion, considering his message of putting homophobia on the back burner (American Catholics, by the way, tend to be more gay-friendly than the general population).
Or Bush v Gore, I can hardly think straight about it thirteen years later. Here's the thing about elections and court rulings. You accept them even if unwelcome because you feel they were fairly administered - the votes were counted fairly, the judge was impartial and honestly considered your case. Maybe you lost this one, but you have a chance next time if you refine your arguments and make a better case. In the end, maybe it's you that's wrong - look at all those intelligent and convincing arguments being made on the other side, all the context being brought in. That's where Scalia, the chief defender of stealing a presidential election from his perch at the top of our system, becomes literally a seditionist, his thumb so transparently on the scale as to undermine belief in and loyalty to the entire enterprise. Remember that the election hinged on Florida, that 154 votes there separated Bush and Gore, and that Scalia and a bare majority of the US Supreme Court ordered the Florida recount stopped. This from a judge who is close to being a states rights absolutist, who is contemptuous of federal authority in other situations. That is the definition of results-oriented jurisprudence, of tayloring your arguments to the outcome you want. That is Antonin Scalia and it is the antithesis of fair judging. What a consummate irony that the opposing lawyers in Bush v Gore, Ted Olson and David Boies, are principal litigators in striking down gay marriage bans throughout the country, channeling the rapidly forming national consensus so strenuously opposed by this supreme bigot.
Here is the man who would overthrow the Affordable Care Act in toto without respect for the United States Congress, saved from himself only by the sanity of his confederate, the Chief Justice. Compare his tender regard for the Louisiana legislature in Aguillard, cited above. Here is the man who opens the floodgate of anonymous, unlimited giving in political campaigns in Citizens United, assuring us together with Alito that all will be well, even as evidence of large foreign donations inevitably comes out. I suppose the second line of defense would be that it's a regrettable side effect of the otherwise desirable outcome of delivering the political system to the wealthy.
Four times in the last three months and twice in the last week Scalia has been called out by Federal District Court judges in their rulings overturning state laws against gay marriage, most recently in Kentucky and Virginia. Scalia railed against the slippery slope in his dissent in Windsor last summer - if DOMA was invalidated at the federal level, then that same argument can be used to invalidate the state laws, said he. Righto, dude! say the district judges, quoting him and proceeding to do just that. In his ruling a few days ago, Judge John Heyburn of the Western District of Kentucky in Louisville reviews how this situation would be unthinkable short years before, noting that "A lot has changed since then" (bottom of page 2). Perhaps the Honorable Antonin Scalia will heed this sage advice. Ha! You don't know your man. The New York Times has it as Scalia Has Seen the Future, and Its Name Is Marriage Equality, a highly amusing account of this judicial revolt. The wizened old reprobate is being mocked by his own judges as well as the rest of society, all his magic and power evaporating before our eyes like an evil old wizard in a Harry Potter story.
How very, very fitting that a near coup de grâce was administered by Judge Arenda L. Wright Allen a couple days ago, a black female federal judge appointed by President Obama in 2011 to the Eastern District of Virginia in Norfolk. Judge Wright Allen cites Mildred Loving extensively at the very top of her ruling, the protagonist together with her husband Richard in the aptly named Loving case, also in Virginia, where the Supreme Court ruled anti-miscegenation laws unconstitutional in 1967. She too gives Scalia some good tweaks - hell, it's almost required at this point.
Scalia bristles at being portrayed as a bigot, though that is exactly what you'd think of anyone else in life who reaches into the most varied grab bag of arguments and practices, as long as they have the effect of stymieing a certain group of people. He is oblivious to the nefarious uses to which "states rights" have been put in this country for 180 years. He opposes affirmative action, he votes to overrule critical parts of the Voting Rights Act in place for fifty years. Now he's for states rights, now he's for federal powers; now he's for legislative intent, now he's for transcendent principles. And on and on, it's not the line of reasoning that counts for this man, it's the outcome. He always comes down against the expansion of rights, grabbing whatever legal weapon is ready at hand, consistency be damned. Even effectiveness is abjured, such things are for pygmies, it's today's genius thought that must be written down for posterity. Except that posterity is gone, it has moved away, and now you're looking like George Wallace. No, that's not fair either, because Wallace moved on from aggressive racism. He had to face the voters of Alabama, and even they tired of the never ending histrionics, of looking like menacing hicks to the rest of the country. Who does Scalia answer to? No one! He's on board for life, the whole damn country can bite him! He's the increasingly crazy uncle who grandma insists on inviting to Thanksgiving dinner, ignored as best we could all these years, now at long last the object of general ridicule and obloquy.
Mike Bertrand
Madison, WI
February 15, 2014
Update (2/27/2014): Texas weighed in yesterday, Judge Orlando L. Garcia of the US District Court for the Western District of Texas in San Antonio ruling Texas' ban of gay marriage unconstitutional. That's six for six, after Utah, Oklahoma, Kentucky, Ohio and Virginia. Judge Garcia was appointed by Bill Clinton in 1994, so let's consider this restitution for DADT and DOMA. The New York Times notes that:
Many legal experts predict that one or more of these cases will be taken up by the United States Supreme Court in the next year or two, particularly if the federal appellate courts reach conflicting conclusions. The Fifth Circuit, where the Texas case was headed, is known as one of the country’s most conservative appeals panels.
Make my day, Fifth Circuit! Countermand Judge Garcia, hurrying the day when the Supreme Court takes up the matter with it's 5-4 majority in favor of gay rights. Better yet, have the Supreme Court take it up and rule against gay marriage, so we can get voters and the general population into play. Karmic payback. Consider Wisconsin, where Republicans and their homophobic supporters got the ban through a constitutional amendment approved by the voters in 2006 (60%-40% incidentally). Time for a re-do. Earlier this month, the ACLU challenged Wisconsin's ban in Federal court in Madison, home of the excellent as well as Honorable William M. Conley, scourge of Wisconsin Act 10 (*) (the law crushing public unions in 2011), copyright trolls, and crazy people generally. It's a race to the finish line.
* Judge Conley invalidated key parts of Act 10, but was reversed by the Seventh Circuit.
Update (6/11/2014): It wasn't Judge Conley but Judge Barbara Crabb, also of the Western District of Wisconsin in Madison, who did the deed last Friday, June 6, 2014. Read the comments at that link to see how this is going in Wisconsin (set oldest comments first). Or read Christian Schneider, a usually infuriating conservative who reaches a level of humanity I can only aspire to, ending with this:
A few months ago, I recall reading a column arguing that we should be more "forgiving" of gays and lesbians. In a sense, I disagree. We should instead hope that gays and lesbians are more forgiving of us, given that some of us took so long to get to this point.
Judge Crabb writes a long decision and only obliquely criticizes Scalia (the phrase "Scalia, J., dissenting" appears seven times). A couple things struck me about her ruling. It looks like she's been working on this document for years, citing a number of books and other research. She mentions Nate Silver's statistical account of the increasingly positive electoral landscape for gay marriage by state, unbelievably cited by Governor Walker and his minions as a reason to leave the law intact (it will all take care of itself in time!). Also, she refused to stay her order or say that she or the Seventh Circuit wouldn't do so in the near future. I don't think other judges have done that and the first thought was that such an approach invites uncertainty, even anarchy, in this area of law. In fact, it hasn't. Milwaukee County and Dane County (Madison) rushed in and issued marriage certificates within minutes, as their clerks had said they would. More surprising is that the majority of counties in the state quickly followed in intervening days, 50 of 72 the last I saw. Headlines this morning declare State won't act for now on paperwork for gay marriages, our Attorney General, the odious J. B. Van Hollen, being about the last holdout in the state.