On Antonin Scalia’s (In)Famous DissentsWhat a great week last week was for America! I am talking about, of course, the Supreme Court decisions upholding the Affordable Care Act and the Fair Housing Act, as well as finding same-sex marriage bans unconstitutional. (I mean, yes, upholding the death penalty still sucked, but we take what we can.) Yet on some level, it was an irritating week too, due to primarily all the fawning over the world’s most overrated jurist, Antonin Scalia.
Let me be clear here. It is not that I am irritated by the fact that the decisions were not unanimous – SCOTUS decisions rarely are. Nor is it about my deep contempt for Scalia as a partisan hack and his so-called “values” (according to which the author of this here blog is not a real American, nor even a real person); certainly, he’s not the first asshole in power, nor is he going to be the last. Rather, I bristle at the adulation Scalia receives in the press and even among the academia for his supposedly acerbic wit, sharp legal analysis and “passion”.
OMG, he said “SCOTUSCare”! What wit! And how original! Aren’t we all in stitches. “Pure applesauce?” Pure Shakespeare, more like! What an unchallenged master he is of clever metaphors!
I find this unfathomable, so much so, it makes me wonder whether Scalia can at this point simply smear some excrement on a page as his “dissent”, then sit back and wait for the effusive praise to pour in. Thing is, when I happen to read Scalia’s opinions, I invariably think to myself: “Jesus Christ, how did this man even pass the bar?” And then I look around and see the accolades being slathered thickly and reflexively on his non-jurisprudential screeds, and I nod: “Yep. This is why.”
Hey, Gods of legal commentary, can you please just knock it off already? Can we all stop pretending Scalia is some contrarian genius? Let’s say it all together, because it should be obvious to anyone with half a brain (to say nothing of a law degree): the Emperor has no clothes. Also, he’s gross and full of himself.
Let’s start with Scalia’s famous “reasoning”. If you have no shame whatsoever, there are any number of ways to “reason” fraudulently. One of the easiest is to rhetorically intimidate your audience; not your opponent necessarily (though it always helps to put him on the defensive), but the witnesses. Engage in lots of rhetorical yelling, throw out ponderous fifty-cent words, denounce your opponents as out-of-touch ne’er-do-wells – and you’ll be surprised how many people, even smart people who should know better, will cower. That’s what Scalia likes to do most. But you have to remember, “passion” isn’t reason; big words aren’t reason; rhetorical bullying isn’t reason. To get to what the person is really saying, you must strip away the garnish and the frills, examine the core of his position.
It is hard to discuss Scalia’s irrationality for the same reason that it can be hard to discern a method to someone’s madness; madness has a blunderbuss quality to it, its nuggets scatter all over the place. When Scalia makes a statement that’s just wrong, it’s always just wrong in a number of different ways, and it can be exhausting to catalogue them. Still, there is a pattern. If you peel away all the purple prose, all the nonsense words and all the overwrought analogies, his reasoning, such as it is – in every case, whether writing for the majority or (as per usual) his dissent – invariably boils down to this formula:
1. If he likes the law at issue in the case and wants to uphold it, he reasons that, because the Constitution does not explicitly address the subject matter of the law, or some part of the subject matter, the Supreme Court is without power to rule on its constitutionality – therefore, the law stands.
2. If he doesn’t like the law and wants to invalidate it, he reasons that because the Constitution does not explicitly address the subject matter of the law, or some part of the subject matter, the legislature was without power to enact it – therefore the law is unconstitutional – a novel right, alien to American traditions, and an undue burden to Constitutional rights (more often than not creatively interpreted).
Every single one of Scalia’s opinions, reduced to its skeletal form, is one or the other. Okay, but what makes Scalia like some laws and dislike others? That becomes clear once you realize that Scalia’s famed Constitutional “originalism” is nothing of the sort. Rather, his originalism is of a socio-political, not jurisprudential, kind; and it is severe enough that it has occasionally put him at odds even with other conservative judges on the Court. What inspires him to embrace some laws and therefore adopt Justification 1, and reject other laws under Justification 2, is a bizarre belief that the US Constitution, in a larger sense, requires the American society to adhere to the social and cultural norms, values and mores of the late 18th century, and only those norms, values and mores. Any socio-political diversion from that socio-cultural model is fundamentally illegitimate in his view; even duly enacted Constitutional amendments that post-date 1789 are suspect, if they do not serve to keep America mummified in its 18th-century form (or what Scalia imagines was its 18th-century form).
His role as a judge then, as he sees it, is to make sure that laws that come before the Court are consistent with what he believes was the Founding Fathers’ vision – a living time capsule, a society frozen forever in all its ways, minus (perhaps) the powdered wigs and the horse-drawn carriages. I don’t know whether Scalia wants Anno Domini 1789 with all the trimmings, including discrimination against Catholics and people of Italian descent – but if Anne Coulter wants women stripped of the vote, it wouldn’t surprise me if Scalia would be on board with having his own group beaten down again, in the name of tradition. It is ironic, therefore, when he accuses his colleagues of arrogance in supposedly imposing their private views on people – for he himself, more than any other SCOTUS member in history, acts more as a socio-cultural gatekeeper than a true judge. He is a cartoonish personification of the very mad social engineer that is the bugbear of the right-wing’s constructed nightmares; he is the evil he accuses his (more) liberal colleagues of being – an extraordinary role to assume for a man who likes nothing so much as to accuse less extreme judges of “imposing” their views on the American people when they have the temerity to rule differently from him.
Even from a purely practical standpoint, his is a very foolish and naïve view, for perhaps the clearest lesson history teaches us is that the world is always changing, no matter what people who oppose change do. It has not been for a lack of attempts – brutal attempts in many cases — that no conservative society has ever been able to freeze itself in time, not even Japan under the Shogunate. But it is a view that Scalia nevertheless embraces whole-heartedly. Therefore, the test that he employs when evaluating a case is not what outcome is consistent with the letter and the spirit of the Constitution, but what outcome will produce changes that will take America back closer to the way it was circa 1789, or prevent changes that will make it more different from the original picture.
Take the simplest example, the death penalty. Whatever other people’s arguments for or against, Scalia’s is the most stupefying: the death penalty is not cruel or unusual within the meaning of the 8th Amendment because it wouldn’t have been considered cruel and unusual at the time the Constitution went into force. In other words, we, as a society, are commanded to apply the same views to the death penalty as would have been prevailing (according to Scalia, at least) in 1789.
You may scratch your head at this point and say: “Who cares what people thought about cruelty in 1789? It’s 2015!” – and you would be right. The Framers created broad outlines for the American government and the justice system, but it is absurd to infer from this that they also wanted the minutiae of their personal beliefs – such as, for instance, beliefs about the relative cruelty or unusualness of particular criminal penalties — to define the American society and its legal and political cultures in perpetuity. It is also highly speculative and arbitrary to decide that they perceived their own society, as it existed then under the new Constitution, in that very moment in time, as the Perfect World that must be preserved in every detail – as opposed to intending the Constitution to be a vehicle for positive, if occasionally sluggish, change. Notice that the Eighth Amendment does not define what constitutes a cruel or unusual punishment – clearly leaving it to future courts to determine based on contemporaneous facts. (But Scalia would say the definition isn’t there because in 1789, everybody knew, and was in perfect agreement on, what those terms meant.)
Scalia’s guiding principle is also deeply ahistorical. Like the less educated and less profoundly thinking conservatives, he presumes that the deep cultural and political divisions in today’s society are something new and unprecedented, that public mentalities of the past were harmonious and monolithic, that everyone (or, at any rate, everyone who “counts”) agreed what “cruel and unusual” meant, before various malefactors – gays, feminists, educated folk, colored people, non-Christians, and all others who are, of course, not real Americans – out of sheer evil sowed the seeds of discontent in order to fracture the “American People”™. An even cursory study of history would have disabused an intelligent student of such a silly notion. (Scalia would do well to study the history of the land of his ancestors, in particular.)
The American Revolution was famously inspired by the European Enlightenment. It is ironic that Scalia trashes other judges as university elitists who are out of touch with Real Americans™ — simple farmers, people of the land, the common clay of the flyover states (“you know … morons”) – because who does he think the Founding Fathers were? The Enlightenment was clearly embraced by the educated elites, and that’s precisely the point – there is no evidence whatsoever to suggest that its ideas represented the core values held by the general public of the Thirteen Colonies. Many of the Enlightenment’s ideas were new and controversial; after all, the Constitution was enacted less than a century after the Salem Witch trials. Surely, the eighteenth century was one of watershed cultural changes in the Western civilization, but societies in a state of flux are never uniformly-thinking, and in any event, those watershed changes took place primarily among the elites. On this point, it is worth it to remember the old high school factoid about how a third of American colonists actually opposed the Revolution, a third didn’t care, and only a third enthusiastically supported it. Thus, making assumptions about prevailing attitudes as to what was considered “normal” in that society, on the basis of what a handful of its leaders supposedly thought, is highly presumptuous. Bottom line, even if we could, arguendo, ascertain what the Founding Fathers thought about a thing, this would not necessarily indicate what the majority of the American public thought on the same issue.
Of course, Scalia would have an answer for that too. In his last week’s dissent in Obergefell v. Hodges, he “solved” the “problem” of the majority of Americans supporting same-sex marriage by insinuating that those people just don’t count. So, his beef with the majority is not that their views are inconsistent with the prevailing attitudes of the American public – because, in fact, they are – but that they are inconsistent with the views of the people who “count”. We don’t need to spell out who “counts” in Scalia’s view and who doesn’t.
An even more fundamental, if a bit mundane, problem here is one of evidence. Scalia peppers his opinions with pronouncements about what the Framers supposedly believed about this or that issue, or what the prevailing societal attitudes were in 1789 – offering them as fact without any evidentiary basis, without a single citation to a peer-reviewed work, or original sources, or something, in a blatant violation of the rules of evidence that even a law student could immediately recognize. Speculating about history and the public’s thinking is fine for a blog or a newspaper column, but it has no place in a judicial opinion. Lawyers employ an extreme form of fact-checking, which requires every statement of fact (e.g. “Thomas Jefferson thought the Moon was made of green cheese”), other than absolutely settled facts (e.g. “There are seven days in a week”) to be properly submitted into evidence so that its veracity and reliability may be litigated. Once that has been done, a judge’s opinion may only be based on what is in evidence. For a judge to use his own beliefs about historical “fact” as evidence commanding this or that result is improper and unethical. This is what we law kids like to call “conjecture” and “facts not on the record”.
Scalia’s extreme social conservatism is the reason why his construction of the Constitution isn’t nearly as consistently strict as his fans like to believe. This, after all, is the justice who likes to bemoan the very existence of courts, and the Supreme Court in particular, and all the judging by its
judges unelected lawyers (as if they were judges!), notwithstanding the fact that this is exactly what the Constitution provides; the justice who defined “expression” as “money” at one time, and at a later time lamented that “words have lost all meaning”; the justice who lamented the supposed imposition of moral values on states (values with which he disagrees, of course), one who just last week praised the wonders of the legislative process as a vehicle for change, yet voted to uphold the part of DOMA designed to thwart that very process and take decision-making power away from state legislatures; the justice who ruled that corporations are “persons” (though the word “corporation” appears nowhere in the Constitution), but also said in an interview that women aren’t people, legally speaking, and thus aren’t entitled to equal protection, nor to any other right provided for in the Constitution. *
I mentioned previously that there are several methods for fraudulent “reasoning”. Rhetorical shouting-down is one. Another is dismissing one’s opponent out of hand. The effect is particularly spectacular when your opponent has put forth a long, meticulously argued, well-reasoned argument. You respond by doing a My Cousin Vinny impression: “Everything that guy just said is bullshit.” You don’t explain why; you don’t address any of the points made; you just issue a blanket declaration that it’s all worthless in the strongest possible terms.
Speaking of terms … “Argle-bargle”? “Tutti-frutti”? “Jiggery-pockery”? “Pure applesauce”? These aren’t words; they are cutesy place-holders for expletives (which, by the way, are real words). This isn’t English. It’s a miserably infantile pretend-language employed by someone who wants to say a swear but (1) doesn’t have the balls to issue a proper expletive-filled diatribe; and (2) doesn’t have the brains to avoid using expletives by converting said diatribe into something subtle and elegant, that would be more appropriate in a judicial opinion. Because let’s be completely honest here: when Scalia writes “pure applesauce” to describe an opinion with which he strongly disagrees, that’s code for “horseshit”. (Nino must not be a big fan of applesauce.)
Children and very shallow adults do this. Substituting baby talk for bad words makes sense to people who believe that bad words are in and of themselves imbued with a mystical power of evil. These are people who don’t realize, or don’t see any significance in, the fact that telling someone to “go yakity-yak yourself” still means “go fuck yourself”, even without the f-bomb. These are people who believe that it’s the sound, not the message, that makes Jesus and the angels cry. It’s the ultimate triumph of form over substance. And it’s especially pathetic to see a Supreme Court justice do this repeatedly. Then again, maybe he’s just lazy. The man, after all, freely admitted that he had not read the ACA before ruling on it, because who has the time to read such a behemoth bill when there are barely enough hours in a day to mine World Net Daily and the Palin blog for next week’s bons mots?
And speaking of bons mots: “agenda”. Really, Nino? How low can you stoop? The right loves the word “agenda”, thinking that it’s a perfect gotcha: that individuals who advocate for policies of which the right does not approve are merely looking out for themselves – as opposed to the Real Americans™, who are looking out for everybody, or at least everybody who “counts”. However, while I would not be surprised to see a right-wing pundit to spew Palinese, it’s disheartening to see a Supreme Court Justice adhere to a talking point so idiotic.
Everyone who brings a lawsuit is “pursuing an agenda” – everyone. That “agenda” is invariably about personal and group interest. In fact, the American justice system has rules about standing, which essentially boil down to needing a personal stake in the subject matter of the litigation as a basic requirement for a valid lawsuit. That very word – “agenda” – implies that what is perfectly acceptable when done by the historically privileged class is fundamentally illegitimate when done by a historically disadvantaged group. Rich men seeking the right to straight-up buy politicians? Just regular well-meaning citizens exercising their right to free speech. Moral scolds, entirely too preoccupied with other adults’ consensual sex lives, pushing through laws making homosexuality a crime? Just the wonderful legislative process in action. Gays seeking to have their sexual orientation decriminalized? Nefarious pursuers of a radical agenda.
To accuse historically disadvantaged groups of pursuing an “agenda” of gaining equal rights and opportunities – whether it’s gays seeking to marry, advocates seeking to provide the poor and the middle class with basic health coverage, women seeking equal pay for equal work, people of color seeking an end to institutionalized racism – is to suggest that these groups, precisely by virtue of being disadvantaged, may not avail themselves of Constitutional rights and mechanisms to achieve parity with the privileged. (How’s THAT for respecting the Constitution?) It’s to suggest that appealing to the Constitution to achieve a more equalitarian society, to diminish those disadvantages, is far too selfish, too narrow to be even morally proper, to say nothing of legally valid. Won’t somebody please think of everybody, and by “everybody” we mean Real Americans ™ who “count”, and by “Real Americans ™ who ‘count’” we mean white, Christian, religious, rural, preferably uneducated, conservative males from the South or all those states in the middle? Scalia’s use of the word “agenda” to refer to the disadvantaged trying to better their lives proves clearer than anything else he’s said or done that in his view, only a small minority of Americans are entitled to anything at all under the Constitution.
I do believe him when he says that he has no problem with such historically disadvantaged groups. Or rather, I believe that he genuinely believes he has no problem with such groups. But his magnanimity comes with one hell of a caveat: disadvantaged groups are okay, as long as they meekly and graciously accept white conservative men’s supremacy, bequeathed to us by the Founding Fathers to last until the end of time, and never do anything so selfish and un-American as to look out for their own interests.
Tl;dr version: Scalia is an intellectually shallow, deluded, retrograde, vulgar man; and if that wasn’t enough, his writing is terrible. The end.
* In other words, in Scalia’s perfect world, women have no right to be free from unreasonable searches and seizures, no right to counsel, no right to a speedy and public trial, no right against cruel or unusual punishment (perfectly fine to dismember women in the town square, but not men), no right against self-incrimination, no right to freedom of expression … you get the picture. Despite the many legal disabilities that affected women in the past, I don’t believe even the Founding Fathers held such extreme views on women’s place in society. I mean, this is Taliban levels of misogyny; treating women as non-people, at least in criminal trials, was never true of the Anglo-American legal tradition.