Linda Greenberg: Resetting the Post-Scalia Supreme Court

[boutons_deux]

In the days since Justice Antonin Scalia’s death, there has been plenty of talk about the substantial impact his absence will have on the Supreme Court’s docket. I’d like to shift the focus to the Roberts court itself.

Fate has handed the justices a chance to hit reset.

If that seems an uncharitable, even tasteless observation, so be it. I’ve become increasingly concerned, as my recent (http://www.nytimes.com/2016/02/04/opinion/the-supreme-court-vs-the-president.html?_r=0) columns (http://www.nytimes.com/2016/01/21/opinion/scalias-putsch-at-the-supreme-court.html) have suggested, that the conservative majority is permitting the court to become an agent of partisan warfare to an extent that threatens real damage to the institution. Justice Scalia’s outsize role on and off the bench contributed to that dangerous development to an outsize degree.

I’m not claiming that he was completely responsible. Given the Supreme Court’s place in American life, there is no way it can avoid getting singed by the polarizing politics of the day. Nor was Justice Scalia solely to blame for the court’s drop in public esteem as demonstrated by a Gallup Poll (http://www.gallup.com/poll/4732/Supreme-Court.aspx) in September showing that more people disapprove of the Supreme Court (50 percent) than approve of it (45 percent). While this is a notable departure from the historic trend, other governmental bodies have fared far worse (Congress has a 16 percent approval rating), and the court is to some degree caught in the back draft of generalized public mistrust of government.


It’s a situation that nonetheless calls for concern and exquisite care. Chief Justice John G. Roberts Jr. appeared to reflect that concern, and not for the first time,when he spoke (http://hosted.ap.org/dynamic/stories/U/US_SUPREME_COURT_ROBERTS?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT) earlier this month at New England School of Law in Boston. Contrary to the impression created by highly partisan Senate confirmation hearings, he said, Supreme Court justices are not in pursuit of an agenda and

“don’t work as Republicans or Democrats.” :lol Holy Shit!

Maybe not, but two weeks before the chief justice’s visit to Boston, the court, acting on its own motion, turned a statutory case into a major constitutional one when it expanded its review of President Obama’s deportation-deferral program to include the question of whether the president has violated his constitutional duty to “take care that the laws be faithfully executed.”

And a few days after the Boston visit, the court took the astonishing step (http://www.nytimes.com/2016/02/10/us/politics/supreme-court-blocks-obama-epa-coal-emissions-regulations.html) of blocking the administration’s major climate-change initiative before a lower court had even had a chance to review it.

The “take care” question mapped perfectly onto the dissent that Justice Scalia read from the bench in June 2012 when the court struck down (http://www.supremecourt.gov/opinions/11pdf/11-182.pdf) portions of Arizona’s anti-immigrant statute. (Chief Justice Roberts was in the majority.)

Justice Scalia took the occasion to excoriate the Obama administration for an earlier version of its deportation-deferral program — a policy that was not at issue in the Supreme Court case and had not even been announced when the case was argued.

“Are the sovereign states :lol at the mercy of the federal executive’s refusal to enforce the nation’s immigration laws?” Justice Scalia demanded, (http://www.nytimes.com/2016/02/04/opinion/the-supreme-court-vs-the-president.html?_r=0)in a public performance that was as inappropriate as it was attention getting.

The Feb. 9 order blocking the president’s Clean Power Plan was issued without explanation and over the dissents of the court’s four liberals. I don’t know whether Justice Scalia was the driving force behind this highly unusual intervention in an ongoing regulatory review. But clearly it couldn’t have happened without him. Neither could the court’s other recent destabilizing interventions, including the 5-to-4 decision in Shelby County v. Holder (https://supreme.justia.com/cases/federal/us/570/12-96/) to gut the Voting Rights Act of 1965.

The voting rights decision was a pet project of Chief Justice Roberts, an opponent of the Voting Rights Act since his days as a young lawyer in the Reagan administration.

But Justice Scalia was much more than just a passenger. His behavior during the oral argument gave a public face to the ugliness behind the attack on the foundational civil rights law, which both houses of Congress had reauthorized by overwhelming margins.

Addressing Solicitor General Donald B. Verrilli Jr. during the argument on Feb. 27, 2013, Justice Scalia referred to the 2006 reauthorization and observed:

“And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. I don’t think there is anything to be gained by any senator to vote against continuation of this act. And I am fairly confident it will be re-enacted in perpetuity unless — unless a court can say it does not comport with the Constitution.”

A “phenomenon that is called perpetuation of racial entitlement”? “It’s been written about”? I must have missed that reading assignment.

Then, two months ago, Justice Scalia’s comment during the argument (http://www.nytimes.com/2015/12/09/us/politics/supreme-court-to-hear-arguments-on-one-person-one-vote.html) in the University of Texas affirmative-action case embraced the so-called mismatch theory beloved by opponents of affirmative action when he said that some minority students would benefit from “a less advanced school, a slower-track school where they do well.” I can only assume that somewhere out there is a tract that equates protection of the right to vote with perpetuation of racial entitlement.

His frequent parroting of right-wing talking points in recent years may have reflected the contraction of his intellectual universe. In an interview with the writer Jennifer Senior (now a New York Times book critic) in New York magazine in 2013 (http://nymag.com/news/features/antonin-scalia-2013-10/index1.html),

Justice Scalia said he got most of his news from the car radio and from skimming The Wall Street Journal and the conservative Washington Times. :lol

He said he stopped reading The Washington Post because it had become so “shrilly, shrilly liberal” that he “couldn’t handle it anymore.”

And while earlier in his Supreme Court tenure, he prided himself on hiring one politically liberal law clerk among his four clerks every year, he abandoned that practice at least a decade ago. In a recently completed (and as yet unpublished) study, Neal Devins (http://www.wm.edu/as/publicpolicy/facultydirectory/affiliated_faculty/devins_n.php), a law professor at William and Mary, and Lawrence Baum (https://polisci.osu.edu/people/baum.4), a political scientist at Ohio State, calculated the percentage of each justice’s law clerks over the past 11 years who had previously clerked for a Democratic-appointed judge on a lower court. (This is a measure that scholars deem an acceptable proxy for the ideological orientation of a justice’s chambers.)

Justice Ruth Bader Ginsburg ranked the highest, with 76.7 percent of her clerks having earlier clerked for Democratic-appointed judges.

The figure for Chief Justice Roberts was 16.3 percent.

Justice Scalia and Justice Clarence Thomas were tied for the lowest, at 2.3 percent each.

In their paper, “Split Definitive: How Party Polarization Turned the Supreme Court Into a Partisan Court,” the authors offer their observations about the elite social networks in which Supreme Court justices, no less than other power players in Washington, spend their lives. They note “a growing ideological divide among affluent, well-educated Democrats and Republicans,” with the result that “Democratic elites are more liberal than other Democrats; Republican elites are more conservative than other Republicans.” For the Supreme Court, they conclude, “justices on both the left and right are part of social networks that reinforce conservatism for Republican justices and liberalism for Democratic justices.”

These insights might help explain why someone as smart as Antonin Scalia seemed so un-self-conscious about his inflammatory rhetoric. He was simply giving voice to those he spent his time with. His world was one that reinforced and never challenged him.

About 10 years ago, I attended a gathering of Canadian judges and lawyers at Cambridge University. Justice Scalia gave his stump speech there about how his Constitution was not “living” but “dead,” with legitimate constitutional interpretation limited to the words and original understanding of the document’s authors. He may or may not have known that in Canada, constitutional interpretation starts from the premise that “the Constitution is a living tree (http://www.nytimes.com/2013/10/17/opinion/greenhouse-a-tree-grows-in-canada.html?_r=0).” In any event, his speech fell flat; rather than greeting his remarks with the appreciative chuckles and applause he usually received, the audience sat on its hands. I remember his disconcerted expression.

Justice Scalia received relatively few opinion assignments in major cases, either from Chief Justice Roberts or Chief Justice William H. Rehnquist, with whom he served for 19 years. The reason was obvious: He refused to compromise, a trait that put him at risk of losing a majority in close cases. I used to wonder why he didn’t value effectiveness over perfection, why he would not rather compromise than lose.

But I came to realize that Justice Scalia wasn’t playing the inside game. No matter that he never persuaded a majority of his fellow conservatives on the court to sign up for his brand of originalism.

What mattered was his ability to invoke originalism as a mobilizing tool outside the court, in speeches and in dissenting opinions. The message was that courts have no business recognizing “new” rights.

(Except, evidently, new rights of which Justice Scalia approved, such as an unconstrained right for corporations to spend money in politics.)

The audience for his dissents, he told Ms. Senior in the New York magazine interview, was law students. The mission he set for himself was cultivating the next generation.

For a long time, he did a good job of addressing the public outside the court’s marble walls. In 2003, his dissenting opinion in the gay rights case Lawrence v. Texas (https://supreme.justia.com/cases/federal/us/539/558/case.html) warned that the court’s declaration of constitutional protection for same-sex relationships would lead to protection for same-sex marriage. State after state heeded the warning and enacted same-sex marriage bans.

Ten years later, when he dissented from the court’s overturning of the Defense of Marriage Act in United States v. Windsor (https://supreme.justia.com/cases/federal/us/570/12-307/), which found that married same-sex couples were entitled to federal benefits, he warned that the decision made the constitutional right to same-sex marriage inevitable. “No one should be fooled; it is just a matter of listening and waiting for the other shoe,” he wrote.

Within a matter of months, federal district judges around the country invoked Justice Scalia’s dissent in striking down same-sex marriage bans. The much less polemical dissent in Windsor by Chief Justice Roberts, describing the decision as a narrow one based on principles of federalism, went uncited.

Had Justice Scalia overreached? Lost his touch? Or had times changed so that not even the most mild-mannered dissent could have stemmed the tide? Hard to say. Still, people listened, just as they did last June when the court ruled for same-sex marriage in Obergefell v. Hodges (http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf) and Justice Scalia wrote that before he would ever join such an opinion “I would hide my head in a bag.”

Since everyone who ever met Justice Scalia is telling Scalia stories, I’ll tell mine. The last conversation we had took place in the spring of 2013, on a Washington-bound Amtrak Acela. I noticed him sitting across the aisle from me, wearing headphones and working. He didn’t notice me, and I didn’t bother him. But when we stood to collect our things, we found ourselves face to face. “So, Linda,” he said, “what do you think of the new pope?”

This was such an unexpected conversation opener that I didn’t know what to say. Pope Francis had been chosen just a few days earlier. I was hardly qualified to discuss the first Jesuit pope with a Jesuit-trained Supreme Court justice. “I’m surprised they picked someone so old,” I finally managed.

“Well, he’s a transitional figure,” Justice Scalia said.

I was too nonplused to ask him what he meant: transition from what to what? (I can only imagine how the deeply traditional, Latin Mass-attending Justice Scalia came to regard Pope Francis as time went by.) Our train pulled into Union Station and the moment passed.

Antonin Scalia was, as everyone has noted, a unique figure on the Supreme court. Will he prove to have been a transitional one as well? Will originalism, having served its purpose, now leave the stage?

For the court and the country, this is an important moment in every possible respect. As Justice Scalia’s colleagues gather later this week for the ceremonial marking of his passing, they will be taking stock of a life. Some of them, perhaps, will also be taking stock of the court, where it has been and where it goes now.

http://mobile.nytimes.com/2016/02/18/opinion/resetting-the-post-scalia-supreme-court.html

[RandomGuy]

Intersting read.

[boutons_deux]

Scalia’s Judicial Activism: a Supremely Reactionary Voting Record (http://www.counterpunch.org/2016/02/18/scalias-judicial-activism-a-supremely-reactionary-voting-record/)

As the Obama administration begins its struggle with the Republican Senate over the appointment of the next justice to the Supreme Court, it’s worth reflecting on the teachable moment that is Antonin Scalia’s passing. The late Supreme Court Justice is being lionized in the press, and the myth of Scalia is now beginning to emerge. Much has been made of his alleged commitment to “judicial restraint,” implying that Americans should be mourning the passing of a great legal mind.

Recent comments in the media appear increasingly sycophantic. Noah Feldman of Bloomberg News writes that: “Under Scalia’s conception of law and the Constitution was a vision of the limited, restrained job of judges: not to make the law just, but to apply it impersonally.” TheChicago Tribune editorializes that “Scalia was a passionate and formidable advocate for a jurisprudence that stressed the importance of leaving most issues to elected leaders rather than judges.”

Republican Speaker of the House Paul Ryan argues that “Scalia did more to advance originalism and judicial restraint than anyone in our
time,” while Texas Governor Greg Abbott calls Scalia an “unwavering defender of the written Constitution…he was the solid rock who turned away so many attempts to depart from and distort the Constitution.”

Numerous Republicans and conservative pundits champion the concept of “judicial restraint.” Common definitions include the following:

*The belief that federal judges, since they’re unelected, shouldn’t “legislate from the bench,” and that they should not challenge the prerogatives of the elected branches – the executive and the legislature.

*The idea that judges are legal specialists and practitioners, not politicians, and that they shouldn’t make policy; rather they should use their power sparingly and only strike down laws or presidential acts when they are obviously unconstitutional.

*The notion that judges should objectively and mechanically interpret and apply “the law” as it is written, in an uncontroversial manner and without prejudice. One should never use personal ideology or policy preferences to influence one’s rulings.


The definitions above have little bearing on reality. Political scientists have long documented that values, experiences, beliefs, and ideology inevitably work their way into jurists’ legal decisions. This should be a rather obvious point, although conservative politicians and pundits have made careers out of claiming that justices can somehow divorce their rulings from the personal values that influence how they see reality and how they interpret the law.

Scalia’s doctrine of judicial restraint had little to do with his decisions as a Supreme Court justice.

Scalia’s reputation as a corporate crusader and right-wing culture warrior was well earned through numerous decisions that flew in the face of judicial restraint. A review of Scalia’s greatest hits puts his record as a reactionary activist into perspective.

Selecting the President

In the 2000 case of Bush v. Gore, Scalia demonstrated that he wasn’t beyond playing blatant partisan politics and manipulating the outcome of a presidential election. In that case, Scalia voted with the court majority to end the Florida vote recount, essentially handing all of Florida’s electoral delegates to George W. Bush. The court (by a 7-to-2 vote) justified the decision by claiming that the recount violated the 14th Amendment’s Equal Protection Clause (and individuals’ right to have their votes re-counted equally) because the state’s counties employed different standards for recounting votes, and that there was (allegedly) not enough time to establish a uniform vote count method prior to Bush’s ascension to the President’s office. A number of the court’s judges signaled support for sending the case back to the Florida Supreme Court to establish a uniform method for a recount across counties, although the court’s conservative majority voted against this option.

Of course, the court’s 14th Amendment claim, if universally applied across the United States, would have invalidated all vote recounting methods in the U.S., since there was no uniform standard applied across the 50 states. The Supreme Court knew this, which is why they limited the applicability of their ruling exclusively to the case of Bush v. Gore, exempting all other states from the decision and from the court’s 14th Amendment claim. The ruling played out along partisan lines, with the Supreme Court’s five conservatives voting to hand the election to Bush, and the court’s liberals voting to continue the recount. Bush v. Gore will be remembered as one of the most nakedly partisan, blatant power grabs by the Supreme Court in American history. It is a dark stain on Scalia’s record.

Campaign Finance Law

Few issues demonstrated Scalia and the conservative court majority’s contempt for judicial restraint than the now infamous case of Citizens United v. FEC (2010). In that case, Scalia voted with the court’s other conservatives (5-to-4) to strike down the section of the 2002 Bipartisan Campaign Reform Act (BCRA) which prohibited issue ad spending by corporations and other organizations in the 60-day run-up to general elections and the 30-day run-up to primary elections. This provision of the law was created in an effort to try to limit the growing role of money in election campaigns.

Scalia’s legal reasoning for rejecting the BCRA’s issue ad ban was that it violated the “right” of corporations (which the court looks at as legal persons) to freely communicate their positions under the First Amendment’s protections for freedom of speech and expression. The legal reasoning for the case was rejected by a large majority of Americans familiar with the ruling, as Pew Research Center polling from 2012 found that two-thirds of American voters familiar withCitizens United thought it would have a negative effect on elections.

The most common criticism of the ruling I hear from Americans today is as follows: if money is free speech, then this means that wealthy Americans benefit from a whole lot of free speech, while poor, working class, and middle class Americans who don’t have money for campaign ads benefit from no free speech at all. The Citizens Unitedcase is a strong example of Scalia and the conservative majority’s contempt for judicial restraint. What is more activist than striking down Congressional laws in pursuit of a narrow, reactionary interpretation of the First Amendment that favors corporate power over the wishes of the masses?

Health Care Reform

The case of National Federation of Independent Business v. Sebelius(2012) represented the Supreme Court’s judgment of “Obamacare” and whether it could be legally justified under the Constitution’s Commerce Clause and Taxation Clause. Scalia, along with four other judges, voted against justifying the mandate requiring individuals to buy insurance from private health insurance companies, which the Obama administration justified under the Commerce Clause. The logic invoked by the court majority was that the Obama administration was compelling individuals to buy a product, and threatening a fine if they did not – hence punishing a negative action (not buying insurance). This action could not be justified under the Commerce Clause, since the clause references regulating commerce, rather than creating commerce or punishing inaction (not engaging in commerce). Scalia voted along with three other judges to overturn the law, specifically by rejecting Obama’s claim that the government’s $695 fine (for not purchasing insurance) merely represented an example of the power to tax citizens, since a fine (they alleged) was not the same as a tax. Of course, the law was allowed to stand, since a majority of judges (5-to-4) voted that the fine fell under the government’s Constitutional taxation powers.

I’ve gone on record numerous times criticizing the Obama health care law as bad policy. I see it largely as a corporate boondoggle and at best as a band aid that is masking the larger problem of for-profit health care in the United States that is gouging Americans blind. My position against “Obama-care” notwithstanding, there is room to question Scalia’s actions in the Sebelius case. His effort to overrule the Affordable Care Act represents a blatant example of judicial activism, as judicial restraint would have necessitated a refusal to strike down Congressional law. Instead of exercising restraint, Scalia embraced his own conservative interpretation of the Commerce Clause and Taxation Clause.

Gay and Lesbian Rights

Arguably the most noxious of Scalia’s judicial decisions are the cases of Lawrence v Texas (2003) and Obergefell v Hodges (2015). InLawrence v Texas, the court’s majority (by a 6-to-3 vote) held that state anti-sodomy laws represented a violation of individuals’ right to equal protection and due process protections under the 14th Amendment, since such laws were being applied only to gay and lesbian individuals and not to heterosexuals. The due process clause guarantees that no state shall “deprive any person of life, liberty, or property, without due process of law.” In this specific case, the right to engage in consensual sex with someone of the same sex was classified by the Supreme Court as a fundamental part of individuals’ right to liberty. Similar legal reasoning was used in the case of Obergefell v Hodges, with the court’s majority invoking 14th Amendment due process and equal protection claims in striking down state laws prohibiting same-sex marriage.

Scalia’s role in these cases was one of the uninhibited culture warrior, voicing blatantly bigoted and homophobic stereotypes in order to justify denying equal rights to all regardless of sexual orientation. In the Lawrence case, much of Scalia’s justification for denying equal rights had little to nothing to do with legal reasoning at all, and was clearly driven by his hatred of gay and lesbian individuals. Scalia compared the legalization of same-sex intercourse to the legalization of “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.” He attacked the court’s majority for having “signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” Scalia attacked the court’s majority view as outside the U.S. mainstream, and railed against the “invention of a brand-new ‘constitutional right’” of gay and lesbian individuals not to be discriminated against based on their (consensual) sexual acts. His reasoning was empirically false, considering that Gallup polling from 2003 found that 60 percent of Americans supported the elimination of anti-sodomy laws. The elimination of anti-sodomy laws, then, was perfectly within the mainstream of American political values.

Scalia intensified his attacks on gay and lesbian individuals in theObergefell case. Scalia was clearly out of touch with majority public opinion in Obergefell, considering most Americans supported same-sex marriage by 2015. This didn’t defer the late justice. If the Supreme Court was to legalize same-sex marriage, he pontificated, what would stop the court from legalizing other deviant behavior? In Scalia’s own words, “what about pederasts?” “What about child abusers?” The “deserving minority” of child abusers, he sarcastically claimed, could also claim protections under the 14th Amendment’s Due Process and Equal Protection clauses in the wake of Obergefell. The attempt to associate homosexuality with child molestation and child abuse is an old con and a hateful tactic of the religious right, which has long been rejected for lack of empirical evidence by groups like the American Psychiatric Association and the American Academy of Child and Adolescent Psychiatry, and by any other human beings with an ounce of sanity.

Scalia, the Reactionary Activist

Scalia’s brand of judicial restraint was never more than an opportunistic, high-minded rhetorical defense of the American right’s reactionary political, economic, and social agenda. Scalia unashamedly voiced his support for judicial activism in cases that he felt would further the interests of the conservative-right, and used the language of “restraint” to suppress court efforts to rule in a progressive direction on major legal questions.

In reality, Scalia and other conservatives’ calls for restraint amounted to little more than a bitter complaint that “my side didn’t win” in cases when conservative legal positions failed to carry the day. There is little to celebrate in such opportunistic, cynical legal thinking.

This is not to say that the concept of judicial restraint is without meaning. Legal scholar Gerald Rosenberg argues convincingly in his book, The Hollow Hope (http://www.amazon.com/exec/obidos/ASIN/B005588Q76/counterpunchmaga) that the

federal courts have proven themselves largely unwilling throughout American history to challenge the political-economic status quo.

Putting faith in the courts to fight for progressive change often amounts to a “hollow hope,” in that members of the Supreme Court prefer to act in favor of progressive change only after the other branches (themselves being pressured by progressive social movements) have already begun to act.

Rosenberg’s findings speak to a larger point:

the courts have, in fact, exercised judicial restraint over the centuries, but typically in favor of the interests of powerful societal elites.

They have often failed to play a leading role in campaigns to promote equality between people, regardless of race, sex, and sexual orientation.

Scalia’s real legacy lies in promoting a variant of judicial restraint that refuses to challenge the neoliberal agenda of American political-economic elites or the cultural values of the reactionary right.

Moving forward, his tenure is likely to be looked at with hostility and derision by the public, with Scalia himself a relic of a bygone era.

http://www.counterpunch.org/2016/02/18/scalias-judicial-activism-a-supremely-reactionary-voting-record/

[FromWayDowntown]

Scalia’s brand of judicial restraint was never more than an opportunistic, high-minded rhetorical defense of the American right’s reactionary political, economic, and social agenda. Scalia unashamedly voiced his support for judicial activism in cases that he felt would further the interests of the conservative-right, and used the language of “restraint” to suppress court efforts to rule in a progressive direction on major legal questions.

In reality, Scalia and other conservatives’ calls for restraint amounted to little more than a bitter complaint that “my side didn’t win” in cases when conservative legal positions failed to carry the day. There is little to celebrate in such opportunistic, cynical legal thinking.

Without offering any particular support or disdain for this writer, these statements are things I've raised before in discussions of the role of the judiciary and the concept of judicial activism.

I think the notion that to most people an "activist" is someone who doesn't pick your side of the dispute is absolutely true. I don't think there's any particular, objective meaning to that term at this point. It's become something of a method of whining, with the benefit of having some degree of dignity or gravitas.