Saturday, February 13, 2016

Justice Scalia Has Left The Building

"I have never killed a man, but I have read many obituaries with pleasure."  -- Clarence Darrow
In what may be the most positive political development in a very long time, there is a vacancy on the Supreme Court that can now be replaced by a Democratic president.  Antonin Scalia has left the building. 

The political implications are huuuuge!  What should be one of the most important considerations in electing the next president has now shot to the forefront.  The Republican Senate may very well take the unprecedented step of blocking a Supreme Court nominee for the remainder of Obama's term.  That would give the next president the opportunity to shape the Court for the next generation.  Electability is a more critical factor than ever.
And cases now on the Supreme Court docket, involving abortion, voting rights, affirmative action, immigration, among others are all of a sudden no longer looking like 5-4 losses. 

Replacing Scalia on the Court with a liberal justice will dramatically shift the balance of power and put the Court more in align with the views of a majority of the American people rather than the far right wing of the Republican Party.  Issues from overturning Citizens United  to finding the death penalty unconstitutional will be in play

It has long been a consensus in mainstream circles, if not necessarily in the legal community, that whether you agreed with him or not, Justice Scalia possessed a great legal mind.  But, in my view, he was a arrogant, partisan hack whose decisions were completely result-oriented, masked in a  flawed legal theory.  (With all due respect)

I had the distinct displeasure of seeing him up close and personal in two death penalty cases where his lack of humanity and need to bloviate were distasteful and infuriating.

One of Scalia's greatest hits, of course, is Bush v. Gore, one of the most shameful episodes in the history of the United States Supreme Court.  Here's what I wrote in 2012 about Scalia's then-recent remarks about the decision:

Bush v. Gore, which stopped the Florida recount and handed the presidency to George Bush was a severe blow to democratic rule.  It was a legally unsound, politically motivated decision.

Conservative justices, who invariably relied on principles of federalism to avoid redressing unjust actions by state governments, intervened in a state's voting process, relying on an indefensible interpretation of the Equal Protection Clause.  The opinion itself implicitly conceded its flawed legal reasoning by explicitly stating that it was “limited to the present circumstances” and could not be cited as precedent.  Justice Souter, appointed by the first President Bush, was so disturbed by the ruling that he considered resigning at that time. 

Bush v. Gore was plain and simple "crudely partisan," as Souter later described it.  Justice Breyer, in dissent, described the majority decision as a "self-inflicted wound -- a wound that may harm not just the Court, but the Nation.”  Prescient words.  The harm to the Court, as Justice Stevens dissented (in an opinion joined by Breyer and Ginsburg), was that it gave credence "to the most cynical appraisal of the work of judges" and undermined the country's "confidence in the judge as impartial guardian of the rule of law."  (This view has only been exacerbated by such cases as Citizens United, which also blatantly ignored established precedent to reach a nakedly partisan result). 

The reality is that by a narrow 5-4 margin, the Supreme Court interfered with a presidential election and gave us George W. Bush, the majority's preferred candidate.  That would be "the wound" that "harmed the Nation."

According to Justice Antonin Scalia, however, reality is altogether different.  Last week, Scalia delivered the Hugo L. Black Lecture on Freedom of Expression at Wesleyan University.  After the speech, Scalia was asked about Bush v. Gore.  His response:  “Get over it.”  He then told the audience that “it was a long time ago, people forget . . . It was a 7-2 decision. It wasn’t even close.”

Scalia believes what he believes, whether it is divining the intent of the Founding Fathers or rewriting the history of a controversial decision.  The fact is Bush v. Gore was not a decided by a vote of 7-to-2.  While seven of the nine justices agreed that Florida Supreme Court's decision, calling for a statewide recount, violated the Equal Protection Clause, four of the nine justices strenuously disagreed with the majority's remedy, to stop the recount.  As Ian Millhiser summarized it:

Although it is true that the four dissenters divided on how the Florida recount should proceed — two believed there should be a statewide recount of all Florida voters while two others believed a narrower recount would be acceptable — not one of the Court’s four moderates agreed with Scalia that the winner of the 2000 presidential election should effectively be chosen by five most conservative members of the Supreme Court of the United States.
It is understandable why Justice Scalia would want to downplay the radical decisions he and his conservative colleagues have authored which put a lie to the conventional wisdom that the liberal justices on the Court are the ones who substitute their personal and political views for those of the democratically elected branches of government.  

It is also understandable why Scalia is still getting questions about Bush v. Gore twelve years after the opinion's issuance.  It is without exaggeration one of the Supreme Court's worst decisions.  (Scalia, with Justices Kennedy and Thomas, have the distinction of also being in the majority of another of high court's low points, Citizens United.)

Sorry, Nino, we are not going to "get over it."


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