Saturday, February 27, 2016

238.3 - Antonin "Skeletor" Scalia dies

Antonin "Skeletor" Scalia dies

Antonin "Skeletor" Scalia
Okay, so that happened. Supreme Court Justice Antonin Scalia, known unaffectionately around here as Judge Skeletor, died on February 13, apparently of natural causes. He was 79.

As much as I disliked and I'm tempted to say detested the man, know now that I am not going to celebrate his death. As John Dunne wrote, quoting,

No man is an island,
Entire of itself, ...
Any man's death diminishes me,
Because I am involved in mankind....

I will celebrate no one's death.

But then again, even though it is said one should not speak ill of the dead, like Mark Antony, I come to bury Scalia, not to praise him. The difference here being that I really mean it.

I have been mystified for some time as to why people described Scalia as having this brilliant mind. I found his rulings, those of them that I read - admittedly, I didn't read a great many but I did read some - I found his rulings and particularly his dissents, to be plodding and uninformative, written with a bludgeon when a rapier was called for, and uncreative even in the sarcasm and witticisms that supposedly marked his writing, with the former being nasty and sneering rather than incisive and the latter thudding and pedestrian rather than revealing.

Judge Skeletor
That he had an effect on American jurisprudence, that he affected the way the laws and the courts have shaped our present predicaments, is unquestionable. That his effect has in any way been positive is baloney.

His advocacy of "textualism," the argument that you should look to the actual words of a law rather than to, for example, legislative history to resolve questions of meaning is in itself inoffensive, but the extreme ends to which he put that principle, where what he claimed was the "plain meaning" of a given law's text - if it was really that plain, why is it the subject of a legal dispute - but that "plain meaning" that he saw had to stand even if it was in direct contradiction with legislative history or committee reports or other documents speaks less of a commitment to a principle and more to arrogance - where his understanding is of course the indisputably correct one - and to laziness, to being unwilling to put in the effort to grasp nuance.

Even worse was his fanatical embrace of "originalism" or "original intent," the idea that provisions of the Constitution must be understood and interpreted in the way they would have been understood at the time the document was adopted, 227 years and some months ago. That is, we must live by the social and moral precepts of over two centuries ago and any broadened or deepened understanding of human rights or justice developed in that time is irrelevant to the Constitution. He once declared the the idea of a "living" Constitution, one that allowed for changing interpretations and society changed and (hopefully) matured, was "dead, dead, dead."

So let's run down some of his greatest hits, to get a sense of into what dark spaces his rigidity of thought lead him and I'm not even including his vote to award the presidency to Dubya in 2000 or the Citizens United case.

For one thing, if he had had his way in a 2005 case, the US would have maintained its position as the only nation in the Western world to legally execute juveniles. Fortunately, he lost that one.

In 2009, in a stunningly amoral dissent in the case of a convicted murderer who was seeking a new trial on the basis newly-discovered evidence and the recanting of several witnesses, he wrote that "This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent." That is, even if we have learned you are innocent, hey, you had your trial so we're going to kill you anyway.

His fanaticism extended to religion. Back in 2004, the Court found that just because a government program subsidizes a secular activity, that does not mean it must also subsidize the comparable religious activity. Scalia claimed in dissent that this amounted to "discrimination against a religious minority" - in this case, the minority being Christians. More recently, he was part of the 5-4 majority in the notorious Hobby Lobby case, allowing at least some private employers who claim religious objections to deny birth control coverage in their employees' health plans, despite the requirements of the ACA.

On at least two separate occasions he declared in a speech that the First Amendment provides for freedom of religion but not freedom from religion, that the government can favor religion over non-religion - meaning, to put it differently, that if you are an atheist or an agnostic or a follower of a non-theistic philosophy or in any other way non-religious, he says you can be denied full participation in American life with the blessing of the Constitution.

Perhaps connected to that, his disdain for LGBTQ rights is almost legendary. In 2003, when SCOTUS struck down sodomy laws, he called it "surrendering to the homosexual agenda."

He compared laws against homosexuality to laws against murder, incest, child pornography, and bestiality.

When the Court struck down central parts the the so-called Defense of Marriage Act in 2013, his dissent charged that the majority had labeled DOMA's supporters "members of a wild-eyed lynch mob" and "enemies of the human race."

He claimed that Obergefell v. Hodges, the case the struck down bans on same-sex marriage, was a "threat to democracy."

In 2013, he was part of the majority that ripped the heart out of the Voting Rights Act, calling it a "perpetual racial entitlement."

He was a reliable vote on the court in moves to limit, curtail, or undermine affirmative action programs of any sort, capped by (and perhaps explained by) his bigoted assertion from the bench in December that affirmative action in college admissions was in fact hurting minority students by getting them into better schools "where they do not do well" and how if would be better if they went to "a less-advanced school, where they do well."

He was also a faithful friend of corporate rights and privileges, including such as the notorious Citizens United Decision and, earlier this month, his dissent in a case that blocked a corporate attempt to short-circuit class actions suits.

Sometimes, his opinions were just bizarre, as when he argued in a 2012 case that individual states were entitled to their own immigration laws, which if it means anything means at minimum that states can ban members of disfavored groups from living there and have border patrols to control entry.

To give you an idea what I thought of the man and his supposedly great legal mind, one example involving religion prompted me to call him "that beacon of buffoonery, that incubator of inanity, that epicenter of egregiousness."

In response to his comments about affirmative action, I said he had "once again proven himself an embarrassment to his position and an affront to reason."

And I described his dissent in Obergefell as, "like most of his opinions, quite Shakespearean - that is, 'a tale told by an idiot, full of sound and fury, signifying nothing.'"

This is not to say that I think he was invariably wrong, I did agree with him sometimes, it's just that he was like the joke about the broken clock.

So I'm sorry he is dead, I'm sorry for the pain and his family must be going through - but although I have to say I would much rather it have been through retirement, I will not for a moment pretend that I am anything other than delighted that he is no longer doing damage to our society from his perch on the Supreme Court.

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