Supreme Court Justice Antonin Scalia cast himself as an “Originalist” and “strict constructionist” with the extraordinary capacity to divine the intent of The Founders as they wrote the Constitution.
He approached the Constitution as a Catholic would the Bible, and his ability to channel the Founders’ voices and thoughts as one would claim to commune directly with Jesus.
But this was a front for his activism in reshaping America and tipping the balance in favor of his political agenda.
Scalia is responsible for the worst decisions since Dred Scott, starting with Bush v Gore, in which he disregarded how the Constitution set out a presidential election in order to install George W. Bush as President knowing this would thereby set the Court’s direction, as well as the judiciary for 50 years.
His break with precedent and long-established law was demonstrated in Citizens United, McKutcheon, the Heller decision which for the first time elevated an individual’s right to possess a gun (where in “well regulated militia” is the unlimited right for an individual to possess a gun?); Voting Rights, Hobby Lobby.
In every area of women’s rights, civil rights, voting rights, worker rights, health care, environmental protection, he shaped decisions to achieve a political end and a social agenda.
And it would have been worse — especially for a woman’s right to make her own reproductive and health decisions and for same-sex marriage (which part of “equal protection” didn’t he get?) — were it not for an occasional swing vote which would deny him his decision, which he would condemn with vicious dissents.
He branded any decision that he disagreed with as violating this artificial “originalist” construction, and any decision that was “progressive” or “liberal” as “activist.”
But Scalia was the true activist, and ruthless in his willingness to overturn precedent and settled law to achieve his objective.
Scalia is routinely praised for his insistence that justices be true to the Founders’ intent, rather than make law. But that is an artful dodge by a skilled lawyer who can twist any bit of legalese to justify an argument, or simply claim the mantel. In fact, the Founders knew they were engaged in a “grand experiment,” in which the people (or at least a fractional segment of citizenry, excluding white men who did not own property, women, slaves and Indians) would be empowered to change their government in a defined way. The Founders knew they were fallible and they knew they already had to compromise core principles (slavery) in order to gain consensus because they were already deeply divided between wanting a strong central federal government (Hamilton), and a decentralized Republic (Jefferson). They knew the Constitution was not perfect, just as they were not perfect, omnipotent people. They may not have been able to foretell assault weapons, computers, or stem cells, but they knew that the Constitution needed to adapt to unimaginable change. That’s why they created an amendment process. They knew more than anyone – especially Marco Rubio (who stated in South Carolina, “ the Constitution is not a living and breathing document. It is to be interpreted as originally meant” — that the Constitution by necessity was a “living document” rather one set in stone, if a Republic would survive.
Originalist or Calculating Activist?
If Scalia were a true “originalist” and not an activist in pursuit of shaping America into the incarnation of a political agenda, he would start with whatever gets you closer to “We the People,” “equal protection,” “one person, one vote” instead of saying that the Constitution does not explicitly guarantee “one person, one vote,” as he did to justify Bush v Gore).
Instead, Scalia easily could advance the concept of a Unitary Executive when hearing a case against George W. Bush for overturning habeus corpus, the right to trial (innocent until proven guilty), indeed torture, when a Republican was in office, but then deny President Obama’s ability to implement an executive order on how undocumented immigrants would be handled. In Hobby Lobby, he established the rights of a corporation to exercise its religious conscience (imagine, a corporate conscience!) over a woman’s right not to be discriminated against in the workplace and to make her own health decisions. He clawed back the Citizens United case in order to issue an unprecedented ruling that corporations are people and cash is speech, unleashing the outsized power of wealth to mute the voice of ordinary people. The Founders would have turned over in their graves.
He overturned Congress’ carefully considered reauthorization of the Voting Rights Act pronouncing it somehow embodied “racial entitlement”. And in yet another case just this term challenging race as a factor in consideration for college admission (the Court had already overturned affirmative action, but said race could be a factor in section), he actually said that blacks would be better served in less challenging academic settings.
And just last week, the right wing activist Republican majority again broke all precedent in halting implementation of the EPA’s rule limiting global warming pollution from power plants (a plan in which states were free to come up with their own plans to comply with the standards, thereby threatening the international climate agreement as well as setting back the planet’s ability to mitigate the disastrous effects of climate change) even before the case was fully adjudicated by a lower court and come before the Supreme Court.
This is despite the fact the Supreme Court has already determined that the EPA is fully within its authority to regulate carbon pollution under the Clean Air Act.
The announcement of Scalia’s passing had not even faded on the wind when Senate Majority Leader Mitch McConnell said, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.”
But the American people have already spoken.
“Sen. McConnell seems to have forgotten that the American people made their voices heard in 2012 — when we re-elected Barack Obama. Nearly 67 million Americans agreed that this President is the person they trust to make decisions like these,” stated Amy K. Dacey, chief executive officer of the Democratic National Committee.
“Mitch McConnell and the Republican presidential candidates who are standing with him may not like it, but unfortunately for them, it’s how our system works. It’s right there in the Constitution. And anyone who believes the sitting President should not fill this vacancy to allow our highest court to carry out its duties is putting politics ahead of the rule of law. Plain and simple.
This political battle royal only brings into sharp focus why voters cannot be apathetic this election (as the Republican candidates emphasized during the South Carolina debate, mere hours after word of Scalia’s death).
What would Scalia, who claimed to stand for the “rule of law” and strictly following the Constitution, say to the Republicans throwing down a gauntlet in refusing to consider any candidate at all?
McConnell tried to hold up a so-called “Thurmond rule” (another roadblock to democracy along with the Hastert rule), which is supposed to cut off a Supreme Court nomination six months before the end of term. (Justice Anthony Kennedy was appointed in the last year of Reagan’s presidency.)
Indeed, a final year of a four-year term has nothing to do with it, because it has been the policy of the Republican-controlled Senate and House ever since they took over, and from the first day of Obama’s Presidency to stonewall, delay, obstruct.
It is why it took an unprecedented 150 days before Loretta Lynch was confirmed as Attorney General. And why they broke with precedent in refusing to even give Obama’s FY17 budget a hearing.
It is why Obama has had to issue executive orders on immigration, gun safety, overtime pay, minimum wage, parental leave – indeed all the things that the president is actually being sued for in other examples of unprecedented tactics by a ruthless, unscrupulous Republican party.
The Republicans would nullify the entire executive branch as long as a Democrat is in office.
Republicans view politics as nothing more than a football game. But even a football game isn’t stopped by the leading game 20 minutes before the end. And politics is not a game.
Real people, real lives are impacted every day by the decisions the Supreme Court makes. This Right Wing Majority Court has overstepped its authority to insure that laws passed by Congress comport with Constitutional protections.
“Leaving a seat on the Supreme Court vacant for an entire year is utterly unprecedented. In all of U.S. history, the longest its ever taken for the Senate to vote on a nominee is 125 days,” writes Eddie Kurtz of the Courage Campaign. “They are effectively trying to limit President Obama’s second term to just three years — while leaving the Supreme Court shorthanded for well over a year.”
And now, if the 4-4 split is maintained, and there is no majority, it means that decisions rendered by lower courts will stand.
This leaves decisions on critical cases are already pending before the Supreme Court up in the air, including: the latest attack on abortion rights in Texas; Obama’s Clean Power Plan to fight climate change; the president’s action to allow “Dreamer” undocumented immigrants to stay in our country; the right-wing attack on the right of teachers and other workers to form strong unions; an extremist proposal to roll back voting rights by ending the “one person, one vote” rule; and the Texas case that would further limit affirmative action in higher education.
Activists from every quarter – working families, women’s reproductive freedom, environmentalists and climate activists — need to really protest against the Republican Senators, especially those who are up for reelection (there are 10) and especially Charles Grassley (Republican from Iowa, chair of the Judiciary committee) who is up for reelection and could possibly be toppled in a wave election, whether that is Bernie Sanders bringing out the protest vote, or if progressives realize what is at stake, come out for Hillary Clinton if she is the nominee, instead of registering another protest vote/non-vote.
“This is a major cross roads in American history. The future depends on getting this appointment right,” says Charles Chamberlain, executive director of Democracy for America. “Along with other matters, such as overturning Citizens United, these cases remind us just how important it is that the next Supreme Court justice share America’s progressive values and rules the right way on these issues,” “We have an historic opportunity to have a progressive majority on the Supreme Court for the first time in more than 25 years.”
President Obama was so gracious in lauding Scalia (a real mensch), saying the justice who served 30 years “was a larger-than-life presence on the bench — a brilliant legal mind with an energetic style, incisive wit, and colorful opinions. He influenced a generation of judges, lawyers, and students, and profoundly shaped the legal landscape. He will no doubt be remembered as one of the most consequential judges and thinkers to serve on the Supreme Court. Justice Scalia dedicated his life to the cornerstone of our democracy: The rule of law.”
But Obama deftly added, “I plan to fulfill my constitutional responsibilities to nominate a successor in due time. There will be plenty of time for me to do so, and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote. These are responsibilities that I take seriously, as should everyone. They’re bigger than any one party. They are about our democracy. They’re about the institution to which Justice Scalia dedicated his professional life, and making sure it continues to function as the beacon of justice that our Founders envisioned.”
