Scalia

see bush v gore

see citizens united 5-4

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format brokesee scalia law school bak(looks complete)

html armbands

see originalist

html endit1 bad code sorta fixed

2x? politico obit?

antonin-scalia-how-he-changed-america-213631

press on the scent?

https://www.alternet.org/viral-video-scalia-gifts-thomas/

7 22

https://en.wikipedia.org/wiki/Antonin_Scalia

In 1981, he became the first faculty adviser for the University of Chicago's chapter of the newly founded Federalist Society.^[32]

In 1986, Chief Justice Warren Burger informed the White House of his intent to retire. Reagan first decided to nominate Associate Justice William Rehnquist to become Chief Justice. That choice meant that Reagan would also have to choose a nominee to fill Rehnquist's seat as associate justice.^[38] Attorney General Edwin Meese, who advised Reagan on the choice, seriously considered only Scalia and Robert Bork, a fellow judge on the DC Circuit.^[39] Feeling that this might well be Reagan's last opportunity to pick a Supreme Court justice, the president and his advisers chose Scalia over Bork. Many factors influenced the decision. Reagan wanted to appoint the first Italian-American justice.^[40] In addition, Scalia was ten years younger and would likely serve longer on the Court.^[38]Scalia also had the advantage of not having Bork's "paper trail";^[41] the elder judge had written controversial articles about individual rights.^[42] Scalia was called to the White House and accepted Reagan's nomination.^[38]

...In 1982, President Reagan appointed Bork to the Court of Appeals for the District of Columbia Circuit.In 1987, Reagan nominated Bork to the Supreme Court after Justice**Lewis Powell**announced his retirement.His nomination precipitated unprecedented media attention and efforts by interest groups to mobilize opposition to his confirmation,^[3] primarily due to his criticisms of the Warren and Burger courts' interpretations of the Constitution, especially of the First Amendment and the constitutional right to privacy, and his role in the Saturday Night Massacre.

no lnx

https://yyy.theguardian.com/world**/2000/dec/13/**uselections2000.usa

florida's legislature last night began the process of trying to force the presidential selection in favour of the Republicans by approving a list of 25 electors pledged to select George W Bush.

The resolution was designed to hand all the state's votes in the electoral college to the Texas governor and assure him of victory whether or not a recount was approved by the US Supreme Court. It was fiercely opposed by Democrats who accused the Bush camp of trying to hijack the election and creating a dangerous constitutional precedent.

The vote took place in the lower house and the resolution will pass to the state senate - with an inbuilt Republican majority of 25-15 - today. It is not clear whether the senate will wait for a US supreme court verdict on whether Florida recounts can continue before it ratifies the pro-Bush list.

if the court finds in favour of Mr Gore but the legislature goes for Mr Bush, then the US could find itself in the midst of a constitutional crisis.

Yesterday it was revealed that the wife of one of the nine US supreme court justices whose decision could hand the White House to Mr Bush is helping to recruit political staff to a Bush administration.

Ginni Thomas, whose husband Clarence Thomas is one of the conservative group of judges that has supported Mr Bush in two actions in the past month, is working at a prominent conservative think-tank in Washington where she is coordinating rightwing recruitment for the Republican leader.

Mrs Thomas works for the Heritage Foundation and is actively approaching Republicans to come and work for Mr Bush if he becomes president. Earlier this month, she sent an email to Republican political staff members on Capitol Hill inviting them to submit their CVs "for transition purposes".

Justice Thomas has played a low-key role in the Bush v Gore case in which the supreme court heard oral arguments in Washington on Monday.

Alone among the nine justices, Justice Thomas did not ask a single question on Monday. But Judge Gilbert Merritt, a federal judge in Tennessee with personal ties to the Gore family, said in an interview yesterday that Justice Thomas faced a conflict of interest due to his wife's involvement and should stand down from the case.

If he were to step down, the court could be split 4-4 on the Bush v Gore case. In the event of a tie, the original ruling by the Florida supreme court allowing counts of Florida's "undervotes" would stand.

"The spouse has obviously got a substantial interest that could be affected by the outcome," Judge Merritt said. "You should disqualify yourself. I think he'd be subject to some kind of investigation in the Senate."

Judge Merritt cited section 455 of Title 28 of the United States Code in support of his call. The provision requires court officers to excuse themselves from a case if their spouse has "an interest that could be substantially affected by the outcome of the proceeding".

"There is no conflict here," Mrs Thomas told the New York Times yesterday. She said she rarely discusses court matters with her husband.

Kathy Arberg, a spokeswoman for the supreme court, said she had no comment on the claims. She also refused to comment on a separate revelation that Eugene Scalia, the son of a second conservative member of the court, Justice Antonin Scalia, is a law partner of Ted Olson, who acted for Mr Bush in the two cases he brought to the court in the past two weeks.

As the Thomas row flared yesterday, America had no option but to submit itself to a nerve-wracking national ordeal by tension.

But the country could be waiting for some time for a ruling. Lawyers pointed out that the supreme court's record fastest time for handing down a judgment following oral argument is three days after the hearing.

The two men at the centre of the storm continued to watch and wait along with everyone else. Mr Gore, whose mood was described by his aides as "determined and resolute", spent another day at his official residence in Washington.

Meanwhile, Mr Bush planned another business-as-usual day in Austin, saying that after talking to his lawyers he was "cautiously optimistic" about the outcome of the court's decision.

Today, perhaps the most controversial of these progressive amendments is the Seventeenth. Scholars have called for its repeal,56 as have political actors,57 most notably current Supreme Court Justice Antonin Scalia, who, when asked what he would change about the United States Constitution answered that ‘there’s very little that I would change’ although the Seventeenth Amendment is one of the few items he would change if he could, as he explained in a public forum:[wonder where, Koch?]

I would change [the Constitution] back to what they wrote, in some respects. The Seventeenth Amendment has changed things enormously. … We changed that in a burst of progressivism in 1913, andyou can trace the decline of so-called states’ rights [jim crow segregation? CPP?] throughout the rest of the 20th century. So, don’t mess with the Constitution.58

Justice Scalia’s criticism of the Seventeenth Amendment is anchored in federalism. The critique has its strongest voice in Ralph Rossum, who had earlier suggested that the Amendment effectively repealed federalism by removing an important state check on the national government. Rossum argued that federalism, at least as it was understood by the authors of the Constitution, ‘effectively died as a result of the social and political forces that resulted in the adoption and ratification of the Seventeenth Amendment’.59 In the next Part, I focus not on this aspect of the Amendment but rather on a narrower inquiry into its corruption-fighting origins. I will then explore the bases for the calls today to repeal the Seventeenth Amendment.

https://www.alternet.org/2021/08/antonin-scalia/

During his eight years as president, Ronald Reagan appointed three justices to the U.S. Supreme Court: Sandra Day O'Connor in 1981, libertarian Anthony Kennedy in 1987 and far-right social conservative Antonin Scalia in 1986. Scalia was by far the most extreme of the three, and law professor Eric Segall examines the late jurist's influence in a scathing article published this week by the Dorf on Law blog.

Segall doesn't mince words in his article. The law professor, who teaches at Georgia State University, slams Scalia (who died in 2016) as an extremist and a reactionary who was hostile to "women, people of color, LGBTQ folks, and non-Christians." What he finds so disturbing, though, is that many public figures continue to honor Scalia and venerate him as an upstanding example of a justice.

"Justice Scalia's opinions and heated rhetoric in civil rights cases should disturb people of even moderate sensibilities," Segall explains. "It must be remembered, of course, that Supreme Court justices should be judged according to the values of the times in which they lived. There are numerous Supreme Court Justices, maybe most justices prior to 1954, who we still honor and who undoubtedly held racist, sexist, and anti-LGBTQ views. But Justice Scalia made all of the statements…. in the last 35 years."

Segall goes on to cite specific examples.

"In 1996," the law professor notes, "he was the only dissenter in a case requiring the Virginia Military Institute, an elite state-funded military college, to accept women after it refused to do so for over a century. Scalia argued that courts should defer to all but the most irrational of laws that discriminate against women. Even Chief Justice William Rehnquist, an opponent of civil rights progress for decades, disagreed with Scalia in the VMI case."

Segall notes that Scalia "voted to strike down every affirmative action law he ever faced," and his "dissents and rhetoric about gays and lesbians bordered on the medieval." One of those dissents was in 2003's Lawrence v. Texas, a landmark ruling that struck down a sodomy law in the Lone Star State as unconstitutional.

"In another case," Segall observes, "Scalia compared homosexual conduct to murder and bestiality.When he was later asked about these statements by a gay Princeton student, he responded, 'If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things? I don't apologize for the things I raise.'"

And despite the fact that Scalia is held up as a principled advocate of "originalist" interpretation of the Constitution, Segall contends that his methodology was highly selective. Scalia only appealed to originalist ideas when they suited his purpose, and he was often happy to overlook historical arguments about what the framers thought when he wanted to achieve an ideological objective, according to Segall.

In light of all this, Segall is highly critical of law schools that have decided to honor Scalia.

"The Republican Party still views Scalia as their hero, but that is what we would expect from a political party either hostile to or indifferent towards the issues facing people of color, women, religious minorities, and the LGBTQ community," Segall writes. "But law schools and great universities should know better…. The myth that Antonin Scalia was a principled, great jurist is one of the most dangerous misconceptions in American politics. He thought nothing of disparaging people unlike him as well as insulting even his fellow justices. Far from being a role model for our law students, he should be an example of how judges should not act."

FROM YOUR SITE ARTICLES

Why Heller is Such Bad History

by Noah Shusterman

Antonin Scalia's opinion in District of Columbia v. Heller ignored the actual history of the early American militia in order to invent an individual right to gun ownership.

pro corp like brett? tort? class action?

https://www.scotusblog.com/2017/03/closer-look-judge-neil-gorsuch-class-actions/

A closer look at Judge Neil Gorsuch and class actions

When Justice Antonin Scalia died on February 13, 2016, one of the petitions for review awaiting the Supreme Court’s consideration was an appeal by Dow Chemical Co., which had asked the court to review the billion-dollar judgment against the company in a price-fixing case. But less than two weeks later, Dow announced that it was settling the case for $835 million. The company maintained that it “was not part of any conspiracy and the judgment was fundamentally flawed as a matter of class action law.” But, Dow explained, that the settlement was nonetheless “the right decision for the company and its shareholders” in light of uncertainty stemming from “recent events within the Supreme Court and increased likelihood for unfavorable outcomes for business involved in class action suits.”

Dow pointed to two important class-action decisions, both authored by Scalia and decided by a vote of 5-4, on which it had relied. In *Wal-Mart v. Dukes*, the court struck down a lower-court ruling that approved the certification of a class of roughly 1.5 million Wal-Mart female employees, who had argued that the leeway over pay and promotions that the store gives to its local supervisors discriminates against women. The court ruled that the women lacked the kind of common legal claim that would allow them to bring a lawsuit collectively, because they were suing “about literally millions of employment decisions at once.” And in *Comcast v. Behrend*, the justices held that the lower courts were wrong to certify a class of cable-television subscribers in an antitrust lawsuit against the cable company because the subscribers could not show that their damages could be measured on a classwide basis. Although Dow emphasized that, in its view, the judgment against it violated both of those decisions, it opted to settle the case rather than take its chances with a Scalia-less court.

Covering the Wal-Mart decision for this blog, Lyle Denniston described Scalia as the court’s “most dedicated skeptic about the class-action approach to litigation.” Whether Gorsuch, if confirmed, would follow in Scalia’s footsteps remains to be seen. During his decade on the bench, Gorsuch has participated in relatively few class action cases. In the cases involving class action issues in which he has participated, he has generally, but not always, ruled for the defense. Notably, both in cases in which he has ruled for the defense and those in which he has ruled for the plaintiffs, Gorsuch has emphasized the need for courts to stay in their lane, so to speak – that is, not to exceed their authority, particularly when it comes to decisions that are in his view best left to Congress.

Gorsuch adhered to this principle just a few months ago in ruling for the defense in *Hammond v. Stamps.com*, a case in which the on-demand postage company had wanted to remove a proposed class action against it, in which the plaintiffs alleged that the company’s monthly subscription costs were misleading, from a New Mexico state court to federal court. The district court ruled that the company could not remove the case because the Class Action Fairness Act’s “amount in controversy” requirement – more than $5 million – had not been met: The company could not show how many of its customers who cancelled their accounts had actually been misled, rather than cancelling for other reasons.

In an opinion by Gorsuch, the U.S. Court of Appeals for the 10th Circuit reversed, emphasizing that the district court’s conclusion that the “amount in controversy” requirement had not been met “rests on a legal error about the meaning of a key statutory term” – “in controversy.” In other contexts, the court explained, the phrase “has never required a party seeking to invoke federal jurisdiction to show that damages ‘aregreater’ or will likely prove greater ‘than the requisite amount’ specified by statute.” Instead, it has “required a party seeking federal jurisdiction to show only and much more modestly that ‘a fact finder might legally conclude’ that the damages exceed the statutory amount.” With no reason to believe that Congress intended the term to have another meaning in the CAFA, Gorsuch concluded, “[o]ur job is to abide Congress’s policy directions, not replace them with others of our own hand.”

Gorsuch thus agreed with the district court “that it is unlikely all 312,000 persons who cancelled service” will actually be entitled to damages, and he acknowledged that the district court had articulated “the correct legal test for jurisdiction (focusing on what’s legally possible, not what’s likely).” But the district court failed to actually apply the correct test to the facts of the case, instead “mistakenly focusing not on the legally possible but the factually probable. And that is an error of law we are not free to disregard.”

In *McClendon v. City of Albuquerque*, Gorsuch once again relied on the idea of the court’s limited authority, but this time to rule in favor of the plaintiffs in what he described as a “long-running” class action challenging the conditions in city’s jails. The question before the court was whether an order withdrawing approval of a class action settlement was a “final decision” that would allow the defendants – city and prison officials – to appeal....

rww 820

Eastman’s support for the Supreme Court’s infamous 1905 Lochner decision—which ushered in an era in which the court rejected economic and labor regulations—puts him in opposition to the late Antonin Scalia, who opposed the Lochner ruling.

Eastman has also taken a fringe position—one taken by Supreme Court Justice Clarence Thomas, for whom Eastman clerked—that the First Amendment’s ban on the establishment of religion does not apply to the states, and has argued that a state taxing people to support an official church, as some states did early in the nation’s history, was not all that coercive.

Harris and Eastman do have something in common. Both were candidates in the 2010 election for attorney general in California. Harris won, while Eastman was defeated in the Republican primary.

https://www.alternet.org/2020/04/conservative-supreme-court-justices-tortured-reasoning-in-the-disastrous-wisconsin-case-is-a-thin-excuse-for-their-true-purpose/

https://www.alternet.org/2020/04/the-supreme-court-is-poised-to-extend-gun-rights-at-the-worst-possible-time/

no lnx

The Supreme Court is poised to extend gun rights at the worst possible time

Supreme Court of the United States

Written by Bill Blum / Independent Media Institute April 8, 2020

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” —Second Amendment to the United States Constitution

As the deadly COVID-19 contagion sweeps across the country, gun sales are surging, spurred in many regions by panic buying and purchases by first-time firearm owners. Fearful and insecure Americans are taking advantage of weak and ineffective gun-control laws and stocking up, as President Trump might say, “like never before.”

Meanwhile, the Supreme Court is poised to issue its first major Second Amendment opinion in more than a decade in a case that originated, fittingly, in New York City, now the epicenter of the COVID-19 outbreak in the United States. The case—New York State Rifle & Pistol Association Inc. v. City of New York—has the potential to vastly extend the rights of gun owners, and not just in New York, but throughout the entire nation.

At issue is a New York City “rule” (the term the city uses for its local ordinances) that was adopted in 2001 to prohibit residents from transporting licensed handguns beyond municipal limits. The rule was challenged in a federal lawsuit filed in 2013 by the NRA’s New York affiliate and three individuals. A district court judge ruled in the city’s favor in 2015, as did the Second Circuit Court of Appeals in 2018. The Supreme Court, however, agreed to review the case at the NRA’s request in January 2019, and heard oral arguments in December.

The plaintiffs contend that the city’s handgun transportation ban should be declared unconstitutional because it conflicts with the Supreme Court’s landmark 2008 decision on the Second Amendment, District of Columbia v. Heller.

In Heller, the Supreme Court struck down a ban on handgun possession in the nation’s capital, ruling for the first time that the Second Amendment protects an individual right to gun ownership. Deeply controversial and hotly contested, Heller split the Supreme Court along strict ideological lines, and was resolved on the basis of a 5-4 vote of the justices. The late Justice Antonin Scalia’s majority opinion stood the prior judicial consensus on the Second Amendment on its head, rejecting the great weight of prior scholarship and earlier court opinions, including the Supreme Court’s 1939 decision in United States v. Miller, that had construed the amendment as protecting gun ownership only in connection with service in long-antiquated state militias.

Scalia’s opinion was met by a blistering dissent written by Justice John Paul Stevens, who retired from the bench in 2010 and passed away last year. Drawing on a wide array of historical sources, Stevens chided Scalia for ignoring the actual debates that took place during the founding era on the ratification of the Constitution and the drafting of the Second Amendment. Those debates, in Stevens’ view, demonstrated the amendment’s purpose was not to safeguard individual gun rights, but to guarantee the survival of the militias as a “collective right” of the citizenry as an alternative to the creation of a large federal standing army.

Stevens lost the battle of persuasion in Heller, and in 2010, in another 5-4 decision that also featured a Stevens dissent—McDonald v. Chicago—the Supreme Court extended Heller, holding that the individual right to keep and bear arms was incorporated by the 14th Amendment’s due process clause and hence was applicable to the states and local governments. The Second Amendment, as interpreted by Scalia, thus became the law of the land.

Although Scalia and Stevens are no longer with us, the ideological divisions they represented remain on the Supreme Court today. Indeed, when it comes to gun rights, the current court is even more conservative than it was in 2008. Justices Neil Gorsuch and Brett Kavanaugh, both appointed by Trump, are outspoken proponents of Scalia’s vision of the Second Amendment. And the tribunal’s remaining conservatives—Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito—participated in Heller and joined Scalia’s majority opinion.

Still, Heller by no means precluded all measures of gun control. As the Second Circuit noted in its evaluation of the New York handgun transportation ban that is now before the court, Heller was technically limited to possession of guns in the home, and established no clear limits on legislation aimed at regulating gun rights outside of the home.

“Like most rights,” Scalia wrote in Heller, “the right secured by the Second Amendment is not unlimited… [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

And in an enigmatic footnote to the above paragraph, Scalia added: “We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.”

Adhering to Scalia’s reasoning, in the years following Heller, lower courts have upheld a broad range of state and local gun-control regulations, a dynamic that has prompted the NRA and other gun-lobby groups to urge the Supreme Court to take up another Second Amendment appeal to reaffirm the amendment’s importance and place stricter limits on gun control. They may have found the perfect test case in the New York transportation ban. Like Heller, the New York ban concerns an outright prohibition, which will be hard, if not impossible, to justify before the court’s conservative majority.

Realizing it would likely lose the case, New York City amended its transportation rule in June to permit residents to take their handguns to second homes, businesses or shooting ranges outside city limits. And in July, the city filed a formal motion with the Supreme Court, requesting that the case be dismissed as moot. The court denied the motion in October, setting the stage for another Second Amendment showdown.

In December’s oral arguments, the city again asked the court to moot the case. The city made no attempt to defend the transportation ban.

Unfortunately, given the city’s capitulation and the Supreme Court’s right-wing orientation, the only real remaining question is the scope of the NRA’s inevitable victory. Even if the court reconsiders the city’s request and enters a dismissal order, the NRA will walk away with a significant win, having forced the city to rescind one of the most stringent gun-control laws in the country. On the other hand, a decision on the merits on constitutional grounds in the NRA’s favor would reward the organization with an even bigger triumph, endangering gun-control laws everywhere.

A nation awash in firearms in the grip of the COVID-19 pandemic awaits the court’s decision, which is expected by the end of June.

Bill Blum is a retired judge and a lawyer in Los Angeles. He is a lecturer at the University of Southern California Annenberg School for Communication. He writes regularly on law and politics and is the author of three widely acclaimed legal thrillers: Prejudicial Error, The Last Appeal, and The Face of Justice.

This article was produced by the Independent Media Institute.

https://www.alternet.org/2019/10/republicans-fantasy-constitution-trumps-attack-on-the-constitution-is-nothing-new-for-the-right-which-has-long-tried-to-write-its-own-version/

no lnx

Republicans’ fantasy Constitution: Trump’s attack on the Constitution is nothing new for the right — which has long tried to write its own version

Written by Paul Rosenberg / Salon October 28, 2019

Donald Trump’s recent criticism of the “phony emoluments clause,” used in defense of his since-abandoned G7 scam, was striking for its bluntness. But it’s part of a long history of conservatives flagrantly ignoring the actual Constitution and substituting an imaginary version in its place. At Vox, Ian Millhiser thoroughly debunked the notion that Trump wasn’t violating the Constitution by seeking to hold a summit meeting at his own hotel, including reference to work by Georgetown’s John Mikhail, whose examination of 40 different dictionaries made mincemeat of any “public meaning” argument to try to defend Trump.

Of course Trump doesn’t care about such arguments, and doesn’t rely on typical conservative legal arguments either. But he does rely on the underlying conservative impulse and assumption that the Constitution means whatever he wants it to mean, and that anyone who disagrees with him is subversive.

This view can be found in the so-called “constitutional sheriff’s” movement, which believes that county sheriffs get to pick and chose which laws to enforce and can keep federal law enforcement agents out of their counties. Tellingly, the word “sheriff” — like the word “God” — doesn’t even appear in the Constitution. Trump’s favorite convict sheriff, Joe Arpaio of Arizona, is a member of this movement. The far-right “Oathkeepers” movement has a similar fantasy-based view of the special constitutional status of anyone who’s sworn an oath to serve the government — and who then decides they’ve got a secret identity as a Supreme Court justice.

But don’t be fooled into thinking this is just a fringe conservative view. Dangerous and troubling as these views and that organization may be, it’s the conservative constitutional fantasies from the actual Supreme Court that have done far more damage to our democracy. Take, for example, the Dred Scott decision of 1857, written by Chief Justice Roger Taney, which held that black people had no constitutional rights because when it was adopted, they were regarded as “so far inferior that they had no rights which the white man was bound to respect.” What’s more, Taney claimed, “This opinion was at that time fixed and universal in the civilized portion of the white race.”

That was a lie, as I explained here, based on a fantasy past. In the real past, slavery was abolished in the Vermont Republic in 1777, well before the Constitution was drafted, and Quock Walker sued for and won his freedom under the Massachusetts Constitution in 1781 — again, before the Constitution was drafted.

Walker’s case deserves closer inspection to show specifically how wrong Taney was. Walker had been promised his freedom, but his master died before the promised date, and his widow married a man who not only refused to free Walker, but beat him as well. Walker won not one, but two civil jury trials, both of which affirmed his freedom and awarded monetary damages, after which the man who had abused him was convicted in criminal trial.

In his charge to the jury, Chief Justice William Cushing stated that, “slavery is … as effectively abolished as it can be by the granting of rights and privileges wholly incompatible and repugnant to its existence.” That unambiguous recognition of “the granting of rights and privileges” directly contradict Taney’s false premise in Dred Scott. The “fixed and universal” opinion he wrote about was a racist fantasy.

There was also a future fantasy involved in the Dred Scott decision — the fantasy that the decision would put an end to abolitionism,, and secure the institution of slavery once and for all. Instead, it only fueled the dynamic which eventually brought the Civil War, which was initiated by the South, based on yet another fantasy — the one about absolute states’ rights (except, of course, when it came to forcing Northern states to return escaped slaves.)

The fantasy of corporate personhood

After that terrible struggle, we passed the Civil War amendments to firmly establish the full citizenship rights of black Americans, which in turn would become the subject of multiple conservative fantasies, primarily involving the 14th Amendment. First was the fantasy — still haunting us today — that the 14th Amendment established “corporate personhood” and was actually intended to protect corporations as much as freed slaves and their descendants. This fantasy, too, came to us from the Supreme Court, though in a remarkably muddled way, asUCLA law professor Adam Winkler describes here.

In Santa Clara County v. Southern Pacific Railroad Company, the court reporter (a former railroad president) inserted a headnote saying that justices agreed that corporations were people under the meaning of the 14th Amendment, even though the decision itself said nothing at all on the subject. To this day, that case is mistakenly cited as precedent establishing corporate personhood, despite its silence. One of the justices hearing the case, Stephen J. Field, got the ball rolling, as Winkler explains:

A few years later, in an opinion in an unrelated case, Field wrote that “corporations are persons within the meaning” of the Fourteenth Amendment. “It was so held in Santa Clara County v. Southern Pacific Railroad,” explained Field, who knew very well that the Court had done no such thing.

That’s only one facet of how muddled the story is, as Winkler explains. The idea was first advanced in 1882 by Roscoe Conkling, a lawyer for Southern Pacific who was the last living member of the drafting committee responsible for writing the 14th Amendment. Conkling told the Court that the drafters had altered the wording, replacing “citizens” with “persons” specifically to cover corporations as well. There’s no other evidence supporting this claim, and substantial reason to doubt it. An unpublished journal of the committee’s deliberations that Conklin offered in support was later found to completely contradict his claim: The language had never been changed. “So far as anyone can tell, the rights of corporations were not raised in the public debates over the ratification of the Fourteenth Amendment or in any of the states’ ratifying conventions,” Winkler notes, nor had anyone else on the committee ever made such a claim.

Even at the time, Conkling’s account was suspect, according to Winkler. He made the argument in a case that languished for three years before Southern Pacific suddenly settled it, after which the railroad brought a nearly identical case to the Supreme Court, with the same legal team — except for Conklin. “Tellingly, Southern Pacific’s lawyers omitted any mention of Conkling’s drafting history or his journal,” Winkler notes. “Had those lawyers believed Conkling, it would have been malpractice to leave out his story.”

So everything else was premised on Conklin’s lie, which even his own colleagues didn’t believe. But there were so many other bad actors involved, it was like a Trump Cabinet meeting. In fact, Field sounded just like one of them, as Winkler describes:

Taxing the property of railroads differently, he said, was like allowing deductions for property “owned by white men or by old men, and not deducted if owned by black men or young men.”

In short, this was a collective fraud perpetrated by a whole collective of scoundrels, creating a fantasy version of the 14th Amendment that’s become deeply and profoundly embedded in American law. It was famously used, Winkler notes, to strike down numerous economic regulations, including federal child labor laws, zoning laws, and wage-and-hour laws,” at the same time that Plessy v. Ferguson (the next case on our list) refused to apply the 14th Amendment to protect the rights of African Americans:

Between 1868, when the amendment was ratified, and 1912, the Supreme Court would rule on 28 cases involving the rights of African Americans and an astonishing 312 cases on the rights of corporations.

More white supremacist fantasies

As we’ll see below, another strange wrinkle emerged in the modern era: for the Supreme Court’s hardcore conservatives, the 14th Amendment’s Equal Protection clause exists almost solely to strike down affirmative action. But first, we need to turn to Plessy v. Ferguson, in which the Court ruled that segregated facilities (supposedly “separate but equal”) did not deprive blacks of equal protection under law. It’s a much more ornate and convoluted lie than the one in Dred Scott, as I explained here, but to boil things down into basic fantasies, we need consider only three. First was the fantasy that the problem was all in black people’s heads:

We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

Second came the exact opposite fantasy, that black inferiority was an immutable fact that human laws could do nothing to alter:

Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation.

Third was the fantasy that either nothing needed to be done, or that nothing could be done:

If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.

Of course, this last was pure sophistry. The civil and political rights were obviously not equal, which was why the case had been brought in the first place. And that inequality perpetuated social inequality — specifically via segregation — as indeed was the whole point. It took decades of racist terror to get to the point where such an absurd concoction of fantasies could be propounded with such seriousness. The court pretended that black civil and political rights would still be protected, even after three decades of white racist violence proved otherwise, and that they could be neatly severed from “social rights” such as riding in an integrated railroad car — that being the issue at hand in Plessy.

The fantastical nature of the Plessy decision is thrown into sharp contrast by the bracing realism of John Marshall Harlan’s dissent. “The arbitrary separation of citizens on the basis of race while they are on a public highway is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution,” Harlan wrote. “It cannot be justified upon any legal grounds.” The phrase “badge of servitude” comes directly from the 13th Amendment, underscoring the broader context that gave meaning to the 14th Amendment’s Equal Protection Clause.

Next, fast forward a century to Bush v. Gore, the case that settled the 2000 presidential election. In that instance, conservative justices who had never applied the Equal Protection Clause to defend black voting rights suddenly discovered its overwhelming importance in protecting the rights of ballots to be counted equally — by paradoxically ensuring that no ballots were counted at all! There was never any thought of who the voters casting the ballots might be, much less whether they could possibly constitute a class, as Equal Protection jurisdiction normally requires. It was not just a fantasy, but a farce.

Rather than dig into the details of the case, I’ll merely draw on a big-picture observation made by Geoffrey R. Stone, an editor of the Supreme Court Review, whom I quoted from here in July. Stone noted that the three hardcore conservatives on the court at that time — William Rehnquist, Antonin Scalia and Clarence Thomas—had cast 65 votes in non-unanimous decisions interpreting the Equal Protection Clause in the previous decade, 19 of which involved affirmative action. Collectively, they’d cast exactly two votes finding Equal Protection Clause violations in those cases — one less vote in an entire decade than they cast in the Bush v. Gore decision. Summing up, Stone wrote:

What does this tell us? It tells us that Justices Rehnquist, Scalia and Thomas have a rather distinctive view of the United States Constitution. Apparently, the Equal Protection Clause, which was enacted after the Civil War primarily to protect the rights of newly freed slaves, is to be used for two and only two purposes — to invalidate affirmative action and to invalidate the recount process in the 2000 presidential election.

Put simply, the Equal Protection Clause those justices recognized does not exist. It was a bad-faith fantasy of their own invention.

Fantasies of guns and God

Race is clearly a major driver of conservative constitutional fantasies. But it’s not the only one, as shown by the Court’s Heller decision, the first ever recognize an individual right to gun ownership in the Second Amendment — a position that former Chief Justice Warren Burger (a Republican appointee) once called “a fraud on the American public.” The decision by Antonin Scalia was so roundly criticized that Scalia co-authored a book in its defense, “Reading Law: The Interpretation of Legal Texts,” which was ripped to shreds by then-appeals court judge Richard Posner, in a devastating review titled “The Incoherence of Antonin Scalia.” To be clear, both Burger and Posner were highly respected conservative jurists. But they were not fantasists when it came to the Second Amendment. Posner has a great deal to say about Scalia more generally, but my point is simple: Scalia claimed to be a textualist, but he completely ignored the following italicized text of the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

That text clearly articulates a collective need, thereby justifying a collective right. This is how the Second Amendment had always been understood, until, as Michael Waldman explained, the National Rifle Association embarked on a multi-decade propaganda campaign to brainwash the American public. Brainwashing can effectively spread a fantasy. But it is powerless to transform it into truth.

Just as the NRA waged a decades-long propaganda war to push their constitutional fantasy through the Supreme Court, many on the religious right are organizing to do the same with the First Amendment now. They’d like to use their fantasy version of “religious freedom” as a license to discriminate, and ultimately create a two-tiered society, just like the one enshrined long ago by Plessy. They’ve at least gotten their foot in the door with decisions like Hobby Lobby and Masterpiece Cakeshop.

Progressive activists, both secular and religious, have been fighting back in recent years, particularly focused on reclaiming the true meaning of Religious Freedom Day, as I’ve written about here in 2016, 2017, 2018 and 2019. I’ve also written repeatedly about Project Blitz (here, here, here and here), a state-level campaign employing this “religious freedom” fantasy to advance a three-stage, state-level theocratic agenda, first uncovered by researcher Frederick Clarkson last year. All this is embodied in a more sweeping fantasy of America as a Christian nation, a fantasy thoroughly debunked by Andrew Seidel in “The Founding Myth: Why Christian Nationalism is Un-American” (Salon interview here), and challenged on the ground by a new initiative, Christians Against Christian Nationalism (Salon story here). Directly confronting the constitutional fantasy aspect, the third part of Seidel’s book is entitled “The Ten Commandments versus the Constitution,” and it shows how each has elements opposed to principles of the Constitution. The Supreme Court has yet to write this fantasy into law, but shown by the examples above, it would hardly be out of character for them to do so.

Beyond the examples cited — and others like them — there’s another way in which conservative constitutional fantasies lead us astray, not at the level of individual decisions, but at the level of judicial philosophy. I already mentioned Posner’s refutation of Scalia’s version of textual originalism, but that’s only one version of the broader originalist approach, which Georgia State law professor Eric Segall dismantled in his 2018 book “Originalism as Faith,” which I wrote about here. In Segall’s view, originalism meets a lot of psychological needs, not just for judges, but for the broader public as well:

When the justices connect us to our past by supporting their decisions with persuasive evidence of prior agreements, they cultivate and maintain a distinctively American approach to hard public policy questions.

In addition, judicial appeals to original meaning might suggest that the justices are following the decisions of the founders, not imposing their own personal values. The justices want the American people to have faith that their decisions are grounded in prior law, not personal predilection, and references to originalist sources make that goal easier.

It’s a soothing “just-so story,” in other words. But it utterly fails in practice, as Segall told me in our interview:

Virtually every constitutional law case [decided by the Supreme Court] involves text that is imprecise, unclear, vague — equal protection, due process, establishment, unreasonable search and seizure, whatever. And as applied to the facts of any modern case, the history behind that is going to be extremely contested, even if we assume its relevance, which I don’t necessarily assume.

Thus, originalism is worthless at best. At worst, it’s a smokescreen for bad decisions:

The main argument in my book is that originalism doesn’t do anything. It’s never done anything. Forget about it. We should stop pretending text, history and precedent dictate Supreme Court decisions, and we should make [the justices] explain exactly why they’re doing what they’re doing — for transparency purposes.

But transparency is the last thing that the conservative peddlers of constitutional fantasies want. They didn’t want it in Dred Scott, nor in Plessy, Santa Clara, Heller or Bush v. Gore. At bottom, President Trump’s “phony emoluments clause” was nothing new for conservatives. In fact, it was part of a very long tradition. You might even say it was evidence that he’s a true conservative after all!

Paul Rosenberg is a California-based writer/activist, senior editor for Random Lengths News, and a columnist for Al Jazeera English. Follow him on Twitter at @PaulHRosenberg. On election night in Florida, Bush led Gore by 1,784 votes. Because of the closeness of the election, an automatic recount began two days later in every county. Hundreds of lawyers flocked to Florida. Ben Ginsberg, national counsel for the Bush campaign, called it “Woodstock for constitutional lawyers. ”

Ted Cruz, a 29-year-old domestic-policy adviser on the Bush campaign at the time and a former law clerk for Chief Justice William Rehnquist, put together Bush’s legal team. One of his first calls was to John Roberts, whom Cruz knew from the close-knit network of former Rehnquist clerks,nicknamed the Cabal.

“We started to assemble a team of the best lawyers and in particular the best Supreme Court lawyers in the country, and John’s name naturally came near the top of the list,” Cruz told The New York Times in 2005. Roberts, who had clerked for Rehnquist in 1980 and was now in private practice, caught the next flight to Tallahassee.

Ted Cruz, then 29, put together George W. Bush’s legal team in the 2000 election fight.

Roberts had a long history of opposition to voting rights. As a young lawyer in Ronald Reagan’s Justice Department, Roberts led the charge against the 1982 reauthorization of the VRA, writing more than two dozen memos criticizing the landmark civil-rights law. Voting-rights violations “should not be made too easy to prove,” he wrote, and would lead to “a quota system in electoral politics.” Now he was helping the Bush team prevent eligible votes from being counted.

Roberts edited legal briefs, including the Bush campaign’s 50-page submission to the Supreme Court, and prepared Theodore Olson, a former assistant attorney general under Reagan, for oral arguments. He also advised Florida’s governor, Jeb Bush, on how the state legislature could assign its presidential electors to George W. Bush before the recount was finished. “I really appreciate your input on my role in this unique and historic situation,” Bush wrote to Roberts.

Roberts’s name appeared on no briefs, but his influence was unmistakable. “He is one of the finest legal writers of his generation,” Cruz said. “His editing pen was invaluable.”

The Bush campaign, which led by 327 votes after the automatic recount, wanted as few disputed ballots accepted as possible. When the Florida Supreme Court ordered a statewide manual recount, which favored Gore, Bush appealed to the Supreme Court. The Supreme Court halted Florida’s recount four days later, on December 12, thereby declaring Bush the winner of the election. No justice put his name on the unsigned 5–4 opinion.

The Court asserted that the recount violated the equal-protection clause of the14th Amendment— established in 1868 to secure the rights of African-Americans—because there was no uniform statewide standard for counting disputed ballots in each county. In a draft of her dissent, Justice Ruth Bader Ginsburg observed in a footnote that if there was any equal- protection violation in Florida, it was because black voters encountered a disproportionate number of problems voting. Justice Antonin Scalia, her closest friend on the Court, objected to Ginsburg’s “Al Sharpton” footnote, according to The New Yorker’s Jeffrey Toobin, and she took it out. When one read the Bush v. Gore decision, it was as if the disenfranchisement of black voters had never occurred. https://www.nytimes.com/2019/07/18/us/politics/eugene-scalia-labor-secretary.htm July 18, 2019 ... Trump saidThursday that he would name Eugene Scalia as his next secretary of labor, tapping the longtime labor lawyer and son of the former Supreme Court justice Antonin Scalia for a position with vast responsibility over the American work force.

The appointment is likely to be contested by Democrats and labor unions because Mr.Scalia has a long record of representing Walmart and other companies that pushed back against unions and tougher labor laws. He was a top lawyer for the Labor Department in the George W. Bush administration and is currently a partner in the Washington office of Gibson, Dunn & Crutcher, a prominent corporate law firm.

In a post on Twitter, Mr. Trump said Mr. Scalia “has led a life of great success in the legal and labor field and is highly respected. I am pleased to announce that it is my intention to nominate Gene Scalia as the new Secretary of Labor. Gene has led a life of great success in the legal and labor field and is highly respected not only as a lawyer, but as a lawyer with great experience....

— Donald J. Trump (@realDonaldTrump If confirmed, Mr. Scalia will replace Alexander Acosta, who was distrusted by anti-labor conservatives during his two and a half years in the job. He said last week that he would resign amid scrutiny of his handling of a sex crimes case involving the financier and onetime Trump friend Jeffrey Epstein when Mr. Acosta was a federal prosecutor in Florida. Mr. Acosta’s deputy, Patrick Pizzella, is to serve as acting secretary when Mr. Acosta’s resignation becomes effective on Friday. Mr. Pizzella is viewed as a more natural ally of free-market conservatives than Mr. Acosta was.<

...Mr. Scalia, like his father, who died in 2016, is a member of the Federalist Society, a conservative legal organization that has attained enormous influence within the Trump administration. The group has suggested numerous Trump judicial appointees and played a key role in their confirmations, including those of Mr. Trump’s two Supreme Court nominees, Brett Kavanaugh and Neil Gorsuch. Many Democrats view the Federalist Society as a “corporate, right-wing” organization bent on undermining the federal bureaucracy, as Senator Sheldon Whitehouse of Rhode Island& https://www.whitehouse.senate.gov/news/speeches/whitehouse-remarks-on-the-federalist-society-and-leonard-leo" ...Two people familiar with his appointment said several conservatives had suggested Mr. Scalia to the president in recent days. Among them was Senator Tom Cotton, Republican of Arkansas, who waited to suggest it until Mr. Acosta had agreed to step down, according to one person familiar with the discussions. After discussing the idea with several senior Trump officials, Mr. Cotton spoke to the president and then joined a meeting Thursday afternoon during which the president offered Mr. Scalia the job. ...Senator Chuck Schumer, Democrat of New York and the minority leader, said Thursday night that the selection of Mr. Scalia was a missed opportunity.

“President Trump has again chosen someone who has proven to put corporate interests over those of worker rights,” Mr. Schumer said. “Workers and union members who believed candidate Trump when he campaigned as pro-worker should feel betrayed. Mr. Scalia, 55, was nominated by Mr. Bush in 2001 to serve as solicitor of the Labor Department, but was never confirmed by the Senate, which was controlled by Democrats. Much of the fear about Mr. Scalia’s nomination was based on his opposition to a Clinton administration regulation that would have protected workers from repetitive stress injuries, which became known as the ergonomics rule. Mr. Scalia had weighed in frequently against the rule, deriding the rationale for it as “unreliable science.”< A former subordinate of Mr. Scalia’s in the solicitor’s office, Ann Rosenthal, said she was appalled when he was nominated to the position after observing his opposition to the ergonomics rule. But she was pleasantly surprised to find him reasonable and relatively committed to protecting workers. Ms. Rosenthal, who has since retired, recalled telling Mr. Scalia that he had far exceeded her expectations. “I have a different client now,” he responded. Mr. Scalia represented a variety of corporate clients at Gibson, Dunn & Crutcher.

In 2006, he helped Walmart triumph in a prominent fight against a Maryland law that would have required companies with more than 10,000 workers to either spend at least 8 percent of their payroll costs on health care, or pay into a state Medicaid fund. ...Mr. Scalia also defended Boeing in a politically charged case. A union representing the company’s workers in Washington State argued that Boeing had violated labor law by threatening to open another assembly plant in South Carolina unless the union agreed to a no-strike clause in its contract. The general counsel of the National Labor Relations Board under President Barack Obama brought a case against the company, which the union ultimately abandoned when it reached a deal to raise wages and expand its presence in Washington. But the case set off an intense backlash against the labor board among Republicans in Congress. The company and its Republican defenders derided the case as frivolous. He frequently dismissed the link between repetitive motion and physical ailments suffered by workers, writing in a Cato Institute publication that disorders such as carpal tunnel syndrome are “purportedly” caused by typing and asserting that “ergonomists cannot establish in any given case whether an ailment was caused by work or by genetic factors or other activities, such as sports.”

He saw in the rule evidence of crass political calculation by labor unions, writing in a Wall Street Journal opinion article “that ergonomic regulation will force companies to give more rest periods, slow the pace of work and then hire more workers (read: dues-paying members) to maintain current levels of production we have obtained a list of 95 new Trump administration appointees made over the past six months. Following a pattern we’ve detailed before, many of the hires previously worked on President Donald Trump’s campaign or at conservative think tanks such as the Heritage Foundation. In other cases, appointees seem to have little work experience at all.

We compiled the information from Freedom of Information Act requests and have added the appointees to our Trump Town app, which lets you search the disclosures of nearly 3,000 of them.

Here are a few of the recent appointments:

Lynn DeKleva, who worked for decades at chemical giant DuPont,was appointed to a job as an environmental engineer in the Environmental Protection Agency’s chemical safety and pollution prevention office in October. Typically, environmental engineering positions are not political appointments. DeKleva did not respond to ProPublica’s requests for comments. The EPA said in a statement that DeKleva “brings considerable product stewardship experience and knowledge with her to assist” the agency.
Ileana Garcia, a co-founder of the campaign’s Latinas for Trump, was appointed in October as deputy press secretary in the Department of Homeland Security.
Todd Thurman, a Heritage Foundation staffer who used to write for the Daily Signal and Breitbart, was appointed as the Department of Housing and Urban Development’s digital strategy specialist in September.
Antonin Scalia, the namesake grandson of the late Supreme Court justice, was appointed in September as a temporary assistant in the State Department. Scalia graduated from college last year. Scalia and the State Department did not respond to ProPublica’s requests for comments.

https://www.sourcewatch.org/index.php/Portal:Corporate_Rights

In a January 2011 interview, Justice Antonin Scalia told California Lawyer Magazine that the 14th Amendment's equal protection provisions do not apply to women (or homosexuals), arguing that gender discrimination is constitutional and can only be outlawed by the legislature. Under Scalia's strict "originalist" interpretation of the constitution, he refuses to infer that women be included in the constitution's 14th Amendment protections, as the drafters of the amendment only intended that it apply to African-Americans (despite the Court in 1971 finding that the 14th Amendment did indeed apply to women, in Reed v. Reed, 404 U.S. 71). Because Scalia found that constitutional protections applied to corporations in Citizens United, though, many commentators have expressed outrageover this apparent anomaly. Others have written in support of Scalia's originalist position.

Scalia's originalist interpretation of the 14th Amendment to exclude women but protect corporations may be unjust, but if one looks exclusively at the intent of the drafters, it is consistent. There are indications that Congress intended the 14th Amendment to also apply to corporations. In San Mateo County v. Southern Pac. R.R., 116 U.S. 138 (1885), a member of the Joint Congressional Committee that drafted the 14th amendment argued that Congress intended the word "person" to include "legal" persons (corporations) as well as "natural" persons, and the Court accepted his argument. However, while Congress in 1868 did not mention women when drafting the 14th Amendment, they also did not mention Latinos, Jews, or Asians; under Scalia's strict originalism, then, these groups would not be afforded the constitutional right of equal protection under the law. While many have expressed anger over Scalia's comments, their dismay may be better directed at originalist interpretations of constitutional rights.

scotus 5

whew

https://www.washingtonpost.com/local/public-safety/five-face-sentencing-monday-for-supreme-court-disruption/2017/07/23/54f9a392-6e38-11e7-9c15-177740635e83_story.html

...Immediately after the protests, a court audio recording captured Chief Justice John G. Roberts Jr. saying, “Oh, please,” and Associate Justice Antonin Scalia grumbling, “Give them stiff, stiff sentences.”

[Protest at the Supreme Court. Only problem? Few reporters were there to see it.]

Defendants, whopleaded guilty May 4, had asked to be sentenced to the 30 hours of jail time they had served after their arrest, and after Monday’s sentencing voiced sentiments ranging from relief to irritation at the government resources spent on the case against them....

hope?

...

look at Scalia’s legacy reveals why his absence in the coming months could be a pivotal factor on environmental issues.

With few exceptions, such as his opinion in Whitman vs. American Trucking upholding the Environmental Protection Agency’s (EPA) authority to set health-based air quality standards without regard to cost and his opinion in City of Chicago v. Environmental Defense Fund rejecting industry arguments that coal ash isn’t a hazardous waste, Justice Scalia’s environmental legacy is decidedly negative.

Interpreting “Standing” and “Harm”

He consistently voted in favor of property rights over protection of endangered species, wetlands and other natural resources. He dissented in the court’s landmark ruling in Massachusetts vs. EPA that the Clean Air Act authorizes the agency to regulate the carbon pollution causing global warming and ocean acidification.

He wrote the majority opinion in a case limiting EPA’s authority to require pre-construction permits for new power plants that only emit greenhouse gases. He wrote the opinion overturning the mercury rule on a technicality—namely, that EPA should have considered cost as a threshold matter before even embarking on the rule-making instead of at the stage when the regulations were actually being applied to specific facilities.

He argued that the Clean Water Act should be narrowly construed to apply only to “relatively permanent bodies of water” rather than, as the lower courts had consistently ruled for more than 30 years, to the entire tributary systems of the nation’s major waterways.

And he is the author of several decisions severely limiting the ability of environmental plaintiffs to challenge unlawful government actions. This includes Lujan vs. Defenders of Wildlife, which the late Justice Blackmun in his dissent characterized as a “slash and burn expedition through the law of environmental standing.”

To establish standing, a plaintiff must show how it is injured by the action being challenged. Scalia applied a more liberal test of injury for industry plaintiffs than for environmental plaintiffs. Standing was presumed whenever industry alleged that a government action might cause undue economic harm but not when an environmental organization alleged that the same action would cause undue environmental harm.

Whither the Clean Power Plan?

Though President Obama has said he intends to nominate a successor “in due course,” Senate Republicans have vowed to stall the confirmation process in the hope that they will win the White House and have the opportunity to nominate someone more to their liking.

Suddenly the Supreme Court has become a huge prize in the 2016 elections and, given the stakes involved, it is likely that the vacancy will remain well into 2017 and the court will be forced to make a number of difficult decisions with an evenly divided bench.

A split court has important implications in a number of key environmental cases.

Top of the list is the president’s Clean Power Plan (CPP), a rule that requires states to develop plans to lower carbon dioxide emissions from power plants. Only days before Scalia’s death, the court in a 5-4 party line vote blocked the rule’s implementation pending a decision by the DC Circuit, which has scheduled oral argument for June 2. The stay order provides that it will remain in effect until the Supreme Court either denies review (unlikely) or issues a final decision.

Most observers believe the government, arguing that the Clean Power Plan is legal, drew a favorable panel on the DC Circuit court, which includes Judge Sri Srinivasan, who is rumored to be on Obama’s short list of nominees.

http://ecowatch.com/2016/02/19/scalia-death-climate-issues/

http://www.alternet.org/news-amp-politics/why-scalias-death-huge-blow-right-wing-agenda-washington

justice Antonin Scalia isdead, and his passing is nothing less than a legal and political earthquake. It will have a huge impact, not only on the court's present term but on the course of constitutional law.

Beginning with his appointment to the high court in 1986, Scalia was the intellectual leader of what I and many other legal commentators have termed a conservative "judicial counterrevolution," aimed at wresting control of the nation's most powerful legal body from the legacy of the liberal jurists who rose to power in the 1950s and '60s under the leadership of then-Chief Justice Earl Warren.

Scalia was a key architect of the jurisprudential theories of original intent andtextualism, and the author of numerous landmark opinions. Among his most important rulings was the 5-4 decision in District of Columbia v. Heller, which held for the first time that the Second Amendment protected an individual's right to bear arms.

But Scalia was also an unvarnished, intemperate and intolerant ideologue, railing against same-sex marriage, voting rights, Obamacare, affirmative action and other progressive causes. In recent years, often finding himself in dissent, he became unhinged at times, ridiculing his more moderate colleagues for engaging in what he called analytical "argle-bargle" and "interpretive jiggery pokery," and for doling out legal benefits to allegedly undeserving litigants that he called "pure applesauce."

The impact of Scalia's death will be felt immediately in a number of pending high-profile cases, transforming anticipated 5-4 conservative rulings into 4-4 stalemates. Under the court's rules, 4-4 decisions carry no precedential weight and leave intact the lower-court rulings under review.

This means that proponents of affirmative action (Fisher v. Texas), as well as public-employee unions (Friedrichs v. California Teachers Association), can expect constitutional reprieves, because the circuit court rulings issued in their favor will be allowed to stand. It also means that supporters of abortion rights (Whole Woman's Health v. Hellerstedt) and immigration rights (United States v. Texas) will have an easier path toward overturning adverse lower-court decisions.

Scalia's passing will also alter the prospects for overturning some of the court's most conservative recent rulings -- not only on the Second Amendment but on campaign finance, environmental regulation and the constitutionality of the death penalty, among others.

Politically, Scalia's passing will unleash a pitched battle on two fronts: first, in the fight to name his successor, and second, as an issue in the upcoming presidential elections.

In the coming weeks and months, we can expect to hear a rising and increasingly hysterical chorus of Republicans demanding that President Obama refrain from nominating Scalia's successor. Indeed, if initial press reports are any indication, the trench warfare has already begun.

But with roughly 11 months remaining in his term, Obama undoubtedly will move forward. Anyone he names will surely be more liberal than Scalia, and anyone he names will tip the balance of the court. Those who remember the televised hearings on the nominations of Justice Clarence Thomas and former Solicitor General Robert Bork can expect clashes in the Senate Judiciary Committee (which conducts hearings on Supreme Court nominations) that will make those bygone proceedings seem genteel.

At the same time, the future of the Supreme Court -- always an issue in presidential campaigns -- will move front and center. Assuming that GOP senators will filibuster any Obama nomination -- as I think probable -- voters will be asked to contemplate what the future of America will look like with a court molded by a President Trump or Cruz, or a President Sanders or Clinton. The choice facing voters will be stark.

I take no joy in the death of Antonin Scalia. But speaking as a progressive and as a staunch defender of human rights and as one who believes our Constitution is a living document that must be read expansively over time, I can't say I will mourn his absence from the bench.

We have an opportunity to repair some of the damage Scalia and his right-wing brethren have done. Our task now is to take advantage of the opening.

http://www.motherjones.com/politics/2015/12/justice-scalia-suggests-blacks-belong-slower-colleges-fisher-university-texas

During oral arguments in a pivotal affirmative action case on Wednesday morning, Supreme Court Justice Antonin Scalia raised the suggestion that African American students might belong at less rigorous schools than their white peers, and that perhaps the University of Texas should have fewer black students in its ranks.

Scalia's comments came during arguments in *Fisher v. University of Texas*, a case over whether the university's use of race in a sliver of its admissions decisions is constitutional. The University of Texas-Austin is being challenged over its use of race in admissions decisions for about 25 percent of its freshman class. About 75 percent of the students at UT-Austin are admitted through what's known as the Top Ten Percent program, in which any student graduating within the top 10 percent of his or her class is guaranteed admission, regardless of race. The other 25 percent are admitted via a "holistic" process that takes race, and other factors, into account.

It's the "holistic" program that Abigail Fisher—who was denied admission for the university in 2008—is challenging.<...The University of Texas has determined that if it excluded race as a factor, that remaining 25 percent would be almost entirely white. During the oral arguments, former US Solicitor General Greg Garre, who is representing the university, was explaining this to the justices. At that point, Scalia jumped in, questioning whether increasing the number of African Americans at the flagship university in Austin was in the black students' best interests. He said...There are those who contend that it does not benefit African Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well. One of the briefs pointed out that most of the black scientists in this country don't come from schools like the University of Texas. They come from lesser schools where they do not feel that they're being pushed ahead in classes that are too fast for them.

After a comment like this, Court watchers will really be looking forward to his opinion in the case.

Why the Latest Supreme Court Term Was the Worst In Decades for Conservative Justices

But next term may see conservative backlash.

By Kenneth Jost / Supreme Court Yearbook/Jost on Justice July 13, 2015

Chief Justice John G. Roberts had just finished reading his biting dissent in the same-sex marriage case when he took up the more mundane duty of announcing that Justice Antonin Scalia had the opinion in the next case: Johnson v. United States. “Don’t go away,” Scalia quipped.

Scalia’s opinion would have gotten a fair share of attention that day [June 26] but for the marriage decision. With the votes of six justices, the court struck down a provision of federal law that imposed an additional 15-year to life prison term on a federal offender with at least three prior convictions for “violent” felonies.

The Armed Career Criminal Act, enacted in 1984, applies to some specific priors and in the so-called “residual clause” also includes crimes with “conduct that presents a serious potential risk of physical injury to another.” Scalia had twice written dissents, in 2007 and 2011, urging that the clause be struck down as unconstitutionally vague.

Scalia appeared to be as cheerful as a canary-eating-cat as he announced the decision that vindicated his dissents of still recent memory. By contrast, the 79-year-old justice was at his sarcastic worst the day before when he dissented from the decision written by Roberts that saved the Affordable Care Act.

In fact, it was a bad term overall for Scalia: apparently his worst ever. He dissented in 23 cases, the highest number at least since the 1992-93 term when I began counting dissenting votes for my annual series Supreme Court Yearbook.

Scalia was not alone. The court’s three other reliable conservatives also had personal-worst years. Justice Clarence Thomas dissented in 29 cases: not only his highest number, but also the highest figure for any justice since OT 1992. Justice John Paul Stevens held the previous record: 28 dissents in two separate terms, 1999-2000 and 2008-09.

The Supreme Court Yearbook compilation does not reach back to Scalia’s first six terms or Thomas’s first. But the court’s conservatives generally held sway during those years, so their dissenting numbers were unlikely to have been on the high side.

Roberts and Justice Samuel A. Alito Jr. also recorded personal highs for dissenting votes during OT 2014. Roberts cast 16 dissenting votes, surpassing his previous high of 14 dissents in OT 2008. Alito cast 21 dissenting votes; he had previously dissented in 16 cases in the 2012-2013 term.

Meanwhile, three of the court’s liberal justices recorded personal bests. Ruth Bader Ginsburg cast 10 dissenting votes, the lowest number in her 23 terms. With six dissents, Stephen G. Breyer had the lowest number in his 22 terms; he was also the lowest of any of the justices for the term — the second time he has had that distinction. With eight dissents, Sonia Sotomayor had the lowest number for her six terms; Kagan, with 11 dissents, had the second lowest number for her five terms.

The historical comparisons fortify the general characterization of the court as having tilted quite unusually to the left in OT 2014. The liberal justices, often bolstered by votes from the bloc-shifting Anthony M. Kennedy, prevailed not only in the marriage and Obamacare cases but also in most of the other important, divided decisions.

Scalia’s late-term victory in Johnson, however, shows the conservatives may be down but not out. Indeed, the conservatives won two of the three decisions on the term’s final day, and they appeared to be the moving force the next day in a bit of aggressive agenda-setting for the coming term.

The justices accepted for next term a significant challenge to public employee unionsbrought by dissident California teachers, Friedrichs v. California Teachers Association. This will be the court’s third case in five years challenging so-called agency shop rules that require public employees to pay fees to unions for the costs of collective bargaining even if they are not members. The plaintiffs claim the fees violate their freedom of speech and association; the unions say eliminating the fees would allow the dissidents to be free-riders — getting union-provided representation and benefits without paying for them.

The court struck down an agency shop provision in a decision last year affecting Illinois home health care workers, Harris v. Quinn (2014). In his majority opinion, Alito criticized but stopped short of overruling the precedent that allows agency shop provisions: Abood v. Detroit Board of Education (1977). The new case is viewed by public employee unions as the shoe set to fall.

The court had already set up a new test of racial preferences in university admissions by agreeing to hear Fisher v. University of Texas. This is the sequel to its earlier ruling in the same case in 2013 instructing the federal appeals court to take a second look at UT’s policies.

The conservative justices were also the likely votes for hearing a politically significant redistricting case, Evenwel v. Abbott, also from Texas. The plaintiffs want to read the one-person, one-vote rule to count the voting population instead of total population in equalizing legislative districts. A ruling to that effect could shift political power away from areas with significant non-citizen populations or low voter registration.

With those and other cases already teed up, conservatives are hoping for the best and liberals bracing for the worst. “Next term is going to be at least as important as this term, if not more,” remarked Steven Vladeck, a professor at American University’s Washington College of Law.

Kenneth Jost is author of Supreme Court Yearbook and Supreme Court From A to Z (both CQ Press) and Trending Toward #Justice. He graduated from Harvard College and Georgetown University Law Center, where he is an adjunct professor

http://www.alternet.org/civil-liberties/why-latest-supreme-court-term-was-worst-decades-conservative-justices

6/30 spoke 4th rant on wandered into gay marriage;

In his dissenting rant against Thursday’s Burwell decision, Justice Scalia called the whole thing ‘jiggery-pokery.’ Here’s what that particularly colorful turn-of-phrase actually means.

In his written dissent to the Supreme Court's majority decision to let Obamacare live, Justice Antonin Scalia made a number of odd claims, like the court's ruling meant that "words no longer have meaning." But it was his decision to employ a little-used British phrase that elevated the legal document to self-parody.

"The Court's next bit of interpretive jiggery-pokery involves other parts of the Act that purportedly presuppose the availability of tax credits on both federal and state exchanges," Scalia wrote.

Jiggery-pokery.

It means a manipulative or slyly dishonest act – synonyms include “trickery” or “hocus-pocus”. According to Merriam-Webster, the word is thought to stem from the Scottish phrase joukery-pawkery, jock being "cheat" or "dodge" and pawk being to "trick."

Jiggery-pokery as Scalia used it had previously been thought to date back to the 1890

epa mercury: no sense to spend billions to save millions on health and envir. UpR 6/30 dar jamel: tho AGW will cost trillions (but later vs biz 1/4)

http://www.nytimes.com/2015/06/30/us/supreme-court-blocks-obamas-limits-on-power-plants.html?_r=0

5-4 w/ kennedy

The Supreme Court on Monday blocked one of the Obama administration’s most ambitious environmental initiatives, an Environmental Protection Agencyregulation meant to limit emissions of mercury and other toxic pollutants from coal-fired power plants.

Industry groups and about 20 states had challenged the E.P.A.’s decision to regulate the emissions, saying the agency had failed to take into account the punishing costs its rule would impose.

The Clean Air Act required the regulation to be “appropriate and necessary.” The challengers said the agency had run afoul of that law by deciding to regulate the emissions without first undertaking a cost-benefit analysis.

Writing for the majority, in the 5-to-4 decision, Justice Antonin Scalia wrote: “It is not rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits. Statutory context supports this reading.”

The E.P.A. had argued that it was not required to take costs into account when it made the initial determination to regulate. But the agency added that it had done so later in setting emissions standards and that, in any event, the benefits far outweighed the costs.

The two sides had very different understandings of the costs and benefits involved. Industry groups said the government had imposed annual costs of $9.6 billion to achieve about $6 million in benefits. The agency said the costs yielded tens of billions of dollars in benefits.

In dissent, Justice Elena Kagan wrote: “The agency acted well within its authority in declining to consider costs at the opening bell of the regulatory process given that it would do so in every round thereafter — and given that the emissions limits finally issued would depend crucially on those accountings.”

The decision, Michigan v. Environmental Protection Agency, No. 14-46, does not strike down the rule, but it means the E.P.A. will have to review and rewrite it, taking costs into consideration.

http://thinkprogress.org/climate/2015/06/29/3675111/scotus-epa-kagan-dissent/

In a 5-4 ruling Monday, the Supreme Court found fault with the EPA’s regulation of toxic heavy metal pollution from coal and oil-fired plants, claiming that the agency failed to prove the regulations “appropriate and necessary” because they did not initially take costs into consideration.

To Justice Elena Kagan, who wrote the Court’s dissent, that reasoning failed to acknowledge all the other times the EPA took cost into consideration throughout the regulatory process.

As Kagan wrote:

That is a peculiarly blinkered way for a court to assess the lawfulness of an agency’s rulemaking. I agree with the majority — let there be no doubt about this — that EPA’s power plant regulation would be unreasonable if ‘[t]he Agency gave cost no thought at all.’ … But that is just not what happened here. Over more than a decade, EPA took costs into account at multiple stages and through multiple means as it set emissions limits for power plants. And when making its initial ‘appropriate and necessary’ finding, EPA knew it would do exactly that — knew it would thoroughly consider the cost-effectiveness of emissions standards later on. That context matters.

When first deciding to regulate mercury pollution from power plants, Kagan noted that the EPA made its decision based on the fact “that power plants’ emissions pose a serious health problem, that solutions to the problem are available, and that the problem will remain unless action is taken.”

Kagan said the EPA didn’t consider costs in the first stage of the regulatory process because it knew that it would have a chance to consider costs later on.

“[T]he Agency, when making its ‘appropriate and necessary’ finding, did not decline to consider costs as part of the regulatory process,” she wrote. “Rather, it declined to consider costs at a single stage of that process, knowing that they would come in later on.”

Later in the dissent, Kagan argued that it would be impossible for an agency to anticipate all the consequences of a particular regulation during the regulation’s very first stages:

Suppose you were in charge of designing a regulatory process. The subject matter — an industry’s emissions of hazardous material — was highly complex, involving multivarious factors demanding years of study. Would you necessarily try to do everything at once? Or might you try to break down this lengthy and complicated process into discrete stages? And might you consider different factors, in different ways, at each of those junctures? I think you might.

Moreover, Kagan argued, the EPA made a decision to regulate mercury emissions from power plants before it designed those emission standards, making it impossible to calculate potential costs associated with standards that hadn’t even been created yet.

“Simply put,” Kagan wrote, “calculating costs before starting to write a regulation would put the cart before the horse.”

In the majority opinion, Scalia compared the EPA to a potential car owner looking to purchase a Ferrari without thinking about the costs of the car. It was a metaphor that Kagan didn’t love:

The comparison is witty but wholly inapt. To begin with, emissions limits are not a luxury good: They are a safety measure, designed to curtail the significant health and environmental harms caused by power plants spewing hazardous pollutants. And more: EPA knows from past experience and expertise alike that it will have the opportunity to purchase that good in a cost effective way. A better analogy might be to a car owner who decides without first checking prices that it is “appropriate and necessary” to replace her worn-out brake-pads, aware from prior experience that she has ample time to comparison shop and bring that purchase within her budget.

When deciding to regulate mercury pollution from power plants, Kagan contined, the EPA did not ignore the question of cost. Instead, it chose to wait until it had a better idea of what the emission regulations would be to consider the cost that those regulations would incur.

“The majority arrives at a different conclusion only by disregarding most of EPA’s regulatory process,” Kagan wrote. “It insists that EPA must consider costs — when EPA did just that, over and over and over again.”

The majority’s decision, Kagan concluded, ignored the latitude given to the EPA by Congress about how to best account for costs and benefits when designing emissions regulations.

“And the result,” she wrote, “is a decision that deprives the American public of the pollution control measures that the responsible Agency, acting well within its delegated authority, found would save many, many lives.”

TAGS

4. Antonin Scalia brings up the devil in case about prayer.

It’s almost as if there’s a little red guy with horns and a tail sitting on the shoulder of the Supreme Court’s most verbose right-winger, making him say really off-the-wall things. Justice Antonin Scalia just keeps seeing the devil and his worshippers everywhere, bringing them up during oral arguments in a case about the constitutionality of legislative prayer. This, just weeks after a somewhat embarrassing interview in New Yorkmagazine in which hegleefully affirmed his belief in the Antichrist. And what’s wrong with that?

During this week’s case, fellow conservative jurist Samuel Alito was asking questions about whether any kind of prayer would be permissible before a legislative session, one that would not offend Christians, Jews, Muslims, or Hindus.

"What about devil worshippers?" Scalia interjected. Laughter ensued. He’s such a card.

His larger point was that not letting people pray before legislative meetings deprives them of their religious freedom, and that it is impossible to design a prayer that satisfies all faiths—not to mention lack thereof.

"What is the equivalent of prayer for someone who is not religious?" Scalia asked. "There are many people who do not believe in God. ... If you had an atheist [town] board, you would not have any prayer. I guarantee you."

Justice Antonin Scalia: “The 14th Amendment protects all races, not only the blacks.”

No friend of affirmative action, voting rights protections, or anything he deems “racial entitlements,” the high court's least inhibited conservative was at it again this week during oral arguments in a case in which advocates for minorities are challenging Michigan’s voter-approved ban on affirmative action in college admissions. The case reached the Supreme Court after a federal appeals court held the ban violates the 14th Amendment’s equal protection guarantee, in that it prevents minorities from lobbying for racial preferences, when other groups can lobby for their favored programs, Huffpo explained.

A lawyer challenging the ban argued that the original goal of the 14th Amendment was to protect minority rights against a white majority.

Scalia begged to differ. “My goodness,” he said. “I thought we’ve held that the 14th Amendment protects all races. I mean, that was the argument in the early years, that it protected only—only the blacks. But I thought we rejected that. You say now that we have to proceed as though its purpose is not to protect whites, only to protect minorities?”

A little history: the 14th Amendment was approved three years after the end of the Civil War, and it was definitely about protecting the rights of former slaves. Scalia has not made any secret of his view that the country is all done with that racism stuff. If anything, the pendulum has swung too far the other way, he seems to think.

In February, Scalia said Section 5 of the Voting Rights Act was a “perpetuation of racial entitlement.” He later joined the majority in voting to strike down the provision, which quickly led to several states enacting voter ID laws that are blatantly discriminatory.

Wonder how he’ll vote this time.

7 Outrageous and Downright Horrific Statements From the Right-Wing Fringe Just This Week

August 24, 2013 |

1. Justice Scalia wonders aloud if citizens should have rocket launchers.

How do you solve a problem like Scalia? The Supreme Court’s most shoot-from-the-hip, right-wing, Tea Partying, really un-judge-like judge mused this week in a speech in Montana about what sort of arms are protected under the Second Amendment. Might “shoulder-fired rocket launchers” be protected? Perhaps, he concluded. Scalia reminded the crowd that the framers of the Constitution put that amendment in there, after all, to preserve the right of the people to revolt against a tyrannical leader.

OK, that’s kind of extreme. Even the gun nuts aren’t making that argument, usually defending their right to bear all kinds of arms for some sort of self-defense against real or imagined criminals.

So it’s a tad off for a Supreme Court justice to be suggesting armed insurrection, no? And, of course, these days, that would probably require significantly more powerful weaponry than the muskets that helped win the Revolutionary War.

As if the gun nuts need any more encouragement to up their firepower.

AUGUST 19, 2013 BY MIKE DENNISON GAZETTE STATE BUREAU

BOZEMAN – U.S. Supreme Court Justice Antonin Scalia told a Montana audience Monday that American courts too often decide what rights we “ought to have,” when that decision instead should lie with the people, through their elected officials.

Scalia, speaking to more than 300 people at a Bozeman luncheon sponsored by the conservative Federalist Society, said this “inventing” of rights goes directly against his crusade to uphold the U.S. Constitution’s “original meaning” – a cause he said is losing ground.

“We’re now in an age when the high court’s opinions speak of an evolving Constitution,” he said. “It means what it ought to mean. And who decides what it ought to mean?

“Nine lawyers. Actually five lawyers. What, are you crazy? Who would ever set up a system like that?”

Scalia, considered an intellectual leader of the Supreme Court’s conservative wing, said the court’s justices are no better suited to decide what rights ought to exist than is “Joe Sixpack.”

“These aren’t questions for lawyers,” he said. “These are the kind of questions that society debates and decides.”

Scalia, 77, has been on the Supreme Court since 1986, appointed by then-President Ronald Reagan.

The Federalist Society, a lawyers’ group that emphasizes many of the conservative principles espoused by Scalia, arranged Scalia’s visit here to help like-minded lawyers establish a Montana chapter of the group.

Organizers sold 320 tickets at $30 apiece for the luncheon, selling out the event a couple of weeks after it was advertised in July, said one of its organizers, state Senate Majority Leader Art Wittich, R-Bozeman.

A dozen Republican Montana officeholders attended the event, including Attorney General Tim Fox, who introduced Scalia, and U.S. Rep. Steve Daines.

Scalia delivered prepared remarks for barely 20 minutes, but then addressed questions from the audience for another 40 minutes, talking about everything from Congress to abortion to states’rights.

Many of his comments centered on his cause of interpreting the “original meaning” of the U.S. Constitution and its amendments, which he said spell out clearly defined rights that should not be embellished by the courts.

“I’m just pointing out what happens when you don’t stick to the original meaning of the Constitution,” he said. “The court makes an amazing amount of decisions that ought to be made by the people.”

Scalia referred directly to the right of abortion as defined by the current court, which says states cannot place an “undue burden” on that right.

Five justices now must decide whether certain state laws create that undue burden, he said, and “if you think that’s law, you’re nuts.”

“I do not mean to demean the importance of the question,” he said. “Yes, it’s a hard question, and it has to be decided by somebody. But it is precisely the type of question that should be decided by a Legislature.”

When judges go beyond the original meaning to create rights that aren’t in the Constitution, confirmation hearings for new justices become a forum on which rights the nominee may vote to create, uphold or get rid of, he said.

“The most important question when there is a nomination is not, Is this person a good lawyer,’” Scalia said. “It’s, Will this person put in the new rights that I like, and take out the ones I dislike.’ It’s like having a mini-constitutional convention every time you nominate a new justice.”

Scalia also was asked which were the toughest and most wrenching cases he had decided.

“The toughest was some one or another damn patent case,” he said, to much laughter. “Those are really, really hard. There is absolutely no correlation between the importance of a case and its difficulty.”

On most wrenching, Scalia thought for a moment: “Wrenching? Well … Is Obamacare too recent?”

The conservative crowd roared its approval of Scalia’s dissent against upholding the health reform law.

vice: scalia and dc went duck huntingjust before scotus ruled in sierra club req in secret task 109

Levi intel reforms, dc wanted to go after NYT hersch, look for papers in his apt etc//b2 warrantlss wiretaps and bank transactions 35. 1975 ATT and WUnion; scalia 38 yo asst atty gen ~ foia congress oversight 36 Carter signed FISA 37

strat ingor: expand 5th amend on taking longtime goal: scalia 1992 argued that developer shd be compensated b/c limited from build in sensitve areas

for 1st x, GAO sued for info, recently appt judge denied, no appeal , but Sierra C and Jud watch won. scotus delayed till after election; scalia had gone to oil co duck hunt junket refused to recuse, tho many demands 100 docs heavy redacted, and nothing from CD DC? mtgs 100

Right-wing Justice Antonin Scalia shocked the courtroom when he dismissed the Voting Rights Act as a“perpetuation of racial entitlement,” suggesting that the right of blacks to vote was some kind of government handout.

The majority put aside the dissenting opinion’s repeated mentions of the special favors that the corporate form gets, treating those as a completely inadequate foundation for treating corporations differently as political citizens. And Justice Antonin Scalia, in a separate opinion buttressing the majority ruling, went to considerable lengths to enhance the constitutional pedigree of corporations’ rights and to denounce the dissenters’ suggestion that the Founders did not think highly of corporations.

5. Supreme Court Partisanship

In the Gilded Age, the Supreme Court interpreted laws not as to the intent of the lawmakers, but to promote business interests. It refused to enforce the 14th Amendment to stop segregation, but it did create the idea that a corporation was a person with rights. The Sherman Anti-Trust Act of 1890 was intended to moderate monopolies; the Supreme Court only enforced it against unions since organized labor “unfairly restrained trade.”

Today’s Supreme Court has resorted to this aggressively partisan stance. The Court is fine with the open flouting of the 4th Amendment, allowing strip searches of middle-school girls if they’re suspected to be carrying drugs, but creates a grotesque expansion of the 14th Amendment in the Citizens United decision. Meanwhile, Antonin Scalia just took the opportunity in a Supreme Court dissent to lambast his colleagues for striking down much of the Arizona anti-immigration law by approvingly citing 19th-century laws in the South that limited the movement of African Americans.

tom the dancing bug toon

http://www.boingboing.net/2011/06/29/tom-the-dancing-bug-55.html

Eugene Scalia - An anti-labor lawyer with Gibson, Dunn & Crutcher LLP who became Solicitor of Labor in January 2002 through a George W. Bush recess appointment after the Senate refused to confirm the nomination. He resigned in January 2003, shortly after the appointment expired, in order to avoid what would have been a bruising Senate confirmation hearing.

http://en.wikipedia.org/wiki/Antonin_G._Scalia

merch of doubt: made a mistake in the sci, then said that's why he does not want to deal w/ gw p2

Antonin Gregory Scalia ( listen); born March 11, 1936) is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice. Appointed to the Court by President Ronald Reagan in 1986, Scalia has been described as the intellectual anchor of the Court's conservative wing.

Scalia was born in Trenton, New Jersey, and attended public grade school and Catholic high school in New York City, where his family had moved. He attended Georgetown University as an undergraduate, and obtained his Bachelor of Laws degree from Harvard Law School. After spending six years in a Cleveland law firm, he became a law school professor. In the early 1970s, he served in the Nixon and Ford administrations, first at minor administrative agencies, and then as an assistant attorney general. He spent most of the Carter years teaching at the University of Chicago, where he became one of the first faculty advisers of the fledgling Federalist Society. In 1982, he was appointed as a judge of the United States Court of Appeals for the District of Columbia Circuit by President Ronald Reagan.

In 1986, Scalia was appointed by Reagan to the Supreme Court to fill the associate justice seat vacated when Justice William Rehnquist was elevated to Chief Justice. Whereas Rehnquist's confirmation was contentious, Scalia was asked few difficult questions by the Senate Judiciary Committee, and faced no opposition. Scalia was unanimously confirmed by the Senate, and took his seat on September 26, 1986.

In his near quarter-century on the Court, Scalia has staked out a conservative ideology in his opinions, advocating textualism in statutory interpretation and originalism in constitutional interpretation. He is a strong defender of the powers of the executive branch, believing presidential power should be paramount in many areas. He opposes affirmative action and other policies that treat minorities as groups. He files separate opinions in large numbers of cases, and, in his minority opinions, often castigates the Court's majority in scathing language.

...

Legal career

Scalia began his legal career at Jones, Day, Cockley and Reavis in Cleveland, Ohio, where he worked from 1961 to 1967.^[7] He was highly regarded at Jones Day and would most likely have made partner, but later stated he had long intended to teach.^[11] He became a Professor of Law at the University of Virginia in 1967, moving his family to Charlottesville, Virginia.^[11]

After four years in Charlottesville, in 1971, Scalia entered public service. President Richard Nixon appointed him as the general counsel for the Office of Telecommunications Policy, where one of his principal assignments was to formulate federal policy for the growth of cable television.^[8] From 1972 to 1974, he was the chairman of the Administrative Conference of the United States, a small independent agency that sought to improve the functioning of the federal bureaucracy.^[8] In mid-1974, Nixon nominated him as Assistant Attorney General for the Office of Legal Counsel.^[8] After Nixon's resignation, the nomination was continued by President Gerald Ford, and Scalia was confirmed by the Senate on August 22, 1974.^[12]

In the aftermath of Watergate, the Ford administration was engaged in a number of conflicts with Congress. Scalia repeatedly testified before congressional committees, defending Ford administration assertions ofexecutive privilege in refusing to turn over documents.^[13] Within the administration, Scalia advocated a presidential veto for a bill to amend the Freedom of Information Act, greatly increasing its scope. Scalia's position prevailed and Ford vetoed the bill, but Congress overrode it.^[14] In early 1976, Scalia argued his only case before the Supreme Court, Alfred Dunhill of London, Inc. v. Republic of Cuba. Scalia, on behalf of the U.S. government, argued in support of Dunhill, and that position prevailed.^[15]

Following Ford's defeat by President Jimmy Carter, Scalia worked for several months at the American Enterprise Institute.^[16] He then returned to academia, taking up residence at the University of Chicago Law School from 1977 to 1982,^[17] though he spent one year as a visiting professor at Stanford Law School.^[18]In 1981, he became the first faculty adviser for the University of Chicago's chapter of the newly founded Federalist Society.^[17]

...

Requests for recusals

Scalia recused himself in Elk Grove Unified School District v. Newdow, a claim brought by atheist Michael Newdow alleging the recitation of the Pledge of Allegiance (including the words "under God") in school classrooms, violated the rights of his daughter, who he said was also an atheist. Shortly after the United States Court of Appeals for the Ninth Circuit ruled in Newdow's favor, Scalia, speaking at a Knights of Columbus event in Fredericksburg, Virginia, stated that the Ninth Circuit decision was an example of how the courts were trying to excise God from public life. The school district requested that the Supreme Court review the case, and Newdow asked that Scalia recuse himself, which he did without comment.^[101]

Scalia refused to recuse himself in Cheney v. United States District Court for the District of Columbia (2005), a case concerning whether Vice President Dick Cheney could keep secret the membership of an advisory task force on energy policy. Scalia was asked to recuse himself because he had gone on a hunting trip with various persons including Cheney,during which he traveled one way on Air Force Two. Scalia refused to recuse himself, stating that though Cheney was a longtime friend, he was merely being sued in his official capacity, and that were justices to step aside in the cases of officials who are parties because of official capacity, the Supreme Court would cease to function. Scalia indicated that it was far from unusual for justices to socialize with other government officials, recalling that the late Chief Justice Fred M. Vinson played poker with President Harry Truman and that Justice Byron White went skiing with Attorney General Robert F. Kennedy. Scalia stated that he was never alone with Cheney during the trip, the two had not discussed the case, and the justice had saved no money since he had bought round-trip tickets, the cheapest available.^[102] Scalia was part of the 7–2 majority once the case was heard which generally upheld Cheney's position.^[103]

[Religion

Scalia resides in McLean, Virginia,^[104] and is a devout traditional Catholic. Uncomfortable with the changes brought about following Vatican II, Scalia regularly attends the Tridentine Latin Mass in both Chicago and Washington, and has driven long distances to parishes that he felt were more in accord with his beliefs.^[105]

In 2006, Scalia, approached by a reporter upon leaving church, was asked if being a traditional Catholic had caused problems for him. He responded by asking, "You know what I say to those people?", and with a gesture, cupping his hand under his chin and flicking his fingers out. The gesture, which was captured by a photographer, was initially reported by the Boston Herald as obscene. Scalia responded to the reports with a letter to the editor accusing the news staff of watching too many episodes of The Sopranos and stating that the gesture was a strong brush-off. Roger Axtell, an expert on body language, described the gesture as possibly meaning "I've had enough, go away" and noted, "It's a fairly strong gesture."^[106]

[ Assessment

After nearly a quarter century on the Court, and now past the age of seventy, Scalia characterizes his victories as "[d]amn few".^[107] His biographer, Joan Biskupic, speculates that Scalia, given good health, may remain on the Court for another decade.^[107]

Writing in The Forward, J.J. Goldberg described Scalia as "the intellectual anchor of the court's conservative majority".^[108] Scalia travels to the nation's law schools, giving talks on law and democracy.^[35] His appearances on college campuses are often standing room only.^[109] Ginsburg indicates that Scalia "is very much in tune with the current generation of law students ... Students now put 'Federalist Society' on their resumes."^[110] John Paul Stevens, who served throughout Scalia's tenure until his 2010 retirement; says of Scalia's influence, "He's made a huge difference. Some of it constructive, some of it unfortunate."^[110] Of the nine sitting justices, Scalia is most often the subject of law review articles.^[109]

Whereas Scalia is widely admired among conservatives, many liberals dislike his views. In March 2009, openly gay Congressman Barney Frank described Scalia as a "homophobe".^[111] Maureen Dowd described Scalia in a 2003 column,

He's so Old School, he's Old Testament, misty over the era when military institutes did not have to accept women, when elite schools did not have to make special efforts with blacks, when a gay couple in their own bedroom could be clapped in irons, when women were packed off to Our Lady of Perpetual Abstinence Home for Unwed Mothers ... Antonin Scalia is Archie Bunker in a high-backed chair.^[112]

Rossum, writing in 2006, before George W. Bush appointees Roberts and Alito had time to make an impact, said that Scalia had failed to win converts among his conservative colleagues for his use of originalism.^[113] Roberts and Alito, however, are younger men who take an originalist approach and who greatly admire Scalia and how he battles for what he believes in.^[114]

Scalia's dislike of legislative history may be a reason why other justices have become more cautious in its use.^[115] Gregory Maggs wrote in the Public Interest Law Review in 1995 that by the early 1990s, legislative history was being cited in only about forty percent of Supreme Court cases involving the interpretation of statutes, and no case of that era used legislative history as an essential reason for the outcome. Maggs suggested,

With Justice Scalia breathing down the necks of anyone who peeks into the Congressional Record or Senate reports, the other members of the Court may have concluded that the benefit of citing legislative history does not outweigh its costs. It is likely for this reason that the percentage of cases citing it has decreased dramatically. No one likes an unnecessary fight, especially not one with as formidable an opponent as Justice Scalia.^[115]

SON:

Eugene Scalia

From SourceWatch

Eugene Scalia, son of Supreme Court Justice Antonin Scalia, is a partner in the Washington D.C. office of Gibson, Dunn & Crutcher LLP. He co-chairs the firm's Labor and Employment Practice Group and is a member of the Appellate and Constitutional Law Practice Group. [1]

Dubbed the "godfather of the anti-ergonomics movement" by Molly Ivins and Lou Dubose in their book Bushwhacked: Life in George W. Bush's America, Scalia is best known for his opposition to OSHA's ergonomics standard. He has gone to great lengths to "prove" that repetitive motion injury, a well documented and often highly debilitating form of injury, is a myth invented by doctors. He is described as "tireless in his efforts to debunk the science of such injuries." [2] His National Coalition on Ergonomics, entirely supported by industry, tries to cast doubt on existing science and important safety regulations by posing such questions as "should businesses become laboratories for costly, unscientific government regulations?" [3] The OSHA repetitive motion injury standard, which had been ten years in the making, was scrapped shortly after George W. Bush took office due in part to Scalia's efforts. [4]

Scalia's anti-worker efforts extend far beyond ergonomics to all forms of worker protection. Called by Jim Gilliam, political author and producer, a "lobbyist with credentials," i.e., a lawyer representing business interests, he opposed an "OSHA standard to require that employers pay for required health and safety personal protective equipment such as respirators and gloves."[5][6] He co-authored a brief for the United Parcel Service denouncing the proposal saying:

"The administration provides no proof or credible argument that the proposed rule will improve health and safety, and in fact, the rule will cause significant economic harm, will not promote health and safety, and may reduce personal protective equipment by reducing collectively bargained cooperation between union and management in the implementation of personal protective equipment requirements. The proposed rule is far beyond OSHA's mandate and should be withdrawn."[7]

Frank Mirer, in the AP article "Bush Nominee", noted of Scalia's policies that "this is especially poignant now, as the whole country watched the heroic rescue teams and construction workers at the World Trade Center site, most working without the appropriate protective clothing." [8]

In January 2002, Scalia was appointed Solicitor of Labor in the U.S. Department of Labor in one of George W. Bush's controversial recess appointments following a Senate refusal to approve the nomination.[9]

The Solicitor, according to the DOL website, "is the principal legal officer of the Department of Labor, with responsibility for overseeing litigation conducted by the Department and for providing legal advice to the Secretary and other senior officials in connection with the laws the Department administers, including the Fair Labor Standards Act, the Davis-Bacon Act, the Labor-Management Reporting and Disclosure Act, the Occupational Safety and Health Act, the Federal Mine Safety and Health Act, and ERISA." [10].

In a scathing condemnation of Scalia's appointment Paul Wellstone said it was part of the Bush administration's direct assault on American workers. He said "the Solicitor of Labor is responsible for enforcing the most fundamental worker protection measures on the books." He went on to say "Mr. Scalia's professional record of antipathy toward the laws and principles that it would be his job to carry out make this a mismatch. He has been opposed throughout his career to what I see as the very mission of the Solicitor of Labor, who is not just the Department of Labor's lawyer, but is really the lawyer for workers throughout the entire country." [11] Wellstone's denunciation was widely echoed by labor rights supporters from Senator Edward M. Kennedy to the AFL-CIO. One writer noted: "The fact that Scalia is now the Labor Department's chief lawyer--the man who, in principle, represents worker interests in court--is the kind of thing a satirist would never dare invent." [12]

In opposing Scalia's nomination Senator Kennedy, noting "serious concerns" about Scalia's anti-labor record,said Scalia:

has never filed comments in support of a pro-worker regulation.
has said that employers should not be strictly liable in sexual harassment cases unless they expressly endorse the conduct of the harasser, despite the fact that the Supreme Court has held that employers are in fact liable for supervisor harassment in many cases.
has encouraged employers to challenge so-called "liberal" EEOC interpretations of the Americans with Disabilities Act when they are inconsistent with "sensible business practice." (Kennedy noted that, as Solicitor, Mr. Scalia would refer cases to the EEOC and have a role in defining "sensible business practice.")
has said that employees should pay for their own safety equipment, when the equipment is required by law.
has argued that union workplaces should be exempted from certain workplace laws, such as regular OSHA inspections and the overtime requirements of the Fair Labor Standards Act. ("But," Kennedy noted, "if we follow this logic, union workers would not be protected by the same minimum standard of rights provided to non-union workers -- thereby undermining the basic function of labor laws to provide a floor of rights for all workers." [13]

In the 2002 lockout of longshoremen in port facilities on the West coast, George W. Bush invoked the Taft-Hartley Act to force the workers to go back to work. As Solicitor, Scalia was the head lawyer on the government's negotiations between the Pacific Maritime Association and the longshoreman's union, the ILWU. But before he became Solicitor, one of his legal clients was the Pacific Maritime Association, creating a conflict of interest from which he refused to recuse himself (seemingly a family trait). In his October 10, 2002, Talking Points Memo on the topic, Joshua Micah Marshall reports: "The AFL-CIO's Lane Windham told TPM today that Scalia 'can't try to be impartial when he's represented one of the parties.' And we find it sorta hard to disagree with her." [14]

When Scalia's recess appointment expired in November 2002, Bush appointed him Acting Solicitor of Labor. Rather than face what would have been a bruising Senate confirmation hearing, Scalia resigned January 17, 2003.[15] He was succeeded by Deputy Solicitor Howard Radzely.

Scalia also became a source of controversy when his law firm represented George W. Bush in the 2000 Supreme Court case that halted the Florida presidential ballot recount and resulted in Bush becoming president of the US. While Eugene Scalia was not directly involved in the case, the federal statute on recusal requires that a justice recuse himself from any case in which their spouse or child is "known by the judge to have an interest that could be substantially affected by the outcome of the proceeding."**[16]**As a partner in the law firm, Eugene Scalia profited directly from the case both financially and professionally, yet his father Antonin Scalia refused to recuse himself from the case, casting a vote that helped determine who would become the next president of the United States.

Lawyers for Bush-Cheney

"In late 2000, Gibson, Dunn & Crutcherspent a long moment in the spotlight, when partner Theodore Olson took on the role of national co-chair of Lawyers for Bush/Cheney. Olson, who brought with him a record of eight wins and four losses in front of the nation's highest court, argued Bush's case in front of the Supreme Court in two out of the three proceedings. The star litigator has been credited as being instrumental in bringing about the final decision in favor of Bush. The firm did have one potential conflict of interest in taking the case: partner Eugene Scalia is the son of Supreme Court Justice Antonin Scalia. Gibson [W. Bush] made it known that the younger Scalia would have no involvement with the case, and Justice Scalia did not recuse himself from the case. (This proved crucial in the Supreme Court's 5-4 decision.)" [17]

Related Resources

Molly Ivins and Lou Dubose, Bushwhacked: Life in George W. Bush's America (contains a chapter, "Blues in Belize," devoted to the ergonomics legislation, the National Coalition on Ergonomics and the impact on worker health).

Bush's Pick for Nation's Chief Labor Law Enforcer Is Drawing Fire From Unions (Jul. 13, 2001)

By David Ratner

The AFL-CIO and other labor advocates are getting ready for a showdown in the U.S. Senate over the confirmation of Bush's choice for the nation's top labor lawyer.

Paying tribute to those who put him in office, Bush in May asked Eugene Scalia — son of conservative Supreme Court Justice Antonin Scalia — to fill the post of solicitor for the Department of Labor.

If confirmed, Eugene Scalia, a partner in the corporate law firm ofGibson, Dunn and Crutcher, will be the Labor Department's top lawyer, in charge of enforcing the nation's labor policies, prosecuting lawbreaking companies, and defending the various agencies within the department, including the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA).

According to John Hiatt, the AFL-CIO's General Counsel, "Scalia has distinguished himself through the extreme views he has espoused in opposition to federal and state ergonomics regulation, where he has contended [...] that workers reporting ergonomic injuries are simply unhappy or malingerers."

"We are continuing to look into Scalia's record to learn more about his positions and activities on issues of importance to working families, but we are very troubled by this nomination," he added.

Massachusetts Senator Ted Kennedy has already raised objections and will demand a thorough investigation into Scalia's ability to serve as an objective enforcer of the nation's labor laws.

The debate over Eugene Scalia is reminiscent of the heated opposition to Bush's choice for Attorney General, John Ashcroft, whose ultraconservative views raised concerns about his ability to enforce the nation's civil rights and abortion laws. Similarly, many in opposition to Scalia's appointment are worried that he will not vigorously and effectively enforce laws regulating overtime, wages and other workplace rights.

Given his conservative pedigree and his experience representing business interests, Gene Scalia will obviously not be running any extra miles for the nation's working people as Solicitor of Labor. In fact, he has shown an eagerness to oppose labor regulations without regard for the actual needs of workers.

In an article penned for the Wall Street Journal, Scalia dismissed research on repetitive-strain injuries conducted by the National Institute for Occupational Safety and Health (NIOSH), flippantly calling it "junk science." The NIOSH research was part of an effort by OSHA to develop ergonomics regulations.

In opposing the OSHA regulations, Scalia did not even consider the possibility that work-related repetitive motions could cause injuries. Nor did he offer an alternative for reducing work-related ergonomics injuries. Instead, Scalia's primary concern was that the regulations would cause unnecessary economic burdens on businesses.

Bush's nomination of Eugene Scalia fits the Republican administration's pattern of anti-labor policy, from intervening in airline union negotiations to repealing OSHA ergonomics rules. And along with calling for an end to paid overtime, Bush has also ordered the Labor Department to consider overturning rules implemented under the Clinton administration that allow states to use unemployment insurance funds to provide paid family leave for parents taking care of a newborn or adopted child.

If unions are able to derail Scalia's appointment, it will be a sign of strength in the face of the Bush administration's extreme hostility towards the rights and interests of America's working people.

David Ratner, a current LRA intern, is studying labor relations at the Cornell University School of Industrial and Labor Relations.

===

AlterNet [1] / By Steven Rosenfeld [

Is Antonin Scalia the Vilest Person in Washington?

March 4, 2013 |

A day afterJustice Antonin Scalia caused gasps [3] in the Supreme Court gallery by saying the1965 Voting Rights Act had become a “racial entitlement” no congressperson could vote against, Rachel Maddow told [4] The Daily Show she was in the courtroom and Scalia clearly enjoyed tormenting people. “I think he does know how that sounds,” she said. “He’s a troll. He’s saying this for effect. He knows it’s offensive.”

There’s no shortage of badly behaving Republicans in Washington. There’s the take-or-leave-it congressional leadership, who constantly show they value rightwing ideology more than its impact on people. There are intransigent obstructionists, like the NRA’s Wayne LaPierre, who believes the answer to gun violence is more guns. But Scalia isn’t simply another Republican bully; he may be the most venal and fascist Republican of all.

It’s one thing to be a political bully and enjoy it, as Scalia does. But it’s another to say that the other branches of government are broken because they’re not doing things he agrees with; and then abuse the power of his office to overthrow that governance and perpetuate his legacy. That’s close to how European despots acted before World War II.

Let’s unpack what Scalia said about the 1965 Voting Rights Act with an eye to seeing his method, not just his madness. It is the same backstory to his mocking outbursts over the years, whether telling [5] law school students asking about Bush v. Goreto “get over it,” or arrogantly [6] answering questions put by other justices to lawyers—such as 2008'sHeller case where he coached libertarian lawyers and then wrote the opinion that for the first time in U.S. history said the Second Amendment included a personal right to a handgun at home.

Scalia has long had a visceral hatred of the democratic process. In 2000’s Bush v. Gore, which awarded the presidency to George W. Bush, he could barely contain himself in telling us there was no federal constitutional right to vote for president. He’s said the direct election of U.S. senators (the 17th Amendment) violated state sovereignty. After the Brady Bill created a national system of background checks for gun buyers, he wrote a majority opinion saying states didn’t have to participate in that system.

In all of this, Scalia boasts that he is a constitutional originalist, meaning he wants to see the law interpreted as he believes the founders intended. However, that boast falls apart when one sees that he is by far the most activist and radical of all the Court’s justices. His 2008 opinion expanding [6] Second Amendment rights is a prime example of such revisionism.

The Voting Right Act

Republicans have been targeting the federal Voting Rights Act [7] for years, because in the 16 states where it is law they cannot rig voting rules to give their party an advantage. In 2006, when Congress last reauthorized the law, not one senator voted against it. The House vote was 390-33. In 2012, there were numerous lawsuits involving the VRA, where the Justice Department intervened and won on behalf of minority voters.

The case that came before the Supreme Court last week focused on whether the law’s strongest tool—a section allowing the Justice Department or a Washington appeals court to reject changes in state voting laws—should stand. Republicans had argued that the U.S. had moved into a post-racial period in elections and Section 5 was not needed. Scalia surprised everyone by deepening that argument and essentially contending that Congress did not have the guts to vote against a law that had outgrow its usefulness.

“And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same... 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.”

Scalia’s mention of “racial entitlements” caused the stir in the gallery. He continued:

“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 reenacted in perpetuity unless—unless a court can say it does not comport with the Constitution... [T]his is not the kind of a question you can leave to Congress... Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?”

Scalia’s statements are outrageous—and dangerous—in so many ways. First, it presumes that only he, and not the Congress, knows what’s best for American democracy. Second, it substitutes his prejudices for facts. Judges are supposed to apply the law to facts and defer to legislative history and intent, not trample it. His arrogance goes beyond mere bullying. It is the temperamant of a dictator.

“That speech, even without the bile—even had it been couched in, ‘What is a judge to do?’ terms—is unimaginably injudicious,” wrote a lawyer in an e-mail to AlterNet who did not want to be named because he appears in federal court.

“Never mind that the 15th Amendment gives Congress unfettered enforcement power with no reference to equal protection—which Scalia didn't even invoke—let alone majority protection. Never mind that those parts of the country that are subject to [the Voting Right Act’s] Section 5 have kept Section 5 enforcement a thriving industry. Forget the racism. Let’s assume Scalia uses the same bathroom as [Justice Clarence] Thomas. Forget that the case fits into the Republican strategy of keeping power under a fake democracy whose elements deny it even a semblance popular support and which wants to move on. Beyond all that it’s jurisprudential evil.”

Scalia seems to be tapping the legal theory that a judge could strike down a law that’s not used and force its re-enactment—if Congress felt it were needed. In this case, however, the provisions under attack in this GOP-led suit against the VRA are very much used. If anything, one could argue that the law should apply to all 50 states. “But notice the difference,” the anonymous lawyer told AlterNet. “Section 5 is a law that is reaffirmed periodically, by increasing majorities, and it is actively and frequently enforced. So the bastard Scalia bastardizes, standing the principle on its head.”

Then, he does it again—twisting more legal reasoning to fit his prejudices. There are famous rulings where the Supreme Court has said that tougher standards should come into play if a court might invalidate a law focused on a “discrete and insular minority.” Here, Scalia said that the congressional majorities that re-enacted the VRA in 2006 was too accomodating of racial minorities. “Here, too, the bastard bastardizes… declaring that when a majority is too solicitous of such a minority—in effect is caught up in the poltical correctness—it’s time for judges to step in and be politically incorrect, and undo the mealy-mouthed politicians.”

This is dangerous stuff. This is not at the same level as the GOP’s politics of obstruction surrounding the federal debt that is now centerstage in Congress. Scalia has the power to rewrite the rules for who participates in American democracy and those decisions could last for decades—until Congress or another Supreme Court majority reverses them.

His past tirades have been extremely damaging. Scalia helped give the White House to George W. Bush by stopping Florida’s 2000 recount. He was the lead voice saying the Second Amendment gives people a right to own a handgun at home, which is where most gun violence occurs. In Citizens United,he said that corporations have the same speech rights as people in certain types of political operations. And now, he wants to unravel voting rights, based on rightwing articles he's read instead of a vast congressional record.

“Put it in the context of all the rest [that] Scalia and men like him have done,” AlterNet’s legal analyst said. “They should just drop the pretense and put on armbands.”

See more stories tagged with:

republican party [8],

justice antonin scalia [9]

Source URL: http://www.alternet.org/civil-liberties/antonin-scalia-vilest-person-washington

Links:

[1] http://www.alternet.org

[2] http://www.alternet.org/authors/steven-rosenfeld

[3] http://www.economist.com/blogs/democracyinamerica/2013/02/voting-rights-act/print

[4] http://electionlawblog.org/?p=47908

[5] http://thinkprogress.org/justice/2012/03/09/441313/scalia-rewrites-history-claims-5-4-bush-v-gore-decision-wasnt-even-close/

[6] http://www.alternet.org/civil-liberties/overview-americas-gun-and-violence-crisis-and-how-2nd-amendment-got-hijacked-nra-and?page=0%2C1

[7] http://en.wikipedia.org/wiki/Voting_Rights_Act

[8] http://www.alternet.org/tags/republican-party

[9] http://www.alternet.org/tags/justice-antonin-scalia

[10] http://www.alternet.org/%2Bnew_src%2B

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