Sunday, June 28, 2015


It's no longer a case of assuming
What sends Scalia fuming
His mind gets unfettered
When others write better
His reputation entombing.

By Dominique Paul Noth
Final part of Kennedy's remarkable same sex marriage decision

The week of  June 22 was the worst of Antonin Scalia’s reputation on the US Supreme Court. He went  ballistic on the losing side of both Obamacare and same sex marriage.

The longest ensconced justice (President Reagan, 1986) -- self-proclaimed as the outstanding wordsmith of the right (Ruth Bader Ginsburg is generally so acknowledged on the left), famous for assigned decisions and caustic dissents laced with erudite  flights of fancy and  abrasive superiority -- Scalia has been tolerated and even taught in law schools for a gift of language and an insistence on textual interpretation.

Basically here’s his concept of originalism involving the laws and the Constitution -- they only say what they mean according to Scalia.  It is a sometimes laughable theory that underneath promotes legal attention to textual purpose -- extremely confrontational but lively fodder for debate.

Yet of late his excursions into musing pompous language and offhand  insults have come a  major cropper – tending to make the pinhead side of conservatism even more litigious  and sending even Federalist Society lawyers scurrying from knee-jerk Scaliastic acceptance.

Moreover, reason-based conservatives on the court have been writing rings around him by focusing on balancing values within the laws -- even turning his own interpretations against him.

Only Scalia and Ginsburg have earned operatic stature for their personalities and phraseology. But as her reputation for insight ascends, Falstaff has descended to buffoon arias of rage. 

Recently, comity thrown to the winds,  his invective was aimed at that Reagan White House  pup John Roberts (sure he’s 60 but Scalia is 79 and thought he had a new acolyte) who   regularly fails to succumb in deference to his elder (who wanted that chief justice job 10 years ago). 

Now Roberts is certainly no progressive’s ideal of  a justice. He’s hardly  free from obeisance to  the wealthy right or entrenched Babbittry. But in the case of the Affordable Care Act that might have actually helped. It was not just Obama backers but  the business community that saw financial calamity in undoing ACA despite some 56 times the House GOP voted to repeal it.  Wall Street needed a pragmatic jurist reaching logically beyond flame-thrower politics.
Roberts upholds Obamacare  and
again draws Scalia's wrath.

Roberts’  first decision in 2012 upheld the legislative legality of ACA as a taxing initiative. Then his second this June 25  wrote the clincher opinion that puts ACA beyond reasonable reach of congressional enemies.  As pundit Andy Borowitz laughingly pointed out in The New Yorker, Roberts’ opinion has forced  Reince Preibus and the GOP to search for a new anti-Obama myth to attack. 

Actually it wasn’t even close, 6-3, since Roberts was joined by the other remaining Reagan justice, Anthony Kennedy (1988), long regarded as a swing vote but ideologically more attuned with Scalia. In the first ACA case, he and Scalia were on the same side of the  constitutional  issue,  but last week they parted ways because it was an interpretation of the intent of the statute, and normally the conclusion was so inevitable it would be a petty waste of the court’s time to even take it up. Except ACA opponents anticipated that Scalia’s fondness for textual sleight of hand might bring other conservatives around.

But sometimes the justices agree to take a Hail Mary pass in order to permanently spike it. Kennedy joined Roberts in going to  the heart of the case, ignoring the Scalia attempt to isolate four words (“established by the State”) from the overriding language that the federal government had on a cabinet level authorized  “such Exchanges” including subsidies. In fact, Scalia’s selective lifting could only carry along Sam Alito and Clarence Thomas.

Roberts is a sturdy opinion writer but there was something more powerful than routine scholarship in his quotations from past decisions (“We cannot interpret federal statutes to negate their own stated purposes”) and in his straight to the point summation: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.” 

But he couldn’t resist an ironic slam at Scalia’s dissent in the first ACA case that admitted  “without federal subsides the Exchanges cannot operate as Congress intended,” confirming even Scalia really knew what Congress wanted. 

In dissent Scalia was forced to "wholeheartedly agree with the Court that sound interpretation requires paying attention to the whole law, not honing in on isolated words or even isolated sections."  But falsely hone in he did and went linguistically childish because Roberts was using workmanlike accuracy to show him up. 

He demeaned Roberts’  reasoning with a disconnected fruity harrumph ("Pure applesauce”) and turned to old Scottish insults ("jiggery-pokery") that didn’t address diddly.  Prof. Ed Fallone in a  Marquette University blog has more brilliantly than any layman could explained how sound Roberts’ reasoning was and truer to the “ancient principle of statutory interpretation”  that Scalia keeps pretending to defend.

With a fetish for verbal diarrhea
That angry old justice Scalia
His colleagues to harm ‘em
Became P.T. Barnum
With hokum of hoary Anglophilia

Scalia’s manner became even more unhinged and personal the next day (June 26) when Scotus 5-4 declared a constitutional right to same sex marriage in the secular realm.

The main opinion came from Kennedy, who has shown previous sensitivity to homosexual freedom from government persecution. In 1996 he struck down a Colorado state amendment that classified  homosexuals “not to further a proper legislative end but to make them unequal to everyone else.” In 2003 he invalidated an anti-sodomy law that “involves liberty of the person.” In 2013 in a landmark case his opinion struck down key components of DOMA (Defense of Marriage Act) and likely opened the door to gay advocates looking at the  hundreds of state regulations denying gays what one man one woman marriages were allowed.
Kennedy's eloquence comes
under attack

But even these advocates, I suspect, didn’t anticipate the reach,  breadth and power of Kennedy’s articulate validation. Calling marriage the “keystone of our social order,” he insisted that  "no longer may this liberty be denied" the homosexual community, as it was long denied interracial couples. He actually elevated the importance of marriage for all.

In this case, Roberts was on the other side, acknowledging the social value of gay couples (“Many will rejoice in this decision and I begrudge none of their celebration”) and suggesting that they might win his support as a legislator. But he insisted it was too sweeping a decision (reducing his brethren to “five lawyers” not jurists in his ire) and was  defying judicial caution and the lengthy traditions of only opposite sex marriage, even citing the values of the Kalahari Bushmen, the Carthaginians and the Aztecs to support his notion.

(That comment brought a swift response in Slate June 27  from a respected judge on the federal 7th District Court of Appeals who has been considered for the highest court, Richard A. Posner. Calling Roberts dissent “heartless”  Posner described the long history of social persecution suffered by the gay community and poked fun at Roberts’ example.  “Most of us are not convinced that what’s good enough for the Bushmen, the Carthaginians, and the Aztecs should be good enough for us. Ah, the millennia! Ah, the wisdom of ages! How arrogant it would be to think we knew more than the Aztecs — we who don’t even know how to cut a person’s heart out of his chest while he's still alive, a maneuver they were experts at.”)

Even Roberts had to acknowledge that “injustices” such as civil rights are often not recognized in their  own time. But he still fulminated about a major disruption in the social order by letting the court lead the people. One can imagine how such private contrary discussions on the court  invigorated Kennedy’s language throughout, thusly:

“Without the recognition, stability and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.”

In this era of economic, family and social pressure, the polls suggest nearly 43% of opposite sex couples are living together or  raising children without benefit of marriage, so soured have they become on the institution.  Seen in that light, Kennedy has done more to magnify the importance and special legal protections of marriage for all Americans.

That was missed by Scalia in a dissent so unbridled that  Roberts pointedly refused to sign aboard though he was on the same side.

Angered by Kennedy's eloquence
In poetic gay marriage defense
What emanates from Scalia
Is fury akin to Sharia
Ego offended by his own irrelevance.

Scalia railed at what he sarcastically saw as the majority’s presumption: “These justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry.”  Strange language given Scotus’ central role in settling issues brought before the court. Stranger still that it was not true unless talking about Christian countries.  It made it easy to interpret his tirade as more religious in nature than based on understanding of human rights  and the pain of denial, which clearly is what moved the majority to action.

Even religious and conservative leaders thought Kennedy rose to such memorable language  out of compassion and belief  in the power of the law to correct error. Not Scalia.
“The opinion is couched in a style that is as pretentious as its content is egotistic,” Scalia wrote of his Reagan colleague’s work, not thinking for a moment of how pretentious and egotistic much of his own writing sounds. “The opinion’s showy profundities are often profoundly incoherent.”
If there was any doubt that Scalia has strayed from
jurisprudence, dissents prove it.

Scalia seems upset by Kennedy’s phrase-making to the point that he “would hide my head in a bag” rather than write such stuff and even seemed to accuse Kennedy of being bought or catering to public opinion. What struck others as florid elegance became to Scalia a signal that the court “has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

It is a valuable sidebar to point out that chief justice Marshall (1801-1835) solidified acceptance of the court as the independent branch by pushing the politics of the times and conservative Story (1811-1845) didn’t just expand the property rights of rich white men he also vehemently opposed the slave trade. Part of their “disciplined reasoning” was stretching the norms of  society.

Scalia’s attacks on his colleagues for seeing the rights issue differently  reminded several devout federalists of the warnings of a Founding Father, Georgia educator Abraham Baldwin, who actually didn’t want the US Constitution to name the rights reserved to governments, arguing that "If we enumerate specific rights, then some fool in the future will argue that people are entitled only to those rights and no others."  

Scalia sure sounded like that fuming fool in his dissent especially when he suggested that the court should not defend anything other than rights regarded as “fundamental by every person alive at the time of ratification”  of the Constitution.  He also insisted that gay marriage eroded the rights of the non-beatniks (“One would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie.”) and derided the majority justices for where they came from and where they go to church (six are actually Catholics). 

Incoherently this was his own  brand of  activism disguised as originalism, even insisting that it ought to take super-legislative action to change the civil definition of marriage, ignoring the expanded role government today plays in marriage rights.

Yet as nasty as many view his dissent, it was less brutal and close-minded than what sprang from Thomas. He suggested the damage done by the government to the LBGTs  who want to marry was grossly exaggerated. “All people have dignity,” he began, stating the obvious. “Human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.”

The view that government has no role in advancing human dignity is hard to swallow on any side.  But at least another dissenter, Alito, focused on a more frequent if ridiculous worry -- that religions that resist same sex marriages will be mocked into agreement.  The secular decision  “will be used to vilify Americans who are unwilling to assent to the new orthodoxy,” Alito wrote. “In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent” – in other words intimidating churchgoers to give in.

Alito’s fear implies the religious will react violently or are easily swayed in their convictions. He suffers from horrible timing.  If nothing else on a different issue of terrorist massacre, the religious in Charleston have just demonstrated extraordinary charity, tolerance and forgiveness of a racist while peacefully insisting on their rights.

That is the analogy most people will see, not Alito's scare tactics. No wonder Kennedy believes we are mature enough.  Maturity vs. appeals to fear are becoming a determinative factor in American progress.  

The ruling reaffirms the freedom of religion, the value of marriage  and tells the government to keep its nose out of what couples can enjoy full legal recognition of marriage.

Scalia’s colleagues still rely on his First Amendment passion, particularly on issues he has long felt strongly about, such as the ambiguity in California law that sentences the convicted to longer terms than needed. So he was chosen to write that 7-1 opinion issued June 26 (California vs. Johnson). 

But it was a bone after the  enormous double whammy that left him pushing words around too loosely and way off target, insulting colleagues on the right even more than the left.

No wonder his  reputation for ferocity no longer scares people or carries that old ideological weight.

Once praised as a master word hustler
Scalia is commonly outmuscled 
He’s been left in a lather
And reduced to blather
Not once but twice out rustled 

With all apologies to Edward Lear

About the author: Noth has been  a professional journalist since the 1960s, first as national, international and local news copy editor at The Milwaukee Journal, then as an editor for its original Green Sheet, also  for almost two decades the paper’s film and drama critic. He also created its Friday Weekend section and ran Sunday TV Screen magazine and Lively Arts as he became the newspaper’s senior feature editor. He was tapped by the publishers of the combining Milwaukee Journal Sentinel for special projects and as first online news producer before voluntarily departing in the mid-1990s to run online news seminars and write on public affairs and Internet and consumer news. From 2002 to 2013 he ran the Milwaukee Labor Press as editor. It served as the Midwest’s largest home-delivered labor newspaper, with archives at  In that role he won top awards yearly until the paper stopped publishing in 2013. His investigative pieces and extensive commentaries are now published by several news outlets as well as his culture and politics outlets known as Dom's Domain.  He also reviews theater for

No comments:

Post a Comment