Antonin Scalia RIP: United States of America Democracy RIP? Part Two

justice weepsYesterday I wrote about the power of five — a five judge majority on the Supreme Court deciding for us what we must do without any restrictions on it .  I explained how the doctrine of stare decisis had pretty much been abandoned when it is accepted it is the philosophy of the Court that will decide the law and not any prior precedent. I’ve noted before what I was told by a wise lawyer many years ago that: “the law is what the judges say it is.”.

I also referred to an article by Linda Hirshman suggesting that if the Republicans block Obama’s nominee he will still win in any event.  Her argument is that with the Court divided by four liberals against four conservative then any decision that results in a 4 to 4 tie means that the lower court rulings will be allowed to stand.

She goes on to note in a cavalier manner that “Most of the country, though, is governed by appeals courts dominated by Democrats.”  She accepts the fact that the courts are no longer neutral arbiter of the law and facts but have become arms of political parties and their philosophies intent on pursuing their agendas. She adds that “Two-thirds of the people in the country live in blue-court America.”

George Will pipes in and notes: “The United States today is one Supreme Court vote away from a radical truncation of the First Amendment’s protection of freedom of speech. A Democratic president in 2017 would nominate to replace Scalia someone pledged to construe the amendment as permitting Congress to regulate political campaign speech, which would put First Amendment jurisprudence on a slippery slope to regarding all speech as eligible for regulation by the administrative state.”  

In an earlier article he spoke about the Democrat candidates desire to limit free speech.   He  noted: ” government that is competent and duty-bound to . . . promote social justice is competent and duty-bound to regulate the marketplace of ideas for the same purpose.” 

Following his logic if the Court could find new rights in the 14th Amendment that never existed before it could also find that speech which interfered with those rights is not protected. Will called attention to the remarks of Justice Rogers Brown who said that “People who are eager to weaken protection of private property in order to enable government to redistribute wealth will also want to weaken constitutional protections of free speech in order to empower government to redistribute ideas.”

That is the slippery slope we are heading for. If the Court decides what the law is then it can decide that the First Amendment free speech is limited to certain approved areas.

Linda Hirshman argues that it is better for the Republicans to accept a liberal judge than for the Court to be stuck with a four to four deadlock. She writes that would be better: “than nearly a year of living with the appellate courts going wild while the cat’s away. Imagine the glee in the most-reversed circuit court in the nation, the liberal Ninth, which will now be able to tell Arizona and Alaska what to do without fear of contradiction.”

Of course her position is sheer folly for the Republicans to follow. It is better to suffer a year of our federal appellate courts imposing their own personal liberal ideas on us than twenty years of it. Hirshman ends by saying: “If Obama really cares about that legacy, nothing would establish it more firmly than using his unexpected advantage to appoint someone who will one day be as much of a hero to liberals as Scalia was to conservatives.” Like all liberals Hirshman is salivating at the idea of a “new America.”

Our country is perilously close to having a Court that reflects the view of a small minority of progressives and imposing its will on all of us. The great redoubt Scalia who stood against this has fallen. Only a Republican president can stand against the opening of the sluice gates of new rights flooding our land. Too bad there isn’t one of them in line for the nomination (as you know it most likely will be Bush) who can defeat Clinton.



20 thoughts on “Antonin Scalia RIP: United States of America Democracy RIP? Part Two

  1. Well, here is one answer:

    “MARFA, Texas (CN) – The West Texas official who was criticized for not ordering an autopsy for Supreme Court Justice Antonin Scalia, but declared him dead of natural causes without seeing the body, has explained her decision.

    Presidio County Judge Cinderela Guevara said Monday that she consulted with Scalia’s personal physician, Rear Adm. Brian P. Monahan, who told her Saturday evening that Scalia had a history of heart ailments and high blood pressure.

    County judges are allowed to declare a person dead under Texas law. Guevara said she did so because both justices of the peace were out of town and she was 65 miles away from the ranch.

    A county judge in Texas is not a judicial official, but the head of the five-member county commission. It is an elected position.”

  2. Matt:

    May be off topic, but here is what has been reported on Scalia’s death by “natural causes.”

    1. He dies with a pillow over his face, but the pillow had no feet or legs.

    2. No one knocked on his door or rang his room for 15 hours after he informed others that he was either not feeling well or tired from traveling? No one gave a damn about a SJC Chief Justice?

    3. No autopsy was done and his “blood poured down the drain.” Really?

    4. His doctor stated he had no major aliments…just minor ones.

    5. Embalmed within hours of finding him.

    Are there too many unanswered questions?

  3. Can’t agree, Matt. An already dicey political system is being further polluted with an enormous infusion of cash from super PACs and so-called 501 C organizations that aren’t even required the identify the donors. Free speech? Nah. Bribery is more like it. I’d love to see a moderate Democrat as the next Supreme Court justice. (We can all dream, can’t we?)

    1. Dan:

      Much of the Citizen’s United decision could be watered down if Congress acted to require disclosure of the people who were providing the money. The first amendment which allows the billionaires to contribute does not require their identities not be disclosed. The blame lies in Congress for the worst of the effects of that decision.

      We’d all like to see a moderate Democrat but none seem to exist.

  4. Has anyone come across the information that Scalia had a pillow over his face? No conspiracy theory, just wondering if anyone else heard anything about that?

    1. The guy who owns the ranch said that. He seemed to think that this was perfectly normal. He said that Scalia was peacefully reposing on the top of the bed with a pillow over his head. I didn’t believe a word this guy said. Nevertheless, I think it’s highly likely that Scalia died of a heart attack. I totally reject the conspiracy theories that suggest an assassin or assassins acting on President Obama’s orders somehow murdered this man. I think it’s unfortunate the family didn’t permit an autopsy, but I can understand their reasons for doing so. It’s also likely that the conspiracy theorists would simply claim that the pathologist who performed such an autopsy was also working for Obama. Sigh.

    2. Doubting:

      I didn’t see that but did see that his doctor said he had a bad heart condition and was too weak even to have a shoulder operation. Obama is on the way out and happy that day is coming. He has little concern about the Court so would not be up to wiping out a judge but given the chance as he now has he will try to put a friend onto the bench.

  5. Matt:
    Because truth is always in motion
    it is difficult to locate it with precision.
    Heisenberg had some ideas about this.

    Heisenberg’s Uncertainty Principle – How Truth Works

    This is called Heisenberg’s Uncertainty Principle. Werner Heisenberg, a German physicist, determined that our observations have an effect on the behavior of …

    Interesting case re: Massey Energy.
    A few years ago I had a chance to
    sit down and interview Judy Bonds
    who stood up to Massey energy and
    their mountain top removal for coal
    in her West Virginia community.
    This former pizza waitress was awarded
    the Goldman Enviornmental Prize.
    You can view her portrait over at

    She recently died from cancer .

    I think Matt is trying to tell us
    a liberal is someone who walks out
    of the room when a argument turns into a fight

    a conservative is a liberal who has been mugged

    1. msfreeh:

      Thanks for the information.

      The case was decided by a judge who got $3 million in exchange for a quid pro quo decision.

      I’m not that smart, but I am one of the most brilliant guys in America when it comes to knowing how much two plus two is. Even without you asking, it’s four.

      Matt’s experience has been opposite to mine in that the federal prosecutors I have dealt with have covered up egregious public corruption and criminal activity and used the federal court to do it. And, they take great pride in operating above the law because they know they are protected.

      “Clean hands” and 18 USC 4 mean nothing, when it should mean everything in mostly all cases.

      Based on my direct knowledge, there are no consequences, only rewards, for crooked prosecutors.

  6. But, what if Bernie wins?

    Hopefully, he’ll reverse the whole Republicrat/Wall Street hyper- self-enrichment program that started with the “triangulating” Clinton administration. Jailing banksters, and, hedge-fund traitors, would be an excellent start. If that means a 5-4 liberal vs conservative split of the Supremes, I’m all for it. FDR thought nothing of manipulating the Court, when, possible.
    The New Deal was a great deal for the suffering common man. My grandparents worshiped Roosevelt, as, one-day, Bernie will be worshiped by the have-not generations of today. There’s something in the wind, and, it will make the social tumult of the sixties pale in comparison. Sander’s election as president will crack the door to change. The anger of the proletariat will blow that door off it’s hinges. Who knows what could happen?
    Perhaps, in the manner of the French Revolution, change would occur in stages: at first, the French masses politely asked the ancien-regime for a share of political power. Next, they took to the streets, and, finally, after the King and nobility continued to oppose, and, subvert, the revolution, they used the guillotine to rid France of its’ “better class.”
    The USA is culturally different than France. Maybe, we can skip the guillotine, and, just send Jaime Diamond, and, his ilk, to pick potatoes for the rest of their natural lives. The Koch brothers could also contribute two pair of unwilling hands, to coax from the sand, the noble tuber. Lenin dispatched the well-heeled to Solovetsky in their evening clothes. People doing hard manual labor in tuxedos, and, formal gowns, must have been an interesting sight. A two term Sanders’ Presidency (American revolution 2.0)has the potential to produce equally satisfying visions.

    Eat the Rich.

    1. Khalid:

      Bernie cannot win. The fix is in. The super delegates are all going for Hillary.Stop dreaming like Bernie seems to be doing thinking that there is a wisp of a hope for him. Dems do not have winner take all states. Right now Clinton is over 300 delegates ahead of Bernie. She could lose the popular vote in every state, which won’t happen, and still get the nomination.

      1. superdelegates can change their mind right up until the day of the DNC, if a state votes for Bernie, but the superdelegate doesn’t, that could really hurt that superdelegate come re-election time for themselves.

      2. you need something like 2000 delegates to win, if she lost every state, she probably wouldn’t get the remaining superdelegates necessary to win.

        1. Dave:

          Perhaps true but don’t underestimate the Clintons ability for trickery. The big problem they would have with Sanders if he comes into the convention with more elected delegates than her is when they pull out their superdelegate card to deprive him of the nomination they will lose much of America’s youth and many other Sanders supporters. For them that is worrisome.

  7. Matt:

    The “wise lawyer” who told you “the law is what the judges say it is” was and is 100% correct and most attorneys who lost their case on the mythical “rule of law” know that to be true.

    Let’s be clear to your audience: If the judge doesn’t like you, or if you are poor or disconnected the “rule of like” prevails. Even worse, if the judge is operating on “self interests” there is almost no way of offering evidence because judges do not judge other judges and the Judicial Conduct Commission covers up most judicial wrongdoing, unless the SJC recommends judge discipline.

    The law, facts and evidence don’t mean a thing and most attorneys know it.

    “Gang-up” frame ups are allowed to continue under that same premise.

    If anyone understands how a case is decided they would know that the courts are generally rigged in favor of “like” status, not “law” status.

    Of course, the exception to the rule always rests with the hope of finding an honest judge who will follow the facts, the evidence and apply that evasive “rule of law”, as the case is happening, not thirty years later as in the Perrot rape frame up. Everyone knew or should have known it was a frame up.

    Shepardizing a case means that attorneys perform legal research and base their pleadings on a list of all the authorities citing a particular case, statute, or other legal authority. It means that the judge assigned to the case can select any case law citation he or she chooses, even if it is wrong. Most judges do not even read the pleadings.

    It should be emphasized that judges who study the same case law can come to opposite conclusions on the same matter. You would think that because they all read the same case law that each should then have the same decision on a matter. And it means then, the exact same case decided by one judge could be a “guilty” finding and a different judge could decide an “innocent” finding – rendering the law totally useless and again, based only on “like.”

    Thus, the only accurate conclusion a neutral/objective person can reach as to why they differ is either they are deciding using their own opinions or they are politically motivated to decide one way or the other. So that leads us to knowing that no judge is ever impartial or fair – which is what the law is all about to start with. Rather the law depends on who the judge favors.

    In state or constitutional matters it depends if the judge favors the politics involved.

    All judges should begin any case by recognizing and applying the “clean hands” doctrine. Credibility is what determines the outcome of a case and is the proper starting point. Most judges ignore this concept and “let the games begin.”

    For the most part, justice is dead on arrival if you’re broke and without an attorney and the resources to fight the duplicitous manipulations and false statements made in the court by attorney prosecutors whose only goal is to win and there are many frame ups to prove it.

    As a person with direct knowledge and years of court experience, what happens in the normal course of litigation, even at the level of the Supreme Court, involves a judge/lawyer fraternity and there is nothing anyone can do about it.

    Again, the exception to the rule is if a defendant is lucky enough to get an honest judge. However, in these days and times of “judge-shopping” and a judge/lawyer fraternity, finding a Unicorn may be easier.

    Even at the highest level, all one need do is to examine the 5-4 decisions coming out of the Supreme Court. How much confidence can America have when certain 5-4 decisions are preposterous on their face?

    Let’s look at Caperton v. A.T. Massey Coal Corp. The judge in this decision, who benefited from 3 million dollars in campaign contributions, refused to recuse himself, saying he had no personal financial stake in the outcome and then cast the deciding vote to overturn the verdict, thus ruling for his contributor, Massey Coal.

    How any reasonable person with that much education and experience would come down on the side of a judge who took 3 million bucks and call the process “making the law work more effectively” is unimaginable.

    So much for the “rule of law.”
    Sworn & Commissioned Officer, Massachusetts Trial Court (Retired)

    1. Doug:

      You make lots of good points with which I agree. Some of the failures or our judicial system are caused by it being run by humans with all our flaws. Thee are judges who lean in favor of the state and others who favor the defendants and the outcomes are different. That is what you mention when you talk about judge shopping which is done. There are judges who favor landlords and others who favor tenants and whether a person who doesn’t pay rent can be evicted will depend on that judge. There are judges who are racist or sexist or sexual preferentists and will lean in favor of the side they are on. That is something that will always exist so in that sense there will always be unfairness in the system.

      But even with these judges if they do not have a dog in the fight they are able to sometimes decide matters on the merits. I’d suggest that happens most of the time so it is best to say that we have a human system that has inherent unfairnesses but for the most part it operates on the level, that is what I like to think anyway.

      And add into that another aspect of the law is the factual aspect. In many cases this is not done by the judges but by we the people who are chosen as jurors and whose job it is to find the facts. This works fairly well but the jurors also being human bring in their own prejudices which affect their judgments. And though it is necessary for the judges to apply the law to the facts found by the jurors as we’ve seen the appellate judges always have a chance to reverse factual findings by saying that an inference made by the jury was not a permissible inference or by saying the law as given to the jury was not proper.

      As humans we live in an imperfect society with imperfect people and have to hope that with such we do our best to come out all right. There are and will always be inherent unfairness. There are top attorneys and bottom dwelling attorneys with the great majority operating at some point in the middle. A rich man can have the top attorneys (as we’ve seen with Epstein) who have the skill and connections to twist the law, facts and punishment in his favor; a poor woman can have none of that and has to go on either on her own or perhaps even with an attorney who has no interest in her matter. This will always exist since the rich will always have the best; the others less so.

      As for you prior post about prosecutors, I said I was only speaking from my present experience on the state side where no one gained anything from doing good or ill so it was not in the interest not to do good. We’ve seen that on federal prosecutors apparently operates differently as we have seen in Boston in the Whitey Bulger case. (I’d point out the Boston federal prosecutors who I have known were absolutely on the level and had no agendas). This case had become for him a crusade which he still continues. So I can’t totally reject your suggestion that there are prosecutors who do not seek justice but some form of retribution.

      As to Shepardizing, the idea behind that is to find out what past courts have said about an issue. When you do that you not only look at the majority opinion but the dissent. You try to find in those cases language that supports the issue you are arguing or in the case of judges the findings they believe are proper.

      Good comment with much food for thought.

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