Antonin Scalia RIP: United States of America’s Democracy RIP? Part One

justice weepsThe power of the five — that is what we will soon face. With the death of Justice Scalia the United States Supreme Court will never be the same if he is replaced by a Democrat presidential nomination. To get a sense of this read the article by Linda Hirshman entitled: “If Republicans block an Obama nominee to the Supreme Court, he wins anyway.”

I’ll let her explain: “the Supreme Court is now evenly divided between four liberal justices and four conservatives, even with Anthony Kennedy’s occasional swings”

Stop a second and consider that. What does it tell you about the law? Think hard! You got it?  Let me digress a second so you’ll have a better understanding of her statement which she tosses off without a second thought, as does most of America.

When I was in law school many years ago we were taught basic law with none of the foolish electives that have been available over the past thirty years up today. We were taught that an essential part of the law was the doctrine of stare decisis which is Latin for “to stand by things decided.” That pretty much means when an issue has been previously brought to the court and a ruling already issued the courts will follow to the previous ruling.

Hirshman’s statement about the liberal/conservative  split on the present court tells us that there really is no stare decisis. If the court is conservative it will decide a case one way; if liberal it will decide it another way. Tragically, our Supreme Court has become and adjunct of our political parties and no longer a faithful interpreter of the law. The judges decided cases not on prior cases but on their philosophies.

Maybe it has always been that way. I’m not a scholar of the Supreme Court so I cannot answer the question. But one thing for certain, it has never been so patently obvious that the Supreme Court is serving as an arm of our political parties.

What we have learned recently is that it has the ability to conjure up Constitutional rights through the use of the Fourteenth Amendment that no one knew existed at any prior time in our history. Justice Samuel Alito in the Obergefell decided within the last year said: “If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate.” 

The late Justice Scalia said of the majority decision in the same case: “This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. . . . A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy. . . .  [These five judges believe they]  are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.”

But Scalia was wrong when he said in that decision: “The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.”

I suggest it is the most dangerous branch for precisely the reason that Justice Alito suggested namely that: “a bare majority of Justices can invent a new right and impose that right on the rest of the country, . . . “   We have seen the heavy hand of the executive arm in action when it imprisoned a court clerk who refused to follow the Court’s decision.

Sadly Scalia was also wrong when he said: “With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.” 

I suggest the people are impotent in the face of Supreme Court decisions. With the vast power of the federal government standing by willing and able to enforce the Court’s whims and to intrude into areas rightfully left to the people we have no recourse. Who can stand up to the mighty federal forces that now exist?

The Supreme Court is on the brink of stealing our democratic rights.

19 thoughts on “Antonin Scalia RIP: United States of America’s Democracy RIP? Part One

  1. Can you change the typo in the last line, Matt? I assume you meant “the brink of stealing “. It’s such a great post.

  2. What is Judge Lance Ito doing these days? He could fill the soon-to-be obligatory ‘Asian slot’. We’ve enough Jews and A-A reps on the SCOTUS as it is now.

    1. Henry:

      Six Catholics and three Jews on the U.S. Supreme Court. Pretty remarkable I have to say although we are now down to five Catholics which leaves a seat open. The Jews all vote as a block. The Catholics have a couple who abandon the tribe. I’d have to guess that the next judge will either be a Jew – to give them a more even representation with the Catholics (5 to 4) or a non believer who have not had a seat on the Court in years. The Protestants have been totally ignored even though they have held probably 90% of the seats since its creation.

      1. Matt,
        You are looking through a pretty narrow lens, there.
        Who cares what religion Justices are?
        Catholic Church’s reputation is SHOT, anyway. (-former parochial school and parish member)
        I only care that the next Justice is a red-blooded American patriot and defender of the Constitution.

        R.N.

        1. Rather:

          I think it is important to have a diversity of beliefs on the Court that decides the future of America. Religion is one aspect in the make up of a person and the person’s experience in life. Many are guided by their religious beliefs in forming opinions. Many find comfort in the company of co-relionists with whom they may spend much of their time off of the bench.

          As a Catholic I know within that religion the beliefs of people are as diverse as those of the rest of the nation. There are flaming liberals and hardened conservatives with the great majority like loosely-tied cargo on a ship in a stormy sea going from one side of the middle to the other. But there are many in the country who don’t look at Catholics, or Papists as they refer to them, as some sort of threatening force. These latter are not comfortable with the situation of six Catholics on the Supreme Court where it does not bother me.

          The Supreme Court should reflect the best from all of the country and not just from minority religions. We are all influenced by the beliefs we were taught as youngsters or those which we now hold. I do think religion is important as one consideration in the make-up of the Court.

          I would say that is important that this be so in order that the people would respect its decisions. I no longer think that the respect matters. Our system has revolved to the point where that Court has become the major power in the nation. Unlike the days of Andrew Jackson its decrees are backed by the executive army. So you have to consider how vibrant of a democracy we have when five unelected and appointed for life lawyers can decide what the nation must do.

  3. Justice Learned Hand on judicial interpretation:

    “On the one hand he (the judge)must not enforce whatever he thinks best; he must leave that to the common will expressed by the government. On the other, he must try as best he can to put into concrete form what that will is, not by slavishly following the words, but by trying honestly to say what was the underlying purpose expressed.”

    Matt: Would Hand have thought Scalia a great legal scholar, or, a black-robed political hack?
    .

    1. Khalid:

      I’d suggest Hand and Scalia were running on the same track. The four liberals on the court are interpreting the law to what they believe is best for the people.

  4. Matt: The left wing has politicized the judiciary (ex: abortion on demand, same-sex marriage, affirmative action, separation of powers, executive overreach, religious expressions (banning displays of creches, prayers in schools and, at football games, for examples), hostility to religion (rather than neutrality) e.g. potentially persecuting nuns who won’t pay for abortofacients; death penalty issues, etc, etc, etc. At the state level always remember the corrupt judiciary in Massachusetts and the dozen or more liberal Massachusetts judges who gave us and the abomination of the St. Pat’s Parade case. So, too, in Mass federal courts, liberal judges refuse to throw out the case against John Connolly when the testimony of Frank Salemme, a key witness, which clearly poisoned the minds of the jury, was proven to be perjurious. Also look at the foolish federal judge who told us “patronage” was not a crime but then convicted probation officers for engaging in patronage. Then consider the judges who stand by and condone Wyshak and his cohorts inventing crimes and persecuting innocents (Probation officers, Carswell Motel, the Schwartz student threatened with 50 years imprisonment who then committed suicide; Catherine Greig, etc, etc.) Scalia was the best jurist ever; a brilliant mind, a brilliant writer; he respected the constitution and recognized restraints on the courts and on prosecutors.

    1. Bill:

      True. I thought of the St. Patrick’s case when writing about Scalia and have to believe that had any of he four progressive judges that now sit on the court been sitting back then you would not have won a 9 – 0 decision. Some of them would have followed the rationale of the Massachusetts judges to find that people with motives that are suspect are not entitled to First Amendment freedoms.

  5. Matt, you misconstrue Scalia. When he said, “we are reminded of our impotence” he was referring to We the People, the Congress, the State Legislatures, being “impotent” in the face of an imperious Imperial Court. He sees the Court increasingly stealing power from the people. Rule by Nine. Or more often, Rule by Five. The people becoming impotent! The Court becoming all powerful! Scalia has long favored judicial restraint. The liberals use the courts to promote political agendas, to decide political questions, which historically have been left to legislatures, to the People. He’s long excoriated the court for exercising powers it doesn’t have. Your quote about “impotence” is from his gay-marriage dissent. Here’s some more quotes from that same dissent that makes Scalia’s position crystal clear:
    1. “I write separately to call attention to this Court’s threat to American democracy.”
    2. “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.
    3. “This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”
    4. “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
    5. “This is a naked judicial claim to legislative—indeed, super-legislative—power;
    6. “The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.”
    7. “The public debate over same-sex marriage must be allowed to continue. But the Court ends this debate, in an opinion lacking even a thin veneer of law.”
    8. “[T]o allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”
    9. “[W]hat really astounds is the hubris reflected in today’s judicial Putsch.”
    Scalia rightfully sees today’s judiciary as overthrowing democracy, as overthrowing government as the Framers intended it. For decades, Scalia has warned us about the imperial judiciary and its usurpation of powers. For decades, Scalia has urged the judiciary to recognize its limited purpose as the least powerful, least intrusive branch of government, as it was originally intended to be.
    thanks to JPC for agreeing.

    1. Bill:

      Scalia wrote: ‘With each decision of ours that takes from the People a question properly left to them— with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court — we move one step closer to being reminded of our impotence.”

      When he uses ours to describe their decisions which is followed by the “we” followed by “our” then it seems to me he is speaking of the court. He refers to the people as them. Had he wanted to suggest the people were becoming impotent he would have said “they” or “the people.”

      That would be consistent with his earlier statement that the judiciary is the least dangerous branch. I suggest he is saying that at some point the people are just going to ignore the Court but as I noted the huge federal government will make sure that they don’t.

  6. Matt:

    Reversing Rotten Supreme Court Decisions: A Choice of Two Solutions
    Thursday, 14 February 2013 12:37
    By Donald G. Schweitzer,
    “The tension between what he said at his confirmation hearing and what he is doing as a justice is a blow to Roberts’s reputation for candor and a further debasement of the already debased currency of the testimony of nominees at judicial confirmation hearings.” [Conservative icon Judge Richard A. Posner, “How Judges Think,” Harvard University Press.]
    The multitude of advocates for the Repeal Amendment of Citizens United are in fact,faced with a choice of two paths:
    relying on 2/3 of a corrupt Congress and ¾ of equally corrupt State legislatures to amend the Constitution – or
    waiting for a change in one of the most corrupt Supreme Courts in our history, and hoping that a new Court will hear a case that will induce it to overturn a decision that80% of Americans disagree with. Although both remedies seem immediately improbable, evidence indicates the latter is more likely to succeed in time.
    The ongoing nation-wide movement to revoke Citizens United by amending the Constitution is typified by messages such as,
    “This decision overturned a century of

    http://www.theguardian.com/us-news/2016/feb/15/hookers-for-hillary-clinton-nevada-caucuses-bernie-sanders-moonlite-bunny-ranch

  7. Please, Scalia was an textualist only when it conformed with his worldview. He had no problem overturning parts of the McCain-Feingold Act in the Citizens United decision, wasn’t that decision a bit of judicial activism that benefited corporations? I also don’t find any part of the Constitution which defines We the People to include corporations.

    The same goes for the McDonald v. Chicago and Heller v. DC decisions which incorporated the 2nd Amendment through the Due Process clause of the 14th 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.” The court’s landmark 5 to 4 decision in Heller split along ideological grounds and wiped away years of lower court decisions that had held that the intent of the amendment, ratified more than 200 years ago, was to tie the right of gun possession to militia service.

    He was more than willing to overturn the ACA, despite it being a duly enacted piece of legislation by the People. More judicial activism on the side of Scalia.

    Also he attempted to ignore the 14th altogether in is scathing dissent in Oberfell, and ignored SCOTUS precedent in Loving v. Virginia, when he argued there was no Constitutional basis to protect gays from discriminatory marriage statutes.

    He used textualism as an easy way to hide behind his political beliefs, and invoked it only when it suited him. The idea that the Constitution was meant to be interpreted literally in the 21st Century is about as smart of a theory as the argument that the Bible should be interpreted literally in the 21st Century. Pretty scary stuff if you ask me.

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