Justice Scalia: Whatever Works

The last month of the Supreme Court term presented the Court’s right-wing prima donna, Antonin Scalia, with two primary opportunities to show us all how smart he is and how stupid you are. Condescension, rather than logic or historical accuracy, is his primary method of "persuasion" – if that’s what you call being hit over the head with his self-proclaimed superior intellect.

Scalia’s primary gift to the Republican political agenda came on the last day of the term with his 5-4 majority opinion in D.C. v. Heller, in which he not only twists and ignores but actually re-drafts the text of the Second Amendment to suit the purposes of the NRA. Unable to explain his conclusion that the right to "keep and bear arms" is an individual rather than a collective right, despite the actual state-militia-facilitating language of the amendment, the Great One (oh, yes he is -- just ask him) simply substitutes his own language for the actual text of the amendment. "The Amendment could be rephrased, ‘Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed,’" he writes. Fine, except that’s not what it says and his job is to interpret the actual language, not a convenient paraphrase. Likewise, later on, Scalia suddenly blurts out that "the phrase ‘security of a free state’ meant ‘security of a free polity,’ not security of each of the several States". Well, if you say so, Mr. Justice.

This new judicial device of re-imagining the language you are interpreting certainly opens the door for more creative decisions in the future, does it not? Heck, let’s rephrase the whole damn Constitution, why don’t we, like some new translation of the Bible (Thou shalt not kill, except for the government, with due process protections...or not). Maybe this explains the decision in Bush v. Gore – Article 2, Sec. 1: "The Person having the greatest Number of [Electoral] Votes shall be the President" except when we stop the counting of votes in any given State in order to reach a desired result. See, isn’t that easier?

Scalia also leaps into comparison with the absurd. ‘The Second Amendment would be nonsensical if it read, ‘A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.’" Well...duh. But doesn’t that example show that the Founders meant something when they attached the militia phrase to the arms phrase? Oh, boy, are you stupid for asking, says Scalia. The militia phrase, you see, is "a prefatory statement of purpose". Such a "prefatory" phrase can "resolve an ambiguity in the operative clause" but "does not limit or expand the scope of the operative clause." Well, which is it? Does not "resolving an ambiguity" necessarily "limit or expand the scope" of the now-unambiguous language? To, Scalia, this is silly-talk. "It [the prefatory clause] fits perfectly [with his conclusion], once one knows the history that the founding generation knew and that we have described above." Oh, if only you were as smart as he was.

Scalia also can’t be bothered with the drafting history of the amendment. After summarily casting the only other Second Amendment case (U.S. v. Miller, 1939) aside because it did not review enough history of the amendment, he criticizes the dissenters for doing just that. "It is dubious to rely on such history to interpret a text that was widely understood to codify a pre-existing right, rather than to fashion a new one," he writes. Again, says him. His claim that an individual right to keep arms was "pre-existing" comes after a selective review of history in England and, besides, who says such a review of history is "dubious" just for that reason?

But, this wasn’t the first time this month that Mr. Originalist was beat over the head with the fact that history was not on his side. In the most historically significant decision of the term – the habeas corpus case, Boumediene v. Bush – Scalia waxed hysterical that the majority would let something like the history of the Great Writ and the unambiguous language of the Constitution get in the way of the whims of the president he helped appoint. In a dissent bathed in the warm, soapy water of his own failed argument, he can’t believe that five of his brethren and sistren would dare to deny the Bush administration their royal prerogative to lock up whoever they want based on whatever they say. Stewing in his own juices and drowning in his beer, Justice "Get Over It" just can’t, complaining about "the disastrous consequences of what the Court has done today", while ignoring the far worse legal and international disaster that would have occurred if the razor-thin majority had gone the other way.

Hundreds of thousands more people have been killed and injured by handguns than anything done or imagined by the cab drivers and bystanders who make up the majority of those locked in our scandalous Guantanamo limbo for lo these many years. Yet Scalia was willing to overlook the clear language of the essential Constitutional protection that allows anyone held by the government to challenge their detention in court to protect against the imaginary hordes, finding the Great Writ just too damn 9/10. He refuses to make the same emotional accommodation for the once and future victims of handgun violence, finding the desperate efforts of big-city politicians to be "policy choices" that are to taken "off the table" by stern Constitutional dictates that only he can see.

If such a tortured history-defying, precedent-ignoring, amendment-redrafting opinion as Heller had been written by someone on the other side of the Court’s Great Divide about some issue near and dear to their black hearts, the hounds of the wing-nut echo-chamber would be howling about "legislating from the bench" and other such false concepts of judicial overreach. But, what both these cases show is not so much legislating (the paraphrasing of language notwithstanding) as it does strained contortions to make the square peg of a desired result fit the round hole of the law. Scalia and his three slightly less-egotistical brethren in the Court’s remarkably monolithic hard-right block are willing to stretch and twist to get where they think they need to go. If they need to say that "the right to keep and bear arms" is unrelated to the "well-regulated militia" identified as the right’s purpose in the same sentence, they’ll do it with a straight face. If they need to ignore the requirements of the Great Writ – a far clearer and historically-based right – they’ll do that, too.

All four of them are there for a reason. If you don’t know what it is, you haven’t been paying attention.