Saturday, June 28, 2008

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.


Anonymous said...

Funny how liberals are all textualists and originalists now. The same people who could find an implicit right to abortion under substantive due process and an implicit right to gay marriage cannot find an individual right to bear arms under the 2nd Amendment's explicit terms.

And the same jokers excoriate Scalia for being not sufficiently textualist or historical, which is ironic given that the Court rejected a formal reading of history, text, and precedent in Boumediene for an amorphous functional test of habeas jurisdiction.

Stop being a hack, thanks.

Anonymous said...

Mikey, why don't you just come out and say that ALL guns should be banned by the government since we don't have local "militias" anymore? To you the 2nd Amendment is completely moot, law-abiding citizens be damned. In your liberal utopia Obama is president, abortions up to birth are available 24/7 on every block, and guns don't exist except for police and military (plus those who choose to ignore that law, but we won't worry about them).

Anonymous said...

'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.'

That's not what Scalia's opinion says at all. It does not say that there is no relation between prefatory and operative clause.

There is a relation -- just not the one you think it has.

Have you even read Heller? Or indeed, Boumediene? Or are you talking out of your arse without having read either opinion?

The fact that you claim the Great Writ has a "clear history" when the majority opinion in Boumediene claims that it ISN'T clear -- and indeed, bases its reasoning on the claim that it ISN'T clear -- says more about your lack of understanding of either case then it does Scalia.

Anonymous said...

How are ironic that you of all people would write this paragraph about another person:

"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."

Anonymous said...

Your a liberal piece of shit, Scalia was completely accurate and your a whiney loser, better yet if anybody wants to kick this losers ass he has an office on 633 W. Wisconsin, as a so called "attorney" bet it took him 5 times to pass the bar

Anonymous said...

Now, now, now...although we all detest Mikey's condescending words from time to time (ok ALL of the time), there's no need to use fighting words like that.

It's also doubtful that he's ever in his office since he's spending most of the day chasing after ambulances and being jealous of people like James T. Harris.

Mike Plaisted said...

Yes, it does take some time out of the day to "be jealous" of an untalented hack like Harris.

Hey, get the suite number in there: 1006. And, make an appointment, will ya -- I'm in court most of the day.

As for the bar exam, I went to UW and took advantage of the diploma privilege - NO bar exam! Boo-Yah!

Excellent debating points, though, Anonys. Keep trying, and you stay classy!

Anonymous said...

Mikey is a 52 year old faggot, and if any of us "conservatives" ripped on James T. Harris we would be racist. Double standard Mikey, the fact is Mikey is racist. Mikey your obvious IQ is below 80. Know the old addege, its better to keep your mouth shut, than to open it and remove all doubt of your ignorance. Your blog is an obvious cry of a sexually disturbed lonely little man

Mike Plaisted said...

I know you are but what am I? I was tempted to delete your little tantrum, Anony, but I think I'll let it stand (for now) as a good example of what happens when bad people crumble under the weight of their own inadequacies. You are losing more than your mind, my friend.

Anonymous said...

Really Mikey,

I have a wife 2 kids, 2 and 5 have a 400k house in New Berlin that is almost paid off at the ripe old age of 42. Own 2 SUV's in fact just bought a NEW one last month for the wife, don't worry about gas prices much at all! how am I "crumbling" Mikey? A rival company just offered me a 20K bonus to come work for them Most good attorneys I know, and I work with many, would never ever waste there time writing blogs, they are to busy doing something real and important like actually HELPING their clients. Be the attorney you claim to be and do the world some good instead of trying to get scumbag criminals off in court. Only a lonely little coward wastes countless hours spewing hatred and drivel almost nobody ever sees

Other Side said...

Sounds like Tim Kisting. Let us know the company that has offered you the bonus. I'm sure they'd be interested in what you have to write.

Anonymous said...

LOL, you liberals despise that "company". What have I said that isn't 100% accurate? It is what the majority of this great country believes about you whiney liberal cowards

Zach W. said...

Tim Kisting: Internet Tough Guy.

Much like alcohol is sometimes referred to as liquid courage, the internet for some folks is like digital courage.