Nel's New Day

February 20, 2016

‘Justice Scalia,’ an Oxymoron

Filed under: Judiciary — trp2011 @ 1:43 PM
Tags: ,

Stock in aluminum foil must have gone up last week with its use by the tin-hat conspiracy people after the death of Antonin Scalia last week. One example of craziness is that God killed Scalia to elect Ted Cruz for president. Rick Wiles has used numerology to prove that President Obama killed Scalia. According to Wiles, “The 13th was the 44th day of 2016. Obama is the 44th president of the United States.” Wiles concluded that Washington officials are terrified:

“Deep down they know, the regime murdered a justice … This is the way a dictatorial, fascist, police state regime takes control of a nation.”

Scalia left a 30-year trail of decisions destructive to democracy and equal justice while pretending to be an “originalist” who channeled the minds of the Founding Fathers in determining exactly what they intended in the Constitution. Using ridicule mixed with exaggerated legalese, he was declaimed as “brilliant,” but he actually followed the “textual” approach to support his personal conservative ideology.

In 2009, Scalia declared that nothing in the Constitution “forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” Scalia’s last act was to use “textualism” to put Gustavo Garcia to death in Texas. Executing intellectually disabled people was also just fine with Scalia, demonstrated by his dissent in Atkins v. Virginia (2002). His rationale is that juries continue to sentence mentally disabled people to death. Scalia ignored the Constitution’s Eighth Amendment prohibiting  the imposition of “cruel and unusual punishment.”

In 2005, Scalia upheld an Indiana law barring the vote to people without photo IDs. The GOP excuse for these laws throughout the nation is supposedly the prevention of voter fraud, but in the former century Indiana had not found one case of one voter illegally impersonating another. Throughout the nation, approximately seven percent of possible voters lack the ID—most of them people of color, elderly, students, and poor whites. Getting an ID in Indiana was also onerous: the average poor person in the state lived an average of 17 miles from a county seat. Scalia said, “Seventeen miles is 17 miles for the rich and the poor.”

In 2013, Scalia was part of the voting block of five who overturned the Voting Rights Act. He attributed the law, originally passed in 1965 and clarified in 1970, 1975, 1982, 1992, and 2006, to “a phenomenon that is called perpetuation of racial entitlement…. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes…. And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution…..” The only “original” part of the Constitution used by Scalia is the racist views of the 18th-century Constitution; Scalia ignored later amendments enfranchising all people in the U.S. including women and people of color.

North-Carolina-12-300x232The decision to overturn the Voting Rights Act has recently exploded in North Carolina, forced to postpone its congressional district elections for almost three months because the state Supreme Court requires redrawing the gerrymandered congressional districts. (An example at the right is North Carolina’s 12th Congressional District.) Although required to redraw the lines of some districts, the GOP legislature redrew every district line to maintain a 10-3 Republican majority in the House. In its first major action since Scalia’s death, the U.S. Supreme Court declined to address the state court’s decision; Scalia would probably have led SCOTUS to hear the case.

Republicans in North Carolina freely admit that the purpose of redrawing the map was to send Republicans to the U.S. House. GOP state Rep. David Lewis said, “I think electing Republicans is better than electing Democrats.” Lewis added, “I acknowledge freely that this would be a political gerrymander which is not against the law.” A 2004 Supreme Court does permit political gerrymandering.

Another area in which Scalia led the Supreme Court was gun ownership, especially when he wrote the 5-4 majority decision in District of Columbia v Heller (2008), striking down a handgun ban. This case shifted the court’s position from protecting gun ownership connected to belonging to a state militia to maintaining that the Constitution allows people to possess as many guns as they want. Although Heller didn’t address restrictions of state and local governments, McDonald v. City of Chicago (2010) ruled that the Second Amendment applies to individual states. Recently, the high court has avoided cases regarding the Second Amendment, but the court, however, might hear an appeal to the Second Circuit Court of Appeals upholding assault weapon bans in New York and Connecticut.

Scalia holds the worst record for Supreme Court justices in recent decades on women’s issues. He wanted to overturn Roe v. Wade and always voted anti-choice. He declared that a corporation could be religious in the Hobby Lobby decision denying contraception coverage to women by “religious” corporations. He was the sole dissenter in a case allowing women to attend the Virginia Military Academy. He voted against equal pay in Lilly Ledbetter’s case of sex discrimination.

According to Scalia, “ladies” are not protected by the Constitution. The Equal Protection Clause of the 14th Amendment requires each state to provide equal protection under the law to all people within its jurisdiction. To Scalia, that clause is for racial but not gender discrimination. In a 2011 interview, Scalia said:

“Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.”

Another decision against women came from Dukes v. Wal-Mart Stores, Inc., with a 5-4 decision reversing a district court’s decision to certify a class action lawsuit from 1.6 million female Wal-Mart employees claiming gender discrimination. The court rejected a class lawsuit with the justification that the plaintiffs lacked enough in common to constitute a class.

Scalia didn’t even want women on the Supreme Court, as Sandra Day O’Connor can testify. Although O’Connor was confirmed for the Supreme Court in 1981, a woman’s restroom wasn’t added to the justices’ robing room until 1993 when Ruth Bader Ginsburg. In general, Scalia described O’Connor’s reasoning as “irrational,” and not to “be taken seriously.” In Planned Parenthood v. Casey (1992), a case that confirmed Roe v. Wade, O’Connor voiced the “undue burden” test for abortion regulations that caused the court to oppose Scalia. He charged that this test was “unprincipled” and “will prove hopelessly unworkable in practice.” His dissent denounced O’Connor and the others in the majority for their “almost czarist arrogance.”

Blacks are better off in slower schools, according to Scalia. During oral arguments in Fisher v. University of Texas at Austin, Scalia said:

“There are those who contend that it does not benefit African Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well.”

Scalia will have nothing more to say about this affirmative action case. Argued on December 9, 2015, the case will most likely be decided by the remaining eight justices.

Much of Scalia’s vitriol was directed toward LGBT people:

Homosexuality like murder: Scalia sympathized for Colorado residents who wanted to protect themselves from gay sex like they would from murder but lost that protection when Romer v. Evans (1993) overturned a Colorado amendment allowed anti-gay discrimination. Scalia didn’t think that animosity toward homosexuality was a valid argument because he “had thought that one could consider certain conduct reprehensible–murder, for example, or polygamy, or cruelty to animals–and could exhibit even ‘animus’ toward such conduct.”

Homosexuality like incest: After the Supreme Court struck down a Texas ban on sodomy in Lawrence v. Texas (2003), Scalia wrote, “States continue to prosecute all sorts of crimes by adults ‘in matters pertaining to sex’: prostitution, adult incest, adultery, obscenity, and child pornography.” He argued gay sex should be criminalized because of moral objections to homosexuality.

Homosexuality like flagpole sitting: Scalia’s analogy in Lawrence v. Texas: “Suppose that all the states had laws against flagpole sitting at one time [which they then overturned].Does that make flagpole sitting a fundamental right?”

Marriage equality nothing more than “fortune cookie justice”:  In response to legalized same-gender marriage in Obergefell v. Hodges (2015), Scalia mourned, “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” He also described the majority opinion as being “couched in a style that is as pretentious as its content is egotistic.”

“Justice Scalia” should go down in history as an oxymoron, defined by connecting contradictory words. While sitting on the Supreme Court, Scalia promoted himself instead of justice.

1 Comment »

  1. Reblogged this on It Is What It Is and commented:
    Good manners to say: Rest in peace …. but “good riddance”!!


    Comment by Dr. Rex — February 20, 2016 @ 2:35 PM | Reply

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