Scalia (1936-2016)

We mustn't pretend that Justice Nino
was anything but, you know, what he was

UPDATE: Noah passes along a totally to-
the-point thought for the day (see below)

Futurama Wiki

by Ken

It happens every time an American officeholder dies leaving behind a record of evil: Amid the conventional pieties about the great sorrow, the great evil gets lost in the shuffle. In the case of that giant blowhard Antonin Scalia, the Supreme Court justice whose sudden death came as such a shock today, it's especially important not to let the subject pass through with the usual pieties.

In a word, Nino Scalia was a monster, and leaves behind an almost unbroken 30-year career of judicial mayhem -- adjudicating and bullying his fellow justices to adjudicate according to the diseased perversions of his social and political philosophy.

It's all the more important to call Justice Nino on his record because of the pretense he was allowed to maintain that he was a judicial "originalist," that his decision-making process was based on the "original intent" of the framers of the Constitution. Like just about everything this blowhard blew, it was a lie. His opinions were almost always formed in his far-right-wing ideological cauldron, and then dressed up in language pretending to claim knowlege of framers' "original intent," which was always twisted to support his ideologically based opinion.

Justice Nino devoted untold energies in those 30 years on the High Court to transforming the U.S. into the stinking hellhole of his mind: a world of unchallenged privilege for already-overprivileged white male Christians. Justice Nino always got to decide who had what kinds of rights and how much of them; the "originalist" trappings were simply grafted on. When push came to shove, as in the far-rightists's preposterous misreading of the Second Amendment to guarantee a non-existent right of all citizens to own guns, our Nino could not only ignore the "original intent" but ignore the plain language of the amendment, which states clearly that it relates to maintaining militias.

So on matters of government power and economic privilege, we were asked to believe that the framers' original intent was always to favor the power and privilege of the ruling orthodoxy. In matters of civic rights too, the operative concern was for the most restrictive orthodoxies -- as long as it wasn't right-wing orthodoxies that might be restricted.

Finally, some thoughts on a few specific issues:

JUSTICE NINO'S LEGAL "BRILLIANCE"

We're still hearing about how brilliant Justice Nino was, and what a brilliant writer, and all I can say is, once again: WTF? As writing, his Supreme Court opinions were barely a step above gibberish -- thuggish, assaultive, take-no-prisoners gibberish, mind you, but gibberish still. I suppose you could say he was a master of sophistry -- phony-baloney arguments dressed up to sound like simple logic. But I don't get how this passes for brilliant legal argumentation.

Hardly a word of his bombastic blithering ever made actual sense except as shameless bullying, substituting raw prejudice and aggression for argumentation. If any of his opinions had been submitted as a freshman English composition, it would have to have been graded somewhere between a peak of D-minus and a closer-to-typical F-minus. All the self-confidence in the world doesn't make logic-free, ad hominem ranting minimally acceptable argumenation.

THE SUPREME COURT SUCCESSION

I know there's already outrage being voiced at Republican leaders' bald statement that they won't consider an Obama nomination. This is certainly cheeky, but the reality is that as our system has evolved, there isn't much chance of Senate consideration of a Supreme Court nomination that's made in the final year of a presidential term, even though the Constitution doesn't offer any such proscription. But it is the reality, isn't it?

FOOTNOTE: IF THE SHOE WERE ON THE OTHER FOOT

I always like to play this little game, If the Shoe Were on the Other Foot. Of course if it was a Republican president faced with a Supreme Court vacancy in February of the fourth year of his/her term, any attempt by Democrats to interfere with his/her constitutional responsibility to name a replacement would be greeted with choruses of right-wing outrage and cries of "tyranny!"

But for right-wingers nowadays, hypocrisy is considered not just "no foul" but a virtual obligation. If you aren't being hypocritical, it's assumed you aren't really trying.

It's sobering enough to consider that right-wingers now have effective control of the Supreme Court confirmation process, as long as there isn't a 60-vote majority against them, and there isn't ever going to be one. And that means that the Right has influence amounting to veto power over the Supreme Court appointment process, since the right-wingers have effective veto power over any nominee they can muster 41 votes against.

This explains, I think, why -- notwithstanding right-wing invective against "liberal Supreme Court justices" -- we haven't in fact had a liberal Supreme Court justice, as far as I can see, since the retirement of Thurgood Marshall in 1993, and probably won't ever have another. The best we can hope for is moderate justices as distinguished as John Paul Stevens (1875-2010) and David Souter (1990-2009) -- both great justices, I think, for the intrepidity of their support for authentic constitutional values, at a time when those values were being increasingly assaulted by the right-wing thug justices, but neither in any sense a liberal.

The same goes for the Court's current block of moderates: Justices Ruth Bader Ginsburg (1993-), Stephen Breyer (1994-), Sonia Sotomayor (2009-), and Elena Kagan (2010-), honorable moderates all. Godspeed to them all.

There is, of course, an opportunity here for the DSCC --

To campaign for Democratic Senate candidates to retake control of the Senate, arguing the importance of Supreme Court confirmations (and confirmation of other presidential appointees). Democratic control wouldn't change the grim reality of the power of the filibuster, but it would certainly make a difference whether the Judiciary Committee holding confirmation hearings is chaired by a D or an R.

Yeah, I know this is pretty hilarious. I just thought I'd mention it.

ADDITION BY SUBTRACTION: THE
IMMEDIATE POST-SCALIA COURT

My gut response to the prospect of the current eight-member Supreme Court configuration remaining in place for, probably, more than a year: This is probably as good as we're going to get -- a case of addition by subtraction. At least now none of the nightmares that were set to ensue with the old 5-4 majority can happen. (Presumably the Court is sitting on a stack of cases it thought it had "decided" by that majority. Sorry, guyz!) Of course not much good can happen in this configuration except insofar as Slow Anthony K (or just possibly Chief Justice "Smirkin' John" Roberts) is prepared to make it happen, but how is this any different from the situation we've been in?

Obviously there are a lot of cases where the remaining justices will have to try to finesse 4-4 splits, trying to see if there's any kind of decison for which either side can negotiate a fifth vote. This will be especially problematic where federal appellate courts dump conflicting rulings in the High Court's hopper. It will be a mess. But can anyone say that the history of the Roberts Court has been anything but a mess?


UPDATE: NOAH SHARES THIS TOTALLY
TO-THE-POINT THOUGHT FOR THE DAY

"For some reason," he says, "I've been thinking of the attached quote attributed to Clarence Darrow's 1932 memoir."

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The Supreme Court takes a (small) stand in favor of pregnant women, and it's (real) news

Peggy Young with her daughter Triniti, now seven

"The U.S. Supreme Court sided with a woman who was faced with the choice to either work her labor-intensive job during pregnancy at the United Parcel Service or go on unpaid leave without benefits. In an opinion issued Wednesday morning, the justices ruled 6-3 that Young should at least be given a full opportunity to make her case in court that she was not given the same accommodation as other employees considered injured or disabled."

-- ThinkProgress's Nicole Flatow, in "U.S. Supreme Court Sides With Pregnant Worker In Major Discrimination Case"

by Ken

They didn't do all that much for the petitioner. In fact, you could describe it as what most observers would have considered the very least they could, in good conscience, have done. Be that as it may, though, it counts for something that the Roberts Court -- with, in fact, Chief Justice "Smirkin' John" Roberts voting in the minority -- ruled today, in Young v. United Parcel Service, Inc., that the Fourth Circuit Court of Appeals erred in refusing to allow Peggy Young to present her case to the court that UPS had violated the federal Pregnancy Discrimination Act by refusing to allow her to go on "light duty" during her pregnancy.

Still, the High Court at least did that much. As Justice Stephen Breyer wrote in an opinion joined by the three other moderate justices and Chief Justice Roberts, "Ultimately the court must determine whether the nature of the employer's policy and the way in which it burdens pregnant women shows that the employer has engaged in intentional discrimination." (Kind of amazingly, Justice "Sammy the Hammer" Alito also sided with the plaintiff, accounting for the 6-3 vote, but had to offer a concurring opinion to explain how you get to that point in Hammerland. I assume you don't need to be told who the left-behind "3" are.)

Let's let ThinkProgress's Nicole Flatow summarize the case:

Young was tasked with lifting boxes as heavy as 70 pounds in her job as a UPS worker. When she got pregnant, her midwife recommended that she not lift more than 20 pounds, and wrote a note asking her employer to put her on light duty. Had Young been written a similar note because Young broke her arm carrying boxes, or suffered from a disability, UPS would have put her on what is known as “light duty.” But UPS wouldn’t do it for Young on account of her pregnancy. The alternative was to take unpaid leave without medical benefits.

It shouldn't come as a titanic shock that the Fourth Circuit said "F.U." to the plaintiff. There's been personnel movement since the late Sen. Jesse Helms was forced to give up his guardianship of Big No. 4, but his spirit still hovers over it. And the mighty Fourth decided, as Nicole puts it, "that granting 'light duty' to Young would give pregnant employees an advantage over other other employees and that Young didn't suffer pregnancy discrimination," and couldn't for the life of it think why the bitch plaintiff should be allowed "to go to trial and prove all the elements of her claim."

That's the "oops" the High Court today declared on the Fourth Circuit.

"The Pregnancy Discrimination Act," Nicole explains (links onsite),

prohibits employers from treating pregnant women differently from other employees who are “similar in their ability, or inability, to work.” The act was passed in response to rampant mistreatment and misperceptions of women workers. But these misperceptions persist, even as women now make up about half of the workforce and a large proportion of them will either leave the workforce at some point to have a child, or may be viewed as a woman with the potential to one day leave the workforce for that reason.

In fact, complaints to the Equal Employment Opportunity Commission alleging pregnancy discrimination have only increased, prompting the Commission to remind employers recently that they still can’t discriminate against pregnant women.

As a group of women’s advocacy groups and law professors pointed out in their brief, a ruling against Young would have harmed the women most in need of pregnancy discrimination protection — those in “low-wage jobs and traditionally male-dominated occupations who are most likely to experience temporary conflicts between the physical effects of pregnancy and job requirements,” and who already experience disproportionate discrimination, according to recent statistics.

Which brings us to the counter-arguments brought before the Supreme Court. Um, well, and this is kind of embarrassing for the judges of the Fourth Circuit, there don't seem to have been any.

UPS didn’t have many advocates in this case other than the federal appeals court judges. Briefs filed on behalf of state and local lawmakers, national medical associations, the U.S. Women’s Chamber of Commerce, the U.S. Solicitor General, and even 23 pro-life organizations defended Young’s right to a work accommodation. They said the Fourth Circuit’s ruling was counter to the intent of anti-discrimination laws, that it was bad for the health of mothers and children, that it was bad for the economy, bad for business, and even could encourage women to get abortions. In all, 11 amicus briefs were filed supporting Young and none supporting UPS.

Then comes one of my favorite touches:

Even the members of Congress who passed the Pregnancy Discrimination Act explained that they intended for the act the court was interpreting to protect people just like Young, and that the court ruling against her “ignored the unambiguous mandate of the PDA requiring employees to consider only the ability or inability to work in determining a pregnant worker’s entitlement to benefits.”

Oh my! If the question was what's covered by the PDA, and you know, it kind of was, then you might think the case should have been open-and-shut. As long as you bear in mind that this Court only considers the actually expressed intent of Congress that actually expressed intent reinforces the justices' personal blind prejudices.

Nicole notes that today's ruling, "as expected by many advocates," was "rather narrow in its holding," and it's not just that the ruling gave Peggy Young nothing more than the right to make her case in court. In addition, the ruling --

took into account neither a 2008 change to the Pregnancy Discrimination Act, nor new 2014 Equal Employment Opportunity Commission guidelines that bolster protections for pregnant women. What’s more, UPS announced since Young’s lawsuit that it would change its policy going forward and allow workers to stay on the job performing light-duty work.

But the ruling is important nevertheless.

[T]he National Women’s Law Center’s Emily Martin told ThinkProgress earlier this year that any ruling for Young would help many pregnant women. “Even if the law has changed, it will only make it easier for those women,” Martin said. A recent survey by NWLC found that many women who felt they needed to alter their work duties or take more frequent breaks still fear requesting those accommodations.

What’s more, the ruling comes as a sigh of relief to many who worried about what Justice Ruth Bader Ginsburg referred to as the court’s “blind spot” on women’s issues. In 2007, the court’s five conservative male justices rejected Lilly Ledbetter’s fair pay lawsuit, in a decision later overturned by an act of Congress. In 2011, they turned back the largest-ever class of women alleging gender discrimination by Wal-Mart. And in 2013, that same voting bloc held that many corporations get to decide when their female employees should have access to contraception. Commenting on this blind spot, Ginsburg said in an interview recently, “[T]he justices continue to think and change so I am ever hopeful that if the court has a blind spot today, its eyes will be open tomorrow.”

Well, in this case two of the Court's right-wing extremists went off the reservation. (Note that "Slow Anthony" Kennedy, wearing his right-wing-extremist robe, stayed behind, as the sole support for the Scalia-Thomas axis.) That counts for something, no? If only for a day.

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A Citizens United sequel? Do Justices Ruth and Steve know something about their Supreme Court thug-colleagues that we don't?

Is one of the loons in the group secretly harboring non-elitist thoughts?

by Ken

The WaPo headline is tantalizing:

Two justices suggest Citizens United ruling
should be reconsidered in Montana case

The obvious thought is that one or more of the justices responsible for the Citizens United abomination, which made it official that elective office in the U.S. belongs exclusively to the highest bidder, has been sufficiently shamed by the spectacle of the 2012 election season to date to be willing to think about doubling back on that decision's shamefully ignorant and dishonest legal gibberish.

And the Post's Robert Barnes's lead sustains this impression: "Two Supreme Court justices suggested Friday that the court reconsider its controversial 2010 decision that allowed unlimited corporate and union spending in elections."

But then the illusion seems to me to disappear.

For one thing, it came as the court was blocking a decision by the Montana Supreme Court "upholding a century-old ban on corporate campaign spending in the state."

The Montana ruling seems squarely at odds with the court's 5 to 4 decision in Citizens United v. Federal Election Commission, which allowed unlimited corporate spending. The U.S. Supreme Court majority had said such independent spending did not give rise to corruption or the appearance of corruption.

In other words, the Supreme Court, in turning thumbs down on the Montana high court's ruling, was doing just what you would expect. So what's the story?

In Friday's order, Justices Ruth Bader Ginsburg and Stephen G. Breyer said the upheaval in the world of campaign finance since the Citizens United decision does not bear out the majority opinion.

"Montana's experience, and experience elsewhere since this court's decision in Citizens United v. Federal Election Commission, make it exceedingly difficult to maintain that independent expenditures by corporations 'do not give rise to corruption or the appearance of corruption,' " Ginsburg wrote.

"A petition for certiorari [from those challenging the Montana court's decision] will give the court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates' allegiance, Citizens United should continue to hold sway."

(Barnes later explains: "Ginsburg appeared to refer to the vast amounts of money spent by super PACs that have flourished in the aftermath of Citizens United and subsequent decisions by lower courts and the FEC.")

My takeaway? Justices Ruth and Steve are whistling in the dark. Unless, that is, they know something about one of their right-wing-loon colleagues. "Slow Anthony" Kennedy, maybe? Or maybe they're just hoping that one or more of their colleagues won't have the gall to "do it again."

But I really don't think so. Not from the confident way the court slapped the Montanans down. And the right-wing bloc on the High Court has hardly shown itself lacking in gall, or especially rich in shame. Of course, as reporter Barnes points out, there's no reason to assume the court would even take the case as envisaged in the Ginsburg-Breyer proposed scenario. And even if it does, the outcome I would expect would be requiring plaintiffs who complain about the powers of the rich to pay all the court costs of their "foolishness." In the era of the Roberts Court, we know who owns access thereto.

For the record, Barnes explains:

The Montana court's action has given rise to the first challenge of the Citizens United decision. By a 5 to 2 vote, the state court upheld Montana's 1912 Corrupt Practices Act, which prohibits certain political spending by corporations.

The Montana court acknowledged the conflict with Citizens United, but Chief Justice Mike McGrath said the state was especially vulnerable to "continued efforts of corporate control to the detriment of democracy and the republican form of government."

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On what basis might the rightward drag of the Supreme Court be arrested, or at least slowed?

Justice Breyer: Not the easiest read, but worth the effort

by Ken

Those summer issues of the New York Review of Books, when the magazine slows its pace from biweekly to every four weeks, but packs in more content, can offer an abundance of treats, and the August 19 issue has some important pieces on Supreme Court jurisprudence.

There is, to begin with, "On Handguns and the Law," a dense but rewarding excerpt from Justice Stephen Breyer's forthcoming book, Making Our Democracy Work: A Judge’s View, setting out the usefulness of a standard of proportionality in evaluating competing values and burdens and harms, using the record of the Court's misguided landmark gun-rights ruling, District of Columbia v. Hammer --

to explain why judges who interpret the Constitution cannot rely simply upon history. They must also examine values and reconcile competing values by determining whether a restraint is proportionate to need.

(Unfortunately, the Breyer article is available online only by subscription or purchase. If you want to read it, shoot me an e-mail at kenfromdwt@aol.com.)

Then there's "The Roberts Court vs. Free Speech," by Georgetown law professor David Cole, who represented the defendants, the Humanitarian Law Project, in Holder v. Humanitarian Law Project, in which the standard five-justice conservative Court majority suprisingly joined by now-retired Justice John Paul Stevens (not his finest hour, I think we have to say) "ruled that the First Amendment permits Congress to imprison human rights activists for up to fifteen years merely for advising militant organizations on ways to reject violence and pursue their disputes through lawful means."

Professor Cole notes the presumed parallel with the infamous Citizens United decision, which said that "the First Amendment bars Congress from restricting the ways corporations can employ their vast financial resources to drown out the voices of ordinary people in federal election campaigns."

The two decisions purported to apply the same First Amendment standard, but in fact the Court applied that standard in radically different ways. In the Roberts Court’s world, corporations’ freedom to spend unlimited sums of money apparently deserves substantially greater protection than the freedom of human rights advocates to speak.

And then there's a larger-themed piece by NYRB's resident constitutional-law guru, Ronald Dworkin, "The Temptation of Elena Kagan," in which Professor Dworkin draws mournful conclusions about the Supreme Court confirmation process, which he argues was further depressed in about-to-be-Justice Elena Kagan's hearings.

I think we should talk about that a little tomorrow.

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To the activist wingnut justices who armed the loons: Ya think this is what the framers had in mind?

Thanks, Nino! And Clarence and John John and Sammy and, yes, Anthony. You sure figured out what the Framers intended! Bang, bang!

""The decision [in District of Columbia v. Heller] threatens to throw into doubt the constitutionality of gun laws throughout the United States. I can find no sound legal basis for launching the courts on so formidable and potentially dangerous a mission."

-- Supreme Court Justice Stephen Breyer, writing in dissent

by Ken

For all those years the Supreme Court was smart enough to steer clear of a definition of just what right "to keep and bear arms" the Second Amendment refers to. (Never mind that blather about "a well-regulated militia." We wanna go bang!) Then in blundered the Mad-Dog Activist Justices, surely less qualified to venture into such tricky territory than any incarnation of the Court in modern history, and laid the foundation for the violent thuggery now being threatened by the lunatics of the Insane Right.

As yesterday on The Plum Line:

SEIU Gets Threatening Phone Call: “You’re Gonna Come Up Against The Second Amendment”

An official with SEIU, which has been sending members to town halls to counterbalance the Tea Party brigade, sends over this audio of a phone call the union received on its central voicemail system, threatening to teach union officials a thing or two about “the Second Amendment”…



The call seems to refer to reports today to scuffles in St. Louis between SEIU members and town hall rowdies.

“I suggest you tell your people to calm down, act like American citizens, and stop trying to repress people’s First Amendment rights,” the caller says. “That, or you all are gonna come up against the Second Amendment.”

More in a bit.

Update: Brian Beutler reports that an anti-health care reform organizer is explicitly calling on the troops to “carry” and if SEIU members get disruptive, to “hurt them.”

Now what's really creepy here is the way the New Armed Legions of the Far, Far Right have literally everything upside down: who's suppressing free speech, who's fomenting revolution, who the Nazis are (there's nothing being done by the American Right, either politically or tactically, that wasn't developed and perfected by the Nazis, allowing for the advances in technology that today's fascists loons can avail themselves of), who's not only threatening but beginning to commit violence. Diane, from the clip, is 100 percent wrong in every diseased word she utters. She of course is the one threatening murder on behalf of the cadres of violent right-wing sociopaths who hate everything this country stands for and are prepared to use any means available to them to institute the fascists dictatorship they lust for. I think it's safe to guess that on the issues Diane imagines worth descending into an orgy of violence over, she is 100 percent misinformed.

But I guess we're getting used to that.

So let me just point out that it was, of course, it was none other than the looniest of the loon-justices, Nino Scalia, the Constitution-shredding extremist hooligan, who wrote the majority opinion in District of Columbia v. Heller (2008). for a now-familiar judicial-activist bloc that included his fellow extremist stooges Clarence Thomas, John Roberts, and Sammy Alito plus only-when-I-feel-like-it stooge Anthony Kennedy,

In dissent, that milquetoastiest of moderates, Stephen Breyer, wrote, "The decision threatens to throw into doubt the constitutionality of gun laws throughout the United States. I can find no sound legal basis for launching the courts on so formidable and potentially dangerous a mission.”

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