Thanks, Antonin Scalia

The justice’s brazen partisanship might wake Americans up to the court’s increasingly radical political agenda


By Joan Walsh


James Fallows is the sort of sober-minded liberal you’d never expect to toss around words like “coup” when describing degraded, hyper-polarized American politics. But on his Atlantic blog Sunday he posted a piece about the 21stcentury over-reach by the GOP-dominated Supreme Court with the headline “5 Signs the United States Is Undergoing a Coup.” He later changed the headline, but explained his original strong language this way:

… When you look at the sequence from Bush v. Gore, through Citizens United, to what seems to be coming on the health-care front; and you combine it with ongoing efforts in Florida and elsewhere to prevent voting from presumably Democratic blocs; and add that to the simply unprecedented abuse of the filibuster in the years since the Democrats won control of the Senate and then took the White House, you have what we’d identify as a kind of long-term coup if we saw it happening anywhere else.


And that was before the court’s decisions upholding part of Arizona’s tough immigration law while striking down Montana’s campaign finance law. It was also before Justice Antonin Scalia’s startling and unprecedented partisan rebuke of President Obama’s decision not to deport young people brought to the country illegally by their parents. “The president has said that the new program is ‘the right thing to do’ in light of Congress’ failure to pass the administration’s proposed revision of the immigration laws,” Scalia wrote. “Perhaps it is, though Arizona may not think so. But to say, as the court does, that Arizona contradicts federal law by enforcing applications of federal immigration law that the president declines to enforce boggles the mind.”


It’s becoming hard to ignore, and hard to reconcile with democracy: The man who wrote the decision making George W. Bush president, and then acknowledged it was so eccentric and singular it couldn’t be used as precedent for anything else, is at the heart of a project that began in the ’70s to remake American society by rolling back protection for consumers and workers and unfettering corporate power from its Progressive Era and New Deal regulations. Whatever they decide about the Affordable Care Act Thursday, the Scalia majority is busy reversing more than a century of American progress.


But Scalia may have gone too far with his sulky rant against Obama. Liberals are now calling for the justice to resign, including most recently the great E.J. Dionne. Salon’s Paul Campos made the same case earlier this week. I don’t expect Scalia to resign. On one level, I’m grateful to him for making his agenda perfectly clear.


Let’s review what Scalia has accomplished since the days he helped co-found the pro-corporate Federalist Society, of which he is still a leading member. He will go down in history, infamously, for the decision that stopped the Florida recount and made Bush president. It’s still amazing 12 years later: A Supreme Court justice chosen by Ronald Reagan stopped the recount, which was overseen by Bush’s brother Jeb. To settle an election scarred by race – black Floridians were four times as likely to have their votes invalidated, according to the media consortium that later counted the votes —  Scalia relied on the 14th Amendment, the one that guaranteed freed slaves their rights. But he used it to protect the rights of Bush, not of disenfranchised black voters.


But Scalia’s court career is marked by barefaced flouting of the nation’s expectations for someone in his exalted role. In 2004, he refused to recuse himself from a decision on whether Dick Cheney’s could keep his energy task force a secret, even after taking a duck-hunting trip with the vice president, his longtime friend. And he did it “in a 21-page memorandum filled with scorn and with lessons in the ways of Washington,” in the words of the New York Times.


In 2006, he gave a speech praising Guantanamo shortly before the court would rule on the rights of Guantanamo detainees. “I am astounded at the world reaction to Guantanamo,” he declared in response to a question. “We are in a war. We are capturing these people on the battlefield. We never gave a trial in civil courts to people captured in a war. War is war and it has never been the case that when you capture a combatant, you have to give them a jury trial in your civil courts. It’s a crazy idea to me.”


In early 2011, Common Cause accused him and Clarence Thomas of conflicts of interest on Citizens United because they headlined luxurious political strategy and schmoozing retreats convened twice a year by the Koch brothers “to review strategies for combating the multitude of public policies that threaten to destroy America as we know it,” as described in an invitation. Scalia, Thomas and the Kochs refused to disclose what he did at the event, but they used his name as a lure to draw other conservative machers to their 2011 event, which was addressed by none other than the thoughtful and erudite Glenn Beck.


Also last year he told California Lawyer that the 14thAmendment’s guarantee of equal protection didn’t apply to women.  ”In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation … The only issue is whether it prohibits [sex discrimination]. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that.” Corporations are people, but women aren’t protected by the 14th amendment, according to Scalia. Got it?


Scalia’s cafeteria constitutionalism, in which he picks and chooses the laws he ideologically agrees with and ignores the ones he doesn’t, was never on better display than in Monday’s SCOTUS decisions. In the world according to Scalia, Arizona has the right to patrol its own borders associated with a sovereign state, but Montana must bow to federal power when it comes to obeying Citizens United (the state’s 100-year-old campaign finance law was enacted to free its citizens from the corrupt control of mining interests). Or as Harold Meyerson put it in the Washington Post, “You’re sovereign when Scalia agrees with you; you’re nothing when he doesn’t.”


With Citizens United, the court majority went beyond the requirements of the case – they could have simply ruled that campaign-finance laws don’t apply to materials like films and documentaries – to invalidate the law entirely. Striking down the ACA could have an even more sweeping impact. If the court holds that the Commerce Clause doesn’t protect the government’s right to require individuals to purchase health insurance (or pay a fine), “it means an enormous amount. It means we’re living under a different Constitution that we were before,” the Constitutional Accountability Center’s Simon Lazarus told Alex Seitz-Wald. The New Deal was built on the foundation of the Commerce Clause, so invalidating the mandate could call into question the legal foundation of Social Security, Medicare and a long list of other government programs.


After the Bush v. Gore decision, Justice John Paul Stevens wrote: “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.” Stevens’ lament can be applied to Scalia’s entire legacy.


Yet Scalia’s brazen radicalism makes me believe it’s possible that Chief Justice John Roberts will find it necessary to uphold all or most of the ACA. Undoing the signature legislative accomplishment of a Democratic White House and Congress might awaken Americans to the “long-term coup” the right has attempted, starting not with the court’s decision in Bush v. Gore, but going back to President Clinton’s impeachment. The modern American right has decided it doesn’t accept even democratically elected Democratic Party leaders, and does what it must to thwart or eject them from power. The Scalia court has become one more tool in that project, and the brash justice’s contemptuous words ought to ring in the ears of all Democrats as they head to the polls in November.