Antonin Scalia Has Passed

It would be unseemly to pretend at this point that the passing of Supreme Court Justice Antonin Scalia is one that particularly affects my sentiments about him; I may send my best regards to those who mourn him, but I don't particularly mourn his passing from the bench. I've expressed my issues with his views on several occasions, and don't feel it necessary to say pleasant things about him in death.

As others have already jumped to politicize his death, I feel a bit insulated about discussing it as a political matter. If we were living in a less polarized time, the idea of a sitting president appointing Scalia's replacement would simply be seen as within that president's constitutional authority. In this president's second term, however, the opposition has become so used to the idea of blocking everything he does, however necessary it may be, that this conclusion that no appointment be made until after the presidential election was reached before it was even really confirmed that Scalia had indeed died.

The concept of "too soon", apparently, has also passed.

What this leaves us with is the specter of 4-4 decisions, and a highlighted sense of urgency regarding the coming presidential election as a referendum on who should determine the composition of the court--which I am not sure that Senators McConnell, Cruz, et als. have considered will also motivate liberals to go to the polls. In other words, I am not sure that blocking Obama in selecting a new justice is going to be quite the success that trying to repeal Obamacare or shutting down the government has been.

But they will do as their consciences dictate. I'm sure.

SCOTUS Justice Scalia Thinks Aloud

Thinking for a living is an ugly business, is it not? After all, not every brain-dropping you make is a cultured pearl of wisdom just waiting to be set in the finely-wrought platinum prose you know you are capable of. I know I post some stuff which, when reread upon the morrow, strikes me as something half-baked and yanked out of my mental oven way too soon. And yet? And yet!

Even stupid and half-baked thoughts have a kind of DNA marker that links them to their parent's overall memetic code.

So with that in mind, here is what Supreme Court Justice Antonin Scalia said aloud where the people could hear:

Referencing an unidentified amicus brief, Scalia said that there were people who would contend that "it does not benefit African-Americans to -- 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 less -- a slower-track school where they do well."

He argued that "most of the black scientists in this country don't come from schools like the University of Texas."

"They come from lesser schools where they do not feel that they're -- that they're being pushed ahead in -- in classes that are too -- too fast for them," Scalia said.

The case, Fisher v. University of Texas-Austin, is being brought by a white woman who was not accepted by the university and who says its policy to use race as a factor in a pool of the students it accepts is unconstitutional.

This is so great because one of my favorite celebrity-caliber scientists is Neil degrasse Tyson, who actually is African-American and went to University of Texas at Austin and Harvard.  I don't think these schools were detrimental to his career, and since one of Scalia's own colleagues on the SCOTUS bench went to quite good enough schools, I think maybe this sort of thinking is kind of dumb-founding. Really--his attitude is so patronizing and absurd. "Maybe you should go be a big fish in a small pond." "Maybe having your own water fountain will taste better." "Maybe being separate will get you more equal." Really, no. This kind of white supremacy is genuinely last century bullshit we can just put in a time capsule marked "Stuff we are over", okay?

I'm also not sure why this white girl had to take not being at UT personally enough to go to the SCOTUS level because seriously, this is the sort of thing safety-schools are for when you are not exceptional. And she is really out there making a federal case out of her un-exceptionality. Good luck with that. 

The ACA Survives Another Challenge

I'm pretty satisfied with the 6-3 Supreme Court decision upholding the ACA, because the argument against struck me as being, well, about the "meaning of 'is'". The law, passed over months of debate and effort, is frankly, the size of a big city phone book (kids, go ask your folks what a phone book is) and they went to a lot of effort to make Federal exchanges, which would have been dumb if people in states that didn't opt to set up their own exchanges were not able to participate in them. So we're weighing a four-word phrase against the context of everything that has taken place since the plan was designed?

Even Justice Scalia, in his dissent to the first pro-Obamacare decision a couple years back, knew better that than that! Luckily, words still mean things, even if you don't like what they mean. (But if he doesn't like it, I guess he can hang up his robe and let Obama pick a replacement.)

Just as with the last ACA decision, Chief Justice Roberts is getting called some names. Is it being "a traitor" to read the whole law over one bitched-up phrase? (But if anti-ACA folks feel that way, they can try and get rid of him and let Obama pick a replacement.)

It seems some of the reaction is a little over the top. There have been something like 60 repeal attempts and two court challenges now. At this point, maybe "tinkering" with any parts Republicans particularly don't like might be a more reasonable strategy?

Does Church and State Separation Have a Prayer?

All things considered, I've never really taken public prayer that personally, myself. I don't believe or make a habit of prayer, but I have no problem with enjoying a moment of reflection. If something gets too preachy, I just engage in a moment of impure thoughts and I'm fine. But that doesn't mean I'm fully on board with the SCOTUS decision regarding public prayer, if only because I feel like it might be heading past mere acceptance of expressions of spirituality (which I don't mind and even endorse--let a thousand flowers bloom!) to an imposition of a custom on others. I don't feel that it's right to dragoon people into sentiments with which they are not copacetic.

It seems that "coercion" was the test used, and they determined that public prayer wasn't specifically coercive, because, as in my personal example, one could simply tolerate it, so long as it contained no abusive or derogatory components. But I can see where this can set a precedent for prayer or religious proselytizing in other spheres where, because of institutional hierarchy, the boundary between coercion and endorsement becomes blurred.  It could set  a bad precedent.  I'm thinking of things like school or workplace impositions of at least tacit endorsement of spirituality.

(Not that the justices of the future should feel themselves bound to stare decisis anymore than, say, Justice Scalia does--even for his own previous decisions. Whosoever would be a man, must be a non-conformist, and consistency is the hobgoblin of etc. And also, what is the sense of looking for original principles if you then have to apply them consistently? Vide Whitman--does he contradict himself? Well then he contradicts himself; his head is large and it contains multitudes.)

But anyway, I just want to point out the really screwed-up part--Justice Thomas' opinion regarding state sanctioning of establishments of religion such as prayer as not being subject because the 1st Amendment should only pertain to Federal, not state activity just strikes me as wrong, although I'm not really a Constitutional scholar, as such. I thought the supremacy clause would pertain here?  And what would that even mean for other Bill of Rights protections like the Fourth or Fifth Amendment--are they sunk in state prosecutions because it isn't a "federal case"?  I don't even know--it just seems like he's out on a limb of the law that should be struck off.

Good Signs For Marriage Equality

It appears that a federal judge has declared Virginia's same-sex marriage ban unconstitutional, hard on the heels of the same decision being made regarding Kentucky's same-sex marriage ban.  Heh, maybe SCOTUS Justice Scalia was right about something--if not in the way he intended.

But I think a very good sign for marriage equality happens to be Senator Ted Cruz pushing an anti-marriage equality bill based on states' rights. He's like the patron of lost causes that still lose. And like (B)rand Paul, I'm pretty sure he's got an agenda that doesn't have so much to do with winning, as signifying for those political sugar daddy donations.

And because he's a big old bigot.  So, there's that, too.

Justice Scalia and the Perpetuation of Privilege

There were gasps when Justice Antonin Scalia made a very particular statement that evoked racial privilege--maybe not the way he intended:

WASHINGTON, DC — There were audible gasps in the Supreme Court’s lawyers’ lounge, where audio of the oral argument is pumped in for members of the Supreme Court bar, when Justice Antonin Scalia offered his assessment of a key provision of the Voting Rights Act. He called it a “perpetuation of racial entitlement.” 

The comment came as part of a larger riff on a comment Scalia made the last time the landmark voting law was before the justices. Noting the fact that the Voting Rights Act reauthorization passed 98-0 when it was before the Senate in 2006, Scalia claimed four years ago that this unopposed vote actually undermines the law: “The Israeli supreme court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there.”

The due process clause is a right for some, and an "entitlement" for others--and what exactly would be the  difference? If given evidence that white people men have been able to vote with little restriction, and yet black people have historically had barriers placed in the way of their rights by certain states--isn't it appropriate for the federal government to enforce compliance with the Constitution?  You see, the 15th Amendment reads as follows:

SECTION 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. 

SECTION 2. The Congress shall have power to enforce this article by appropriate legislation.”

The Congress has the ability to enforce compliance with the right (not "racial entitlement") of citizens of the United States to vote. This is only troubling to someone, perhaps, who thinks the Constitution died shortly after the Founders came up with that brilliant 3/5ths thing.  Otherwise, voting isn't a right but a privilege of (mostly) white people. It's really hard to read his derision regarding the VRA as something other than an opinion that the rights of the very people whom the VRA was meant to protect are not so much rights, but a kind of license we let them pretend to enjoy--which is by no means what the term "right" indicates. However, allowing states to make laws that tailor the voting pool to some preset demographic favorable to certain political goals abridges the right to vote--reinforcing a privilege.

Now, I might entertain the possbility that racialist motivations don't cloud the jurist's view, but to do so, I  would have to suppose there is some other reason, besides reading the clear language of the 15th Amendment,  to suppose that some other constitutional point obtains, what with him being a strict constructionalist and texturalist and whatnot.  And yet, SCOTUS rulings can't overturn whole Amendments.  He can't say he doesn't like it because of something in the 10th Amendment or 14th Amendent--he has to deal with what the Constitution actually says. Otherwise, that's just activism from the bench--amirite?

In consideration of the many attempts to weaken access to the ballot regardless of race, I would want to strengthen the VRA because many white peoples' right (not entitlement, and not privilege) to vote may also be infringed by state regulation.  It isn't about race. It's about citizenship. Citizens should have the right to vote. 

What is so fecking hard about that?  No particular race is privileged by the VRA--it only guarantees equal access to the right. 

Although this is nearly besides the point, unless a jurist were very much full of themselves, would they even say something like he said aloud where the people could hear? Because what he said sounded a little bit like he really thought that making sure "some people" got the same right to vote as "all people" should was prejudicial--which in and of itself seems very prejudiced against that particular "some people." Which would only serve to establish why they might require continued regulatory protection--no?

Justice Scalia might want to consider resigning if he's going to be that transparently biased, or show that much lack of interest in what the Constitution actually says.

Antonin Scalia and the Art of the Arbitrary

In view of the comments that Scalia has made regarding homosexuality, which appear to have equated the state of identifying as queer with a capital offense such as murder, I'm persuaded by his argument that Scalia's chief problem in viewing the issue may not be bias, but an absolute disconnect between the law as she is wrote and the ideal of what she is wrote for.  That is to say, to let the matter of what law can and should accomplish with respects to human affairs rest on morality and divorce it from the harm principle strikes me as capricious in the extreme--

Which surprises me little, since Scalia's approach to strict constructionism seems to be that of Humpty Dumpty--if the Founders have said a word, it means what Scalia would very much like it to mean, neither more nor less.

His usage of "reductio ad absurdam" strikes me as inapt in his own defense because it is not a reduction to the absurd to consider the state of homosexuality parallel with homocide--unless that really is your argument. Because that would be the extreme point of view: and the bitch of it is--that is the argument of bigots and hate-mongers and the religious wrong in many corners of the world to this very day, who aren't debating anything as rational as marriage rights--but are actually debating whether gay persons should be put to death by the state, or simply imprisoned for life.

If one is ever inclined to mock the absurd--this is not a cause for laughter, but a serious matter that shouldn't be addressed by a clownish smartypants who believes his biases sound better if inserted into the mouths of long-dead and sanctified American heroes. He is speaking through a tin god, as it were. But nowhere does this seem more logically repugnant to me than when he butchers the notion of what they were even trying to do with the Constitution, by declaring the document that establishes our legal framework "dead, dead, dead."

Is he unfamiliar with Enlightenment ideas about perfectability? Did he not notice the striving for a "more perfect union"? Was he somehow incapable of seeing how the ability to amend was "baked into the Constitutional cake" as it were? Is he somehow not aware that the Bill of Rights argument is done, and the preservation of certain rights for individuals against the intrusion of their government is kind of a done deal? Because if these things are the case, while I'm not a legal scholar, myself, I'm a little suspicious about what he thinks that document, that he's supposed to uphold, is for.

The thought experiment, wondered aloud,  “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?” leaves out the near-cousin of the redctio ad absurdam, the "slippery slope". True, we can have moral feelings about lots of stuff. We don't legislate all the things people decide to moralize about, or else society (and the courts) are tied up in the messy business of chasing after the busybodies who won't stop at who marries whom, but move right along to matters of, say, education for women, or who may be allowed to drive, or even show their face out-of-doors. The next thing you know, they've outlawed kites and all the menfolk have beards, even if some look like right prats in them. Whereas, if we can identify who is harmed by any action, I think we have a better grasp where criminality can be assessed

It is true that your bigoted anti-gay busybody has such a terrible store of offense lurking in the bile-pockets of their bosoms that they may very well be "hurt, so hurt!" when they see whatever it is that offends them.  A part of jurisprudence is knowing who properly is offended, and has grounds to pursue a suit. But clowning and playing up to the conservative anti-gay bias doesn't require grounds at all, does it? Homosexuality is wrong, sayeth the bigots, because it is. Because morals ideology says it is. And no respect of privacy, right to assemble, or equal treatment under the law (relics of a dead document, certainly) could talk him from this point? If fairness, or outcomes, have nothing to do with law--but an arbitrary morality does--where is the reasoning?

I don't really know. I just know that I find his outlook fairly troubling.  Not because I don't see the argument he's trying to make. Because it's just not right.