The angry wasp in the colony of worker bees
Hell hath no fury than a dissenting Antonin Scalia on the U.S. Supreme Court!
When Scalia wins and writes for the majority, he floats like a butterfly. Did anyone say, “gloats”?
When Scalia loses and writes his dissents, he stings like an angry wasp. (I did not say WASP.)
When Scalia is on the losing side of a case, he is not just a sore loser. He predictably transforms himself into a judicial geurilla fighter. He uses his judicial quill like a bush machete. He takes no prisoners. He leaves no witnesses.
In his dissents in King v. Burwell, (“Obama Care” case), in Obergefell v. Hodges (“same sex marriage” case), Scalia showed his consummate skills in the art of judicial guerrilla warfare.
He employed his prodigious rhetorical skills and penchant for verbal pyrotechnics to humiliate, eviscerate and incinerate his colleagues who do not agree with his antediluvian constitutional views.
For too long, possibly due to his withering barrage of verbal assaults, self-effacement or simple tolerance to promote collegiality and civility on the Court, Scalia’s colleagues have tolerated his judicial antics and temper tantrums. They have routinely allowed him free rein to run amok and conduct his verbal hit-and-run operations with his acerbic dissenting opinions. It is possible some may have been shell shocked by his relentless diatribes in his dissents?
To add insult to injury to Scalia, in Burwell and Obergefell, his comrades-in-arms had gone AWOL from their posts and publicly and unashamedly betrayed the righteous cause.
The Chief Justice himself had raised the white flag and surrendered to “Obama’s Army”; and for the second time.
“O Captain! my Captain!…” / the fortress of “original meaning” is undone … / the prize we sought is [lost],” to hearken back to Walt Whitman.
Justice Anthony Kennedy? Who said Benedict Arnold!?
Paraphrasing the words of the Bard of Avon, what is Scalia to do with “disgrace and [judicial mis]fortune in[ his] eyes” consigned to write dissents?
Should he “alone beweep [his] outcast state,/ And trouble deaf heaven with [his] bootless cries,/ And look upon [him]self and curse [his] fate?
No! “The croaking raven doth bellow for revenge.”
In Burwell and Obergefell, Scalia put the old adage to work: “Revenge is a dish best served cold.”
He decided to up his game. Forget judicial guerilla tactics. The equivalent of a judicial kamikaze attack on the U.S.S. Supreme Court is what is needed.
Scalia crashed and burned on the deck of the U.S.S. Supreme Court; but not without inflicting potentially long-lasting damage to the dignity, credibility and moral authority of the nation’s highest court.
What made Scalia go ballistic in Burwell and Obergefell?
It is clear in Burwell and Obergefell that Scalia had snapped, experienced the judicial equivalent of a nervous breakdown. He came unhinged. He plain freaked out!
Could he have undergone a partial spontaneous self-combustion?
Scalia’s dissents in both cases are a disconcerting display of judicial temper tantrums. He whined. He griped. He groused. He bellyached. He gnashed his teeth and wagged his finger.
Scalia lambasted the 6-member majority in Burwell for its transmutation of “Obama Care” into “SCOTUS Care” (Supreme Court of the Unites States care).
He accused the Burwell majority of “interpretive distortions” and pilloried them for casually “ignoring the Constitution.”
He castigated the majority for “favoring some laws over others” and for being “prepared to do whatever it takes to uphold and assist its favorites.”
He mocked the majority’s decision as “somersaults of statutory interpretation” which will go down in legal infamy.
He virtually called the 6-member majority legislative imposters in robes who have commandeered Congress’ power of the purse.
He characterized the majority’s opinion as “quite absurd”; and used antiquated slang to describe their interpretive approach as “pure applesauce” and “jiggery-pokery”. In other words, the majority’s opinion inBurwell was merely a judicial sleight of hand. To elucidate with another antiquated slang, to Scalia, the majority in both majority opinions in both cases were pure horse feathers. (I did not say bull feathers.)
Scalia said the majority in Burwell was laboring under a delusional messianic complex when it “rescued” the ACA from its proper consignment in the dustbin of legislative history. He argued, “But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved…”
He preached to his errant and ne’er do well colleagues they cannot save Congress from its original sin of “drafting errors”; they cannot rewrite the law to conform to their Panglossian views of constitutional perfection by judicial decree.
Scalia magisterially concluded, “Under all the usual rules of interpretation the Government should lose this case.”
In footnote 22 of his dissent in Obergefell, Scalia showed his total contempt for Justice Anthony Kennedy:
If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. 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.
Not even thirty pieces of silver to become a “fifth vote”?
He told the Obergefell majority to “Ask the nearest hippie” if they want to find out about the nature of marriage.
With such utterly mean and contemptuous language, I cringed thinking about Scalia’s descent. Tasmanian Devil?
Is there an equivalent for Darwin’s “Descent of Man” for Sarcophilus harrisii to more scientifically trace his lineage?
But Justice Scalia while edifying his colleagues on their lineage, hides his own pedigree.
Was it not Chief Justice Roger B. Taney who wrote in Dred Scot:
In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument… They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.
Was it not Associate Justice Henry Brown who begat the ignoble doctrine of “separate but equal” in Plessy v. Ferguson:
A statute which implies merely a legal distinction between the white and colored races — a distinction which is founded in the color of the two races and which must always exist so long as white men are distinguished from the other race by color — has no tendency to destroy the legal equality of the two races…
Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.
Scalia’s constitutional interpretation is guided by the simple principle, “Scalia is the personification of the Constitution. It is Scalia’s way or the highway!”
In sum, Scalia in his dissents managed to paint a portrait of the U.S. Supreme Court worthy of comparison to a Third World kangaroo court.
In a fleeting moment, I wondered if Scalia wondered what would happen to the 6.4 million people who would have lost their health insurance if he had gotten his way.
The Grand Inquisitor doesn’t have time to wonder about such silly questions. He is in hot pursuit of constitutional heretics on the Supreme Court for immolation at the stake.
The answer is obvious, of course. They will all be eating cake, stupid!
Obergefell v. Hodges: A judicial call to arms?
In his dissent in Obergefell Scalia raised the specter of judicial tyranny and signaled a looming class and sectarian warfare triggered by judicial abuse of power.
In rhetoric impregnated with hyperbole, Scalia warned, “The “Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”
He complained bitterly that “a system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
He accused the majority of power grabbing. “This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government.”
Scalia “doth protest too much”.
Beyond protesting, Scalia tries to rally the “minutemen” to rise up and crush the “judicial Putschists”, the power hungry and hubristic Eastern establishment cabal that run the shadowy judicial junta, deviously plotting to neuter the American people.
It is no exaggeration to say Scalia raised the flag and issued a judicial summons to arms and for class and sectarian warfare.
Scalia wrote,
The Federal judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.
The Supreme Court rules! Nine unelected lawyers have hijacked representative democracy! Call out the minutemen “booted and spurred”, that is, to meet the enemy.
Onward, patriots!
Pogo will be at the other end waiting for Scalia carrying a banner, “We have met the enemy, and he is us.”
What’s really eating Snarky Scalia?
What is the “clinical” cause of Scalia’s judicial bloodletting?
The spark that set off Scalia’s fuse in the Burwell case is an arcane topic in the law called “statutory construction”. That is a fancy phrase to describe the analytical process by which judges are supposed to interpret and apply laws written by Congress or the state legislatures.
At issue is the proper statutory construction of legislative language in the ACA providing tax credits. Specifically, what does the legislative language “enrolled in through an Exchange established by the State…” mean?
But Scalia’s issues go much deeper than that. They go to the very bedrock of the American Constitution; and how it should be read, understood and applied in our daily lives.
Scalia says there is only one way of reading, understanding and applying the American Constitution. He says we have to find out the “original meaning” of the Constitution when it was written in the 18th century and apply it squarely to issues and problems in the 21st.
It is like using jiggery pokery astrology, complete with folklore, symbolism and superstition, to examine the ever changing motion of celestial bodies blinded to two centuries of progress in the science of astronomy.
To better understand Scalia’s dissenting conniption in Burwell, a brief background is necessary.
In 2010, there were an estimated 41 million Americans without health care insurance.
Congress passed the Affordable Health Care Act (ACA) in 2010 to provide the 41 million plus uninsured Americans a chance to purchase health care insurance and to control the spiraling cost of health care in America.
Republicans in both houses of Congress opposed the ACA, and the law passed without a single Republican vote.
The way the ACA is supposed to work in simplified form is as follows. Each state is required to set up an “exchange” through which people could buy health care coverage.
An “exchange” is an online marketplace, a website, where people can research various options and buy health insurance.
There are exchanges run by the federal (healthcare.gov) and state governments. A state may also partner with the federal government and run its exchange.
States can choose to create and run their own exchange. Where there are no state-run exchanges, residents of the state can shop and purchase insurance on the federal “exchange”.
The ACA requires “all U.S. Taxpayers” to obtain the minimum essential insurance coverage or pay a tax penalty, unless they are low-income individuals who may be exempt.
To limit the number of people who would fall in the exempt category, the ACA provided for tax credits (the credit amount for health care insurance which is subtracted from the total personal taxes an insurance purchaser owes) to health care insurance purchasers calculated based on the health plan in which an individual enrolls through the exchange.
The Internal Revenue Service (IRS) issued tax credit regulation implementing the language “enrolled in through an Exchange established by the State…” That regulation made the tax credits available to those enrolled in health care plans not only in the state exchanges but also the federal exchange.
The State of Virginia opted to use the exchange run by the federal government.
A group of Virginia residents challenged the IRS regulation arguing that the IRS acted beyond its authority and contrary to the language of the ACA by making the tax credits available to those who purchased their health insurance through federal exchanges.
In Burwell, the U.S. Supreme Court ruled 6-3 that even though the plain language of the ACA refers specifically to state run exchanges, the language considered within the broader context of the law and the intent of Congress, it is clear that the tax credits were intended to be available through both types of exchanges.
Scalia disagreed and pejoratively characterized the majority’s opinion “SCOTUS Care”.
Judge Richard Posner reviewing “Reading Law”, a book co-authored by Scalia, showed the absurdity of Scalia’s theory of statutory construction by posing a question:
Does an ordinance that says that ‘no person may bring a vehicle into the park’ apply to an ambulance that enters the park to save a person’s life? For Scalia and Garner, the answer is yes. After all, an ambulance is a vehicle—any dictionary will tell you that. If the authors of the ordinance wanted to make an exception for ambulances, they should have said so. And perverse results are a small price to pay for the objectivity that textual originalism offers (new dictionaries for new texts, old dictionaries for old ones). But Scalia and Garner later retreat in the ambulance case, and their retreat is consistent with a pattern of equivocation exhibited throughout their book.
No retreat for Scalia in Burwell. “Enrolled in through an Exchange established by the State” means only “enrolled in through an Exchange established by the State.”
The “Jiggery Pokery” of Scalia’s Jurisprudence
Underlying Scalia’s bombast, verbal pyrotechnics and rhetorical gymnastics is Scalia’s own “jiggery pokery” of constitutional interpretive methodology called “original meaning.”
Stated simply, Scalia’s “original meaning” doctrine of constitutional interpretation requires judges to read and apply the Constitution based on their approximation of what “reasonable persons living at the time of the Constitution’s adoption would have understood and declared the ordinary meaning of the text to be.”
In 2005, Scalia in a speech argued,
I am one of a small number of judges, small number of anybody — judges, professors, lawyers— who are known as originalists. Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people. I’m not a ‘strict constructionist’… I don’t like the term “strict construction.” I do not think the Constitution, or any text should be interpreted either strictly or sloppily; it should be interpreted reasonably. Many of my interpretations do not deserve the description “strict.” I do believe, however, that you give the text the meaning it had when it was adopted. (Emphasis added.)
In other words, the U.S. Constitution should be read, understood and applied as it was back in 1787.
First, let me note that this is the second time I am engaging Justice Scalia in my blogs.
In January 2010, the Supreme Court issued its decision in Citizens United v. Federal Election Commission.
In Citizens United, a divided Supreme Court held that under the First Amendment corporations and unions have a First Amendment right to spend unlimited funds on campaign advertisements as long as they do not “coordinate” with any particular candidate. Justice Scalia joined the majority in that case.
Justice Anthony Kennedy writing for the majority in Citizens United held, “Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster.”
Although I am and always will be an incorrigible and diehard defender of the First Amendment, I thought the idea that the political speech rights of flesh and blood American voters and disembodied corporate entities are indistinguishable struck me as inscrutably peculiar.
In January 2011, I “engaged” Justice Scalia in my Huffington Post commentary, “Corporations Are Persons, But Women Are Not?”.
Scalia in an interview said that the equal protection clause of the Fourteenth Amendment does not protect women against discrimination arguably because they are not “persons” within the meaning of that Amendment. “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t,” Scalia observed.
Of course, the Constitution does not mention “corporations” either but Scalia and the majority in Citizens United felt they were “persons” under the 14th Amendment deserving of full expressive constitutional protections.
But for Scalia women are not “persons” under the same Amendment deserving of constitutional protection.
It is true that the Constitution does not mention women; and apparently Scalia feels comfortable in saying that it is questionable whether the Constitution disapproves of discrimination against women. “If the current society wants to outlaw discrimination by sex, you have legislatures,” Scalia pronounced magisterially.
But how does Scalia reason that an amendment designed to make “three-fifths of other persons” the equal of “free persons,” “citizens” or “people” does not apply to protect women “persons” from discrimination?
Does Scalia mean to suggest women are fractionally lesser than “the three-fifths of other persons” and intentionally omitted from constitutional protection?
Maybe he really believes women are from Venus.
Who really knows the “jigger pokery” jurisprudence of Scalia?
Scalia often speaks passionately of his fidelity to the democratic process.
In 1996, in United States v. Virginia, Scalia was the lone dissenter arguing that “the tradition of having government funded military schools for men (which excludes women) is as well rooted in the traditions of this country. The people may decide to change the one tradition through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics smuggled into law.”
Obviously, the “people” referred to by Scalia does not include women “people” who are incapable of making changes to tradition or law unless permitted by their menfolk.
Following Scalia’s analysis, it would be up to Congress and the state legislatures to protect women from discrimination. They shall have no refuge in the majestic words of the U.S. Constitution. Their refuge will be in the kitchen or in the bedroom as the plantations were “refuge” to the slaves.
Scalia says, “Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.” To me, that sounded to like superannuated judicial hypocrisy smuggled into the Constitution.
Talking about judicial hypocrisy, in Bush v. Gore, Scalia had the perfect opportunity to display his commitment to majoritarian democracy. He didn’t take it. He voted with the plurality to stop the vote recount in Florida in 2000 because equal protection required it.
There were many African Americans in Florida whose votes were not counted and denied equal protection in the 2000 presidential election.
Is the bigger fear rogue tyrannical judges imposing their whimsical demands on society, or minorities falling through the Constitutional cracks and electoral crevasses?
Scalia could have been the lone dissenter and shown his “originalist” colors in splendor and commitment to majoritarian democracy shine by letting the vote count to go on in those counties with higher concentrations of African Americans, where there was a high likelihood that their votes were not counted. Rather Scalia concurred and wrote,
It suffices to say that the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success. The issue is not, as the dissent puts it, whether “counting every legally cast vote can constitute irreparable harm.” One of the principal issues in the appeal we have accepted is precisely whether the votes that have been ordered to be counted are, under a reasonable interpretation of Florida law, ‘legally cast vote[s].’ The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.
I have always wondered if Scalia, before he issued his concurring opinion, had wondered about the original intent of the voters who did not push the pin hard enough through the ballot to detach the chads? Perhaps that is a meaningless question or a question with original meaning.
As I reflect on Scalia’s pathos for representative democracy and judicial submission to popular sovereignty, I recall a few lines from the Bard of Avon:
The devil can cite Scripture for his purpose.
An evil soul producing holy witness
Is like a villain with a smiling cheek,
A goodly apple rotten at the heart.
Oh, what a goodly outside falsehood hath!
In Obergefell, Scalia admonished his errant colleagues,
Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.”
In response, I would invoke Henry Wadsworth Longfellow: “Whom the gods would destroy, they first make mad.”
Shame on Scalia
I can imagine why Justice Scalia would publicly and verbally “flog” his colleagues with his dissents that are “a parley to provocation”, to borrow a phrase from the Bard of Avon.
In my own modest diction, I would say he is the bully on the court. He is a judicial bully out of control.
I know why bullies bully.
Bullies bully out of frustration, anger, the need to be feared, to seek and to become the center attention and just to be mean. Mean is as mean does.
I can imagine him reflecting on the sunset of his own “tyrannical” intellectual rule and role on the court. He despairs because he believes he has finally lost the culture wars. What can he do in his desperation? Act up! Act like a bully!
I regret to say that in reading his dissents in Burwell and Obergefell, Scalia unleashed “a tempest of provocation” in me, to borrow again from the Bard of Avon.
His contempt and disrespect for the members of the Court who disagree with him first made me cringe in shame, but quickly changed into righteous outrage.
I wonder if Scalia has ever heard of the expression, “Let’s agree to disagree”.
I would expect the type of intemperate language and mudslinging that disgraces Justice Scalia’s dissents from the mouth of drunken sailor unceremoniously kicked out of law school in the first year. I would never expect gutter language dressed up in judicial garb to disgrace the highest court in our land.
I have disagreed with far too many decisions of the Supreme Court. I would criticize those decisions, and not always because of deficiencies in reasoning or fact. If neither the facts nor the law are on my side, it makes me feel good to pound the table.
But I would never stoop so low as to mount a gratuitous ad hominem attack on any of the justices.
There could be no rule of law without fair, independent and competent judges. In our Constitution, the Supreme Court is an institution held in great reverence. The Supreme Court is the ultimate symbol of the rule of law in our society. The Supreme Court is also a deeply flawed institution with a long history of imperfections. But we don’t throw out the baby with the bathwater.
Scalia has cast a long and dark shadow of contempt, indignity and derision on the court itself. He has succeeded in painting a portrait of the U.S. Supreme Kangaroo Court.
There is one question that really bothers me about Scalia. If he truly feels and believes the majority in Burwell and Obergefell are so incompetent, misguided and dimwitted, why doesn’t he just resign and return to the paradise of the ivory tower and pontificate or issue his own version of the Decalogue? Why torment himself?
Why would he waste his time with 6 judicial “buffoons” as he presents them to be in his dissents, or waste his breath heaping insults on them?
As a defender of the rule of law, it would be hypocritical of me to stand by idly and watch Scalia publicly excoriate his colleagues as wayward school children and denigrate them as fairy tale writers and delusional fortune cookie diviners. I am ineluctably drawn into the eye of the “tempest of provocation”.
In ethics class in law school decades ago, I was taught to show respect for the court at all times regardless of my personal disposition on the outcome of a case.
Having read Justice Scalia’s dissents, I am beginning to seriously doubt the value of that ethical standard.
An upcoming young lawyer may feel emboldened to show the same level of respect to his local judges as Justice Scalia shows for his colleagues on the highest court in the land.
I apologize to the other justices for my uncharitable views on Justice Scalia’s jurisprudence and his incivility.
For my words here written when I am “wrought and perplexed in the extreme”, to borrow from the Bard of Avon, my only defense is that I learned it from Justice Scalia!
In his intemperate language and contemptuous treatment of the justices he disagrees with, he has made me an involuntary accomplice and accessory after the fact to the general disparagement of the highest court in our land.
For that, I say, “Shame on Scalia!”
Scalia, a court jester?
Scalia will continue to crank out his in terrorem dissents every time he is outvoted on an issue.
He will continue to be rude, arrogant and self-centered. (He points his index finger at his colleagues and calls them “egotistical”. He is completely oblivious three fingers are pointing at him.)
He will continue to hack his colleagues with his rhetorical machete.
He will continue to unleash his torrent of sarcasm to ridicule, caricature, deride, scorn and taunt those members of the court who do not agree with him.
He will continue to spew his venom on the court. To paraphrase the Bard of Avon, “The venom clamors of a mad judge/ Poisons more deadly than a mad dog’s tooth.”
He will continue to insist he is the voice of reason, and those who disagree with him on the court and off are the lunatic fringe.
He will continue to issue bombastic dissents full of sound and fury? But will his dissents signify anything?
What tale will his mean-spirited dissents tell the world?
He will do all these and more standing under the shadow of Momus, the Greek god of mockery, sarcasm and censure.
I am almost tempted to say, hearkening back to the ages, “Foul as it is, the Court itself is defiled by the fouler presence of Justice Scalia.” I won’t say it because that would be Scaliaesque.
But it is all good.
I enjoy reading Justice Scalia’s dissents just as much I enjoy reading “The Emperor’s New Clothes”, “Snow White and the Seven Dwarfs” (I did not say Snow White and the Nine Dwarfs.), “The Gingerbread Man” and “Beauty and the Beast”.
I like Justice Scalia. Not so much as a member of the high court, but as a choleric court jester. Unfortunately he does not make public appearances in the traditional attire of the jester, the brightly colored and tattered clothes, costumes and hats.
A young person I was talking to about Justice Scalia’s jiggery pokery jurisprudence said words to the following effect: Justice Scalia is like the guy who turns off the party music at 11 o’clock because none of the girls will dance with him and then hog the dance floor waltzing from one end to the other by himself making sure no one gets to dance.
Shadow dance, Scalia. Shadow dance!
For every jiggery pokery majority opinion there is an ill-tempered and angry jiggery pokery dissent.
Alemayehu G. Mariam teaches political science at California State University, San Bernardino and is a constitutional lawyer.
