Sunday, February 14, 2016

A Legacy Of Bullying: Antonin Scalia

Antonin Scalia's reputation for brilliance appears to come from the same place as any bully's reputation for strength: people are simply afraid to publicly disagree with him.
His increasingly unhinged jurisprudence was best displayed in his most recent attack on Obamacare, where he denounced as "jiggery-pokery" the idea that one should read an entire law, not merely one line, in figuring out how the thing works. As others have commented, no-one knows how the Scalia Method let you get past a STOP sign.
Scalia's "Original Intent" claims were just silly. For example, abortion was legal in all 13 states when the Constitution was enacted, but Scalia never seemed to include this in his original intent jurisprudence. To the contrary, he perpetuate the fiction that abortion was illegal then, and few called him a liar.
To use the technical term: the guy was a bullshitter. His bullshit plus his power made him a bully, and that's a lesson for us all.
Perhaps the most egregious example of Scalia's methodology of "Brilliance By Bullying" was the opinion he wrote in the Bush v. Gore stay. This was not the opinion (unsigned due to cowardice) that formed the ultimate decision a few days later; that has been generally analyzed as being unsupported by American law by anyone who took the time to read it.
Rather, it was the decision supporting the "stay", that actually stopped the Florida recount, of which I write. Keep in mind that a recount was actually under way before being stopped by order of the Supreme Court. Scalia explained the "reasoning" behind the order in an opinion that completely rewrites a major feature of the common law.
A "stay" is a court order that says "stop what you're doing until we can rule on the thing." Its purpose is to prevent a possible wrong from getting worse. A stay is not issued casually, because one party's wrong is another party's right, and a court cannot lawfully interfere without carefully balancing the equities involved. It is an ancient part of the common law, far older than the Constitution itself.
Under the law of the stay, a court balances the harm to each party and issues the stay ONLY if the party asking for the stay is at risk of suffering irreparable harm that is greater than the harm the other party would suffer from the stay. Got that? It's really a sensible rule - the court does something extraordinary only if it prevents an ongoing harm that can not otherwise be repaired, and that does not create an equal or greater harm.
Scalia explains that he voted for the stay because the presidency of George W Bush would suffer if the vote count continued. That's his entire reason.
Scalia's analysis depends on re-writing the law of the stay.
1. He does not balance the harm done to both parties, as the law requires. He does not balance the harm done to the Bush presidency with the harm done to the Gore presidency; he merely considers the harm done to one and not to the other, and that alone makes Scalia's analysis simply wrong. 
2. Scalia does not explain how the Bush presidency would be harmed by a recount. If the recount gave Bush the win, then there would be no harm done; if it gave Gore the win, then there would be no Bush presidency to be harmed.
3. Scalia does not specify the type of "harm" or why it is such a bad thing. The presidency would lose none of its power under the law, so Scalia has to be talking about its political power - the balance between the executive and the other branches. Perhaps Congress would be emboldened if the presidency were seen as illegitimate. I can't say if that's what Scalia meant because he doesn't say but merely bulls ahead asserting by bluster, but at any rate it is not the within the court's purview to decide whether the presidency shall be strong or weak. It is a coequal branch, not a doctor, Jim!
4. The harm which Scalia alleges depends on an unperfected right to be President. At the moment that Scalia and the rest issued their stay, the Electoral College had not met. Under the original vision of the Founders, the Electors meet and debate among themselves who of all eligible citizens shall be the best choice for President. Maybe it would be Bush, maybe it would be Gore, maybe it would be Scalia himself; the Founders did not intend that Electors should be chosen by Party nor that they should mechanically cast their ballot according to a vote of the People. Until the Electors deliberated and cast their ballots, no-one has any right to the Presidency and so no-one suffered any harm by letting Florida recount its ballots.
Under Scalia's purported love for "original intent" Bush had no right to a Presidency in defense of which a court might issue a stay. This is yet another case where Scalia ignores the clear intent of the Founders to advance his political views.
"Original Intent" was merely a club Scalia waved around because, since we don't have term limits for judgeships, he could bully without consequence. (As the saying goes, "They are not Supreme because they are always right, they are always right because they are Supreme".) The joy he showed in bullying cheered his supporters and rewarded his patrons so that, if you ignored the harm he did to American law and to America itself, anyone may smile at his roguery.
At this time, it is right and appropriate to feel compassion for the family and surviving friends of this titan of jurisprudence, but we must remember that the Titans, like the other great figures of Greek mythology, were respected more for their power than for their wisdom or justice. 
Let the legacy of Scalia be a warning to us all that when we, in our turn, acquire power, we must not enjoy getting our way too much, we must not mistake bullshit for brilliance, for if this leads us to bullying it will lead us to error.