Scalia’s Predictable Hypocrisy

One of the things that has always irritated me about conservative judges and thinkers is their entirely incoherent application of the concept of judicial restraint. They rail endlessly about the evils of “judicial activism” whenever the court overturns a law they favor — and only then. Here’s Justice Scalia turning the outrage up to 11 in his dissent in the DOMA case:

“That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere ‘primary’ in its role.”

Why? Because the Supreme Court struck down a law that was passed democratically. Which he thinks is terrible — except, of course, when he doesn’t. Like just one day earlier, for example, when he gleefully struck down the Voting Rights Act, which was passed nearly unanimously by Congress. Or last year, when he voted to strike down the Affordable Care Act. When he disagrees with the law being challenged, all those concerns about judicial supremacy magically melt away, leaving behind a lovely marinara sauce on which he enthusiastically dines.

The entire concept of “judicial activism” as it is so often invoked by conservatives (and, lately, by some liberals as well) is a meaningless platitude. It just means “I disagree with this ruling.” If the ruling is a bad one, it’s a bad one — but it isn’t bad merely because the court overturns a law that was passed democratically. That was the entire purpose of judicial review. And this outraged rhetoric whenever the court does something the right doesn’t like should inspire little more than derision and dismissal.

Scalia is playacting here, putting on a show for his audience, a nearly pitch-perfect reenactment of Captain Renault feigning outrage. “I am shocked,” he says, “shocked to find out that there is judicial review going on here!”

21 comments on this post.
  1. Daniel Fincke:

    Oh that hypocrisy. He has so many I thought you meant one of a couple others. What is so maddening about this is that it was precisely the will of the people in the states with gay marriage who were being trampled by this particular section of DOMA. This was a federalism issue, not one about the Court deciding that same sex marriage laws were in principle unconstitutional (even though such a ruling would have been even more just!)

  2. Reginald Selkirk:

    The Daily Show took note of Scalia’s consistency

  3. Tabby Lavalamp:

    Now if he really wants an example of judicial activism, I’ll gladly point him towards Citizens United where the court went above and beyond.

  4. eric:

    Like just one day earlier, for example, when he gleefully struck down the Voting Rights Act

    Its arguably a same day hypocrisy, since in the Prop 8 case he decided to overrule the CA legislature’s tacit acceptance of a private group’s standing to challenge the law.

  5. mikeyb:

    It’s not just Scalia. I listen to local right wing radio on the way home sometimes and I was struck by the glee in overturning the VRA followed by the horrors in the DOMA rulings on consecutive days. On the first day no mention was made by the host or callers about something they favored, yet there was faux-outrage the next day from the host and callers on the so called judicial activism of overturning representative legislation, no recognition of the irony of what they were doing just one day apart. I’ve long given up on the notion that most right wingers are even capable of understanding what hypocrisy is. What they are for is good, and what they are against is bad – what ever mechanism works to jam things through consequences and rules be damned – the means justify the ends. Texas anti-choice, voter ID and redistricting are recent cases in point.

  6. Skip White:

    ““That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere ‘primary’ in its role.”

    I thought that was basically the role of the Supreme Court, to act as a check against abuse of power by Congress and/or the Executive branch. HOW DOES A SUPREME COURT JUSTICE NOT KNOW THAT? Oh, wait, he’s being disingenous.

  7. theschwa:

    It envisions a Supreme Court … empowered to decide all constitutional questions, always and everywhere ‘primary’ in its role.

    Wasn’t that Marbury v. Madison?

  8. eric:

    Wasn’t that Marbury v. Madison?

    I am more than half* convinced that Scalia would strike down Marbury v. Madison if it ever came to it. Fortunately he’d lose that one, because Roberts and the other conservative justices are capable of strategic thinking and understanding what that would mean to their power to overrule liberal legislation.

    *I’m less than 100% convinced because even Scalia might balk if it came to a question while the executive and legislative branches were mostly controlled by democrats.

  9. gshelley:

    At least he managed to apply the “It’s not up to us, we don’t have standing” to both cases, though even by his standards, it would have really been pushing things to say they should deny standing on DOMA, but accept it on Prop 8.
    If he had got his way, and DOMA appeal was refused on standing, would that have left it as unconstitutional on the one district, but constitutional in others?

  10. umlud:

    If you read the paragraphs before and after the one Ed block-quotes, you begin to wonder what – exactly – Scalia thinks the purpose of the Supreme Court of the United States actually IS (let alone what it’s taught to be and what it has in practice been ever since Marbury v. Madison).

    I highlight some of the head-scratchers here.

  11. Zugswang:

    See, when I think judicial activism, I default to the majority ruling of the Citizens United case.

  12. rory:

    I know this makes me a bad person, but I was honestly hoping Nino’s fat, bloated heart would finally explode with all the excitement yesterday. I assume it’s possible to be politically conservative without being a horrible person, but the Supreme Court does not lend much support to that concept.

  13. velociraptor:

    It’s because Scalia (R – Skidmarks) is an ideologue. The primary reason for his selection for the SCOTUS was precisely for this reason. He will use whatever tortured reasoning he has to to support Right-wing ideology, and use it shamelessly. Thomas and Alito are the same.

  14. D. C. Sessions:

    Ed, there really is such a thing as “judicial activism.” The fact that the term is abused doesn’t mean that it’s not a useful concept.

    The technical definition is the opposite of what Roberts claimed to do in his confirmation hearings: calling balls and strikes. A court, properly, is an impartial arbiter between claims in fact and law presented by the parties to a legal dispute. A referee.

    A “judicial activist” is one who imposes a third alternative — the judge’s — on the case. The best instance in recent memory was Citizens United, where the Roberts Court ignored the narrow scope of legal theories and proposed remedies that the plaintiff offered and instead pulled a completely novel theory of the case out from under its robes — a theory which was not argued in any of the lower court proceedings, nor before the USSC.

    Never mind whether Citizens United was good or bad law (Beau Biden and Eliot Spitzer have persuaded me that it was actually good law but bad public policy.) The process that led to it was an absolutely stellar example of judicial activism.

  15. patricksimons:

    Historians will rank Scalia along side Roger Taney and the other justices who handed down the Dred Scott decision. His insistence the constitution is “dead, dead, dead” is the prime example of his intellectual laziness. If the world had been frozen solid since the 18th century, he might have a point, but that isn’t exactly the way things have happened.

  16. Artor:

    DC, it’s pretty clear how Citizens United is a bad policy, but I’m curious in what way it is a good law?

  17. Azkyroth Drinked the Grammar Too :):

    DC, it’s pretty clear how Citizens United is a bad policy, but I’m curious in what way it is a good law?

    Well, there’s the “The Law Is Inherently and Unquestionably A Club For The Powerful to Beat the Weak With” interpretation popular among about 0.5% of liberals (who don’t approve) and 120% of authoritarian rat fucks (who are salivating copiously), but other than that, I’m wondering too.

  18. D. C. Sessions:

    1) There has never been any question that freedom of the Press applies to corporate entities (Newscorp, anyone?) We’re now splitting some very, very fine hairs.

    2) Corporations already can and always have been able to spread their political opinions (and without any tap dancing regarding “issues advocacy”) by owning newspapers. All that previous law did was distinguish between those who bought advertising versus those who bought publishers. A rather odd distinction.

    From a Constitutional law perspective, I’d be OK with Citizens United type unlimited spending (see Jefferson.) However, as the Court advised, transparency is key here. Corporate stockholders deserve to know what their agents are doing in their names, for one. Voters need to know who’s behind those so-trite “Foundation for Apple Pie” post-office-box entities that spend hundreds of millions and then close up shop.

    In the normal course of events, this is the kind of campaign reform that we do pretty well — but we also take forever to do it. Look how long it took to get McCain-Feingold into law. Starting out with a actively obstructionist Congress where the reflexive obstructionists also currently have a large advantage in the stealth funding department is bound to have the predictable consequences: inaction.

    Which sucks for now, but will eventually get straightened out unless the short term goes way off the rails. After last fall, I worry a good bit less about that last.

  19. exdrone:

    Is “jaw-dropping” a synonym of “slack-jawed”? If so, then Scalia is just getting in touch with his inner yokel.

  20. Deen:

    In fact, Scalia has pretty much argued that the very fact that hardly anybody wants to vote against the VRA is reason for the Supreme Court to take action.

  21. democommie:

    It would be so nice if Scalia, Alito and Roberts all went for a road trip with Thomas and he drove the bus offa fuckin’ cliff.

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