The remarks made by Justice Antonin Scalia during the recent Supreme Court hearing on the Voting Rights Act reveal what a scandal this widely respected judge really is. The man is a hypocrite, and does not deserve to be treated in our political arena with moral respect.
Most of the attention on Justice Scalia's remarks regarding the Voting Rights Act, a crucial portion of which Scalia seems certain to try to strike down, has focused on his referring to the law as a perpetuation of a "racial entitlement".
That was plenty offensive in moral and political terms, but also in intellectual terms, as there's nothing preferential about the protections of the Voting Rights Act. The law in question is about making sure that a minority group that has historically been deprived of their rights gets those rights protected as well as are the rights of the dominant majority group.
Rachel Maddow's response to this offensive remark has been much quoted, and deserves to be quoted here:
He's a troll. He's saying this for effect. He knows it's offensive and he knows he's going to get a gasp from the courtroom, which he got, and he loves it. He's like the guy on your blog comment thread who is using the n-word. 'Oh, it made you mad? How about if I say this? Does it make you mad? Did it make you mad? Did it make you mad?' He's that guy! He's that kind of guy!But what I think still more shocking in Scalia's remarks, and what brings his hypocrisy into sharp relief, was the dismissive manner in which Scalia dealt with the judgment that Congress has made -- repeatedly, and as recently as 2006, by a vote of 98-0-- that the provision Scalia is apparently eager to strike down was still needed.
"'It was clear to 98 senators, including every senator from a covered state, who decide that there was a continuing need for this piece of legislation,' Justice Elena Kagan said, in what might seem a self-evident point.
"But not to Justice Scalia. 'Or decided that perhaps they'd better not vote against, that there's ...none of their interests in voting against it," he said. Later he elaborated on why he feels free to dismiss this particular congressional action:
I don't think there is anything to be gained by any senator to vote against continuation of this act. ... They are going to lose votes if they do not reenact the Voting Rights Act. Even the name of it is wonderful: the Voting Rights Act. Who is going to vote against that in the future?'Not only is this contemptuous dismissal of Congress unsustainable in terms of reason and facts --after all, we know that political figures these days go around passing voting laws to suppress minority voting, so one would hardly expect that political calculation alone would explain a unanimous vote-- but it exposes the utter hypocrisy of this supposedly high-powered, supposedly conservative, supposedly strict constructionist judge.
If Scalia thinks his point has any relevance to the matters that the Supreme Court is supposed to decide, if he thinks that it's up to the unelected judges to replace the judgment of elected officials in the making of constitutionally permissible laws, I would like to see this hypocritical "strict constructionist" show me where in the Constitution it says so.
Where do the Framers indicate that they don't want the democracy they've set up to be responsive to the desires of the electorate?
As one commentator says, this injudicious judicial conduct may not be considered grounds for impeachment, but it should be. A Supreme Court judge who apparently has no respect for anything above his own opinions, or prejudices, is a menace to the nation.
This is far from the only place that Scalia has shown his hypocrisy, drawing upon his principles when they suit his purpose but setting them aside when they'd get in the way of serving is true agenda.
Scalia declares himself to be an originalist, in his approach to the Constitution--originalism being that philosophy that says the Constitution should be interpreted as meaning what the text actually says and as what the Framers intended. Judges should honor that, the originalist says, and not twist the Constitution into something else in order to get the result they want. Honor the original intent, don't legislate from the bench.
I don't agree with the originalist position, but it is at least one that's deserving of respect. I've wrestled with these kind of constitutional issues for a long time, and I must say that there are some problems, or at least tough challenges, with the approach I generally support, the idea that the Constitution is a "living" document to be adapted to changing circumstances and needs. While supporting the idea of a "living" Constitution, I also acknowledge a need that there be some some people in the system, like the originalists, who provide an anchor to prevent us from straying unreasonably from what our Founders thought we were agreeing to.
The problem with Scalia isn't that he's an originalist. It's that he's a hypocrite. Again and again, he plays fast and loose with the Constitution when it suits his purposes. He has no trouble, for example, using the idea that corporations are persons, though it's not in the Constitution, and is indeed a misreading of what the Court was agreeing to say back in the 1870s. When the idea that the corporations were persons under the 14th Amendment, the people who had framed that amendment were still around and declared that this was not their intent.
But Scalia had no difficulty perverting that amendment to give us the disgraceful decision of Citizens United, putting our government up for auction to the highest bidder.
Back in 2000, when the presidency of the United States was up for grabs, Scalia had no originalist inhibitions about twisting the "equal protection" clause of that same amendment to declare George W. Bush president. The Bush v. Gore decision was such a travesty that even the Court's decision declared that it should not be used as a precedent.
Scalia is a hypocrite. He pretends to have principles, and gets up on his high horse. But with regard to his principles, he's opportunistic. He trumpets them when they help protect the interests he's there to fight for. And he'll violate them when those interests find they get in their way.
Are there any instances where the right-wing Money Power had a lot at stake where Scalia has found against them, based on his constitutional principles? I've not studied the record enough to say, but I'm betting there are not.
Scalia's supposed principles come out only inconsistently, and are thus a fraud, while what is real and constant is working to help those who have the most wealth and power get more wealth and power.
This is not a good man. This is not a man deserving of the nation's moral respect.
Andy Schmookler, an award-winning author, political commentator, radio talk-show host, and teacher, was the Democratic nominee for Congress from Virginia's 6th District. He is the author of various books including The Parable of the Tribes: The Problem of Power in Social Evolution.