Scalia and his replacement

The Washington Post has an interesting eulogy of sorts for Supreme Court Justice Antonin Scalia, who died Saturday:

In his obituary of Supreme Court Justice Antonin Scalia, Washington Post Supreme Court correspondent Robert Barnes quotes Erwin Chemerinsky, now dean of the University of California, as writing that “No justice in Supreme Court history has consistently written with the sarcasm of Justice Scalia.” So while Antonin Scalia, who was found dead Saturday, may be primarily remembered as one of the giants of conservative legal thought, he will also be known as someone who made sarcasm a linchpin of the highest court’s opinions.

In an analysis last year, Richard Hasen, a law professor at the University of California at Irvine, wrote:

Justice Scalia is the most sarcastic justice on the Supreme Court. He has been for at least the last thirty years, and there is good reason to believe no other Justice in history has come close to his level of sarcasm. Now your first reaction to this claim, if you are a (sarcastic) Supreme Court aficionado or reader of the Green Bag (the two categories overlap almost perfectly), is probably: “Well, duh!” And your second reaction is likely: “Oh really? Well how can you prove that?”

Hasen looked at how often law journals referred to justices’ writing as sarcastic and reviewed examples of sarcasm in 134 Supreme Court opinions from 1986 to 2013. Overall, Hasen found that Scalia authored 75 of the 134 sarcastic opinions. “His ability (and willing-ness) to engage in nastiness, particularly directed at other Justices’ opinions, is unparalleled,” Hasen writes. The law professor says this isn’t all bad. “Sarcasm makes his opinions punchy and interesting, clarifying where he stands in a case and why and gaining attention for his ideas. On the other hand, such heavy use of sarcasm can demean the Court.”

Hasen then quotes Chemerinsky’s own book, published in 2014, on some of Scalia’s famous lines:

In dissenting opinions, Justice Scalia describes the majority’s approaches as “nothing short of ludicrous” and “beyond the absurd,” “entirely irrational,” and not “pass[ing] the most gullible scrutiny.” He has declared that a majority opinion is “nothing short of preposterous” and “has no foundation in American constitutional law, and barely pretends to.” He talks about how “one must grieve for the Constitution” because of a majority’s approach. He calls the approaches taken in majority opinions “preposterous,” and “so unsupported in reason and so absurd in application [as] unlikely to survive.” He speaks of how a majority opinion “vandaliz[es] … our people’s traditions.” In a recent dissent, Justice Scalia declared:

‘Today’s tale … is so transparently false that professing to believe it demeans this institution. But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however — or perhaps as an intended second goal — today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort.’

Hasen adds his own highlights:

Justice Scalia has remarked that “Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its Members.” In a civil rights case, he ended his dissent by stating that “The irony is that these individuals – predominantly unknown, unaffluent, unorganized — suffer this injustice at the hands of a Court fond of thinking itself the champion of the politically impotent.” In a gender discrimination case, he wrote: “Today’s opinion is an inspiring demonstration of how thoroughly up-to-date and right-thinking we Justices are in matters pertaining to the sexes (or as the Court would have it, the genders), and how sternly we disapprove the male chauvinist attitudes of our predecessors. The price to be paid for this display — a modest price, surely — is that most of the opinion is quite irrelevant to the case at hand.”

More recently, Scalia had some snarky things to say in his opinion on the Affordable Care Act case, which he has redubbed SCOTUScare, and on hippies who support gay marriage.

That, in addition to his correct position on most issues facing the court, is what the country will miss with his death. As a practitioner of sarcasm (no kidding), I appreciate someone’s ability to elegantly eviscerate wrong thinking.

Tributes to Scalia have come from his ideological opposites on the Supreme Court. (Though reportedly Barack Obama cannot be bothered to attend Scalia’s funeral.) Some see this as the civility we need more of in politics. Some see it as another sign that there are two parties in this country, incumbents and the rest of us, and the incumbents have it good and could not care less about us taxpayers.

The tiresome debate now going on is over Obama’s demand that the Republican-controlled Senate not block his selection of an America-hating leftist to replace Scalia on the court. This is despite the fact that a senator named Obama tried to block George W. Bush’s appointment of Justice Samuel Alito …

… as did U.S. Sen. Hillary Clinton (D–New York) …

… and that U.S. Sen. Charles Schumer (D–New York) demanded, more than a year before Bush left the White House, that Bush not appoint anyone to the Supreme Court.

Who else? The Daily Caller reports:

Now, it turns out that former Senator Russ Feingold (D-WI), who has been lecturing “irresponsible” Republicans on their “obligation” to vote on an Obama nominee was open to filibustering Bush’s 2005 selection of Samuel Alito for the Supreme Court.

The spunky America Rising Super PAC noted Tuesday that Feingold said in 2005 he would not take filibustering Alito “off the table” because “it’s my right as a senator and it’s an important right.”

I do not believe that Senate Republicans — for instance, U.S. Sen. Ted Cruz (R–Texas) — should block through parliamentary maneuvers Obama’s appointment. I think that Senate Republicans should vote down Obama’s appointment. There is no person Obama could possibly appoint who would not be the same stupid leftist who hates conservatives and wants to take away their rights as Obama does. There is no person Obama could possibly appoint who would not vote to take away conservatives’ First Amendment and Second Amendment rights, a judge who discerns “rights” in whatever areas Comrade Sanders and Hillary! agree with (health care, jobs, abortion rights) instead of actual constitutional rights.

The Supreme Court — in fact, the entire court system, federal and every state’s — is nothing more than, to paraphrase Carl von Clausewitz’s observation comparing war and politics, politics by other means. And in war, to quote Gen. Douglas MacArthur, there is no substitute for victory.

Leave a comment