Sunday, February 14, 2016

Scalia's Legacy

It's already started, the conservative drumbeat about how devoted Scalia was to the Constitution.

Nothing could be farther from the truth, of course, but that doesn't stop them from saying it.

Scalia practiced a form of fundamentalism known as textualism or originalism. Like religious fundamentalism, it has never been a consistent intellectual theme in either law or religion, but is a reaction to modernism and the inclusion of new ideas and population groups. The originalism practiced by Scalia, Thomas, Alito, and Roberts is merely an intellectual gloss on their visceral disapproval of the Twenty-First (and much of the Twentieth) Century.

A perfect example of Scalia's legacy, one that has had terrible consequences for the United States and the world, is Bush v. Gore.

We know what Bush v. Gore did: it installed George W. Bush as president. What is significant to understand the thinking of the majority, however, is how they reached that result. The basis of the decision was the Equal Protection Clause, and the claim that differential vote counting methods in different counties in Florida violated equal protection.

The irony, of course, is that the majority was a collection of conservatives who never, ever saw an equal protection claim they agreed with. For them, and for Scalia in particular, the Equal Protection Clause was entirely limited to what Congress intended when it adopted the Fourteenth Amendment, and could legitimately go not an inch beyond. Thus, for example, Scalia consistently refused to apply equal protection to claims of sex discrimination because it never occurred to 19th Century Congressmen that women could make a legitimate claim to political or legal equality.

No, but for some reason, unique in the history of jurisprudence, the one disfavored group entitled in the eyes of these conservatives to make an equal protection claim was the residents of certain counties in Florida.

Going further, the fundamental meaning of Bush v. Gore is set forth in one notorious sentence: Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

If there is any question in your mind, that meaning is that the conservatives were not deciding a case based on a legal principle, which would, of necessity, be limited not just to "present circumstances", but would be applicable to all future cases raising the same legal questions. No, their decision was merely that they preferred to choose the Republican and not the Democratic candidate, and if you didn't like it you could, as Scalia said, "Get over it."

Not a justice or a legal scholar, but a thug.

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July 18, 2016 3:31 AM  
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March 04, 2018 6:23 PM  

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