Sunday, February 14, 2016

Scalia’s sudden passing shouldn’t be cause to ennoble him and his extremism on the court

If you are ideologically or politically left of extreme-right, the late U.S. Supreme Court justice Antonin Scalia was probably someone you didn’t want the power to make decisions effecting ordinary people’s lives. Now, I realize that a lot of people—particularly white people—are not particularly concerned about what right-wing justices on the court do, for the same reason that the Republican Party is perceived as the “white people’s party,” and the belief that these justices decisions principally serve their interests, particularly as far as civil, voting and the accused rights are concerned, setting the tone for an unjustified paranoia about the “rights” of the majority. 

However, feeding off the prejudices of people merely blinds them to the long-term cost of narrow-mindedness. Such people tend not to notice that extremist justices adversely affect their lives in subtle ways, such as the recent blocking by the five right-wing justices of president’s executive order on curbing greenhouse gas emissions from power plants, particularly from coal-powered plants. The administration’s plan would not go into full effect for another 15 years, yet the coal industry once more trotted out the tiresome mantra of “potential” job losses. This is the same industry that a 2014 NPR report found that while most companies were perfectly willing to pay fines instead of improving safety conditions in the mines, the companies that were delinquent on their fines “reported close to 4,000 injuries in the years they failed to pay, including accidents that killed 25 workers and left 58 others with permanent disabilities,” and that “Delinquent mines continued to violate the law, with more than 130,000 violations, while they failed to pay mine safety fines.” 

That is just one of many examples of the right’s using outdated ideology to stifle the needs of the future. We don’t need to discuss Scalia’s smarmy asides in his dissents to the Affordable Care Act to discover that issues of public concern and safety are utterly anathema to the right-wing of the Court, and that it is utterly contemptuous of the security of the vast majority of Americans—most of whom happen to be white. In fact it seems it is more concerned with the “rights” of gun fanatics and bigots of every stripe, and Scalia was its leader and principle ideologue.

Scalia was also a racist; let’s not quibble about that fact. Like many Italian-Americans (such as his fellow far-right colleague, Samuel Alito), he was extremely conscious of his place in Anglo society, and this self-consciousness “required” that he out-bigot the bigots. Take for instance his stand on the current anti-affirmative action case, involving Abigail Fisher, a pudgy redhead who is yet another white female face on the attack on affirmative action. She whines that she was denied admittance to the University of Texas law school because of racial “preferences.” In fact her grades were not all that great, and as the university reported in its brief, and she would not have been admitted based on them because the school gave preference on admittance to students were in the top ten percentile of their graduating class, and Fisher failed to meet that standard. In fact, the brief noted that 26 white students compared to only six minority students received any kind of “special” consideration for admittance. 

The arrogance and self-conceit is typical, but so is the hypocrisy. No one wants to talk about the on-going affirmative action that white women have benefited from under the guise of Title IX. Although the law is usually thought of having to do with “equality” in sports participation, that isn’t its principle purpose, and it has essentially been a quota system providing what some may consider unfair and partial consideration for women in college admissions. This is affirmative action for women, yet no one dares call it that, because they are afraid of offending women and being called names. Yet who is afraid of belittling minorities in the most condescending of tones? Certainly not Scalia: 

“There are ­­there are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well. One of the briefs pointed out that most of the black scientists in the country don’t come from schools like the University of Texas…They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them … I'm just not impressed by the fact that the University of Texas may have fewer. Maybe it ought to have fewer. And maybe some you know, when you take more, the number of blacks, really competent blacks admitted to lesser schools, turns out to be less. And I don’t think it stands to reason that it’s a good thing to admit as many blacks as possible. I just don’t think…”

Scalia’s blatant racism—which in the past he has justified by claiming that the 14th Amendment does not prohibit private discrimination—seems to have exasperated Gregory Garre, speaking for the university:

“This Court heard and rejected that argument, with respect, Justice Scalia…If you look at the academic performance of holistic minority admits versus the top 10 percent admits, over time, they fare better. And, frankly, I don’t think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools, they’re going to inferior schools. I think what experience shows, at Texas, California and Michigan, is that now is not the time and this is not the case to roll back student body diversity in America.”

(The great irony of California’s anti-affirmative action Proposition 209, passed in 1996, is that white enrollment in the University of California system actually decreased from 40.2 percent in 1997 to 26.8 percent in 2010, while Asian enrollment is nearly 40 percent and far over-represented--such is the benefit of rote-memory-based "merit"--the reason why a measure to repeal the proposition was opposed by Asian advocates in the state. It is not the under-represented minorities who are the "problem" for whites.)

Many on the right accuse “liberal” or moderate justices of “judicial” activism; those on the left could make the same accusation of the extreme right on the court. Scalia whined in the gay marriage case that “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.” 

Yet Scalia and his colleagues on the right repeatedly ignored past precedent and reality on the ground in regard to a wide range of issues of public concern because of their hostility to “liberals.” Of course they hid themselves behind the sheer cloth of “intent.” Scalia claimed to be an advocate of “textualism”—that is “interpreting” laws as their writers “intended.” Yet in regard to the U.S. Constitution, the vagueness of “intent” was frequently the intent. The wording of the Second Amendment was arbitrarily abridged numerous time, indicating that the Constitution’s drafters were seeking a means both to justify by law their own “revolution,” and seeking a means to contain the issue of gun rights with the insertion of a “well-regulated militia.” The Constitution’s drafters certainly had no clue that the technology of weapons would go well beyond one-shot-at-a-time breach-loaders; they certainly would have been horrified to learn that “citizens” would go around with automatic weapons killing dozens of innocent people at a time. This was rule by mob violence, something they certainly would have not considered within the bounds of “rights.” Taking the Constitution “literally” in this day and age without consideration to vastly change circumstances is thus an emperor with no clothes. 

Nevertheless, Scalia’s apologists praise his “intellectualism” and “wit”; I call it a mockery of all human decency. “The world does not expect logic and precision in poetry or inspirational pop philosophy; it demands them in the law,” Scalia wrote in his dissent in the same-sex marriage case. Yet Scalia is infamous for his use of “zingers” and contemptuous and otherwise extremely unprofessional and even juvenile asides. Sometimes it seems he uses it to mask his own limitations in understanding the issues: “Troposphere, stratosphere, whatever. I told you before I’m not a scientist. That’s why I don’t want to have to deal with global warming, to tell you the truth.” That is someone we need making decisions on environmental protection?

Scalia is gone, and now it is time to put an end to this contempt for reality majority on the court. Not surprisingly, Senate Majority Leader Mitch McConnell is calling for the current vacancy to be filled after the presidential election—and what far-right flakes can we expect from people like Trump or Cruz if either one of them is elected? “The American people‎ should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president,” McConnell said. Well, from what I can tell, I’m not sure this presidential election is how that should be determined; this country has suffered enough from its short-sightedness.

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