Solicitor General Verilli’s attempted to use Scalia’s stated principles of judicial interpretation in his argument. Verilli stated:
First, we are talking about the enforcement power that the Constitution gives to the Congress to make these judgments to ensure protection of fundamental rights. So this is—this is a situation in which Congress is given a power which is expressly given to it to act upon the States in their sovereign capacity. And it cannot have been lost on the framers of the Fourteenth and Fifteenth Amendments that the power Congress was conferring on them was likely to be exercised in a differential manner because it was, the power was conferred to deal with the problems in the former States of the Confederacy.
So with respect to the constitutional grant of power, we do think it is a grant of power to Congress to make these judgments. [. . .]
The second point is [. . .] it would be extraordinary to look behind the judgment of Congress as expressed in the statutory findings, and -- and evaluate the judgment of Congress on the basis of that sort of motive analysis [. . .] I do think that the deference that Congress is owed, as City of Boerne said, "much deference" -- Katzenbach said "much deference." That deference is appropriate because of the nature of the power that has been conferred here and because, frankly, of the superior institutional competence of Congress to make these kinds of judgments. These are judgments that assess social conditions. These are predictive judgments about human behavior and they're predictive judgments about social conditions and human behavior about something that the people in Congress know the most about, which is voting and the political process.
Verilli’s appeal is stark and obvious—are you an originalist and a textualist? Then you can’t possibly question Congress’s power to enact Section 5 of the Voting Rights Act. The 15th Amendment to the Constitution specifically and EXPRESSLY provided that power to Congress:
Amendment XV
Section 1.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.
Section 2.
The Congress shall have power to enforce this article by appropriate legislation. [My emphasis]
The text of the 15th Amendment could not be clearer—“The rights of citizens of the United States to vote shall not be denied or abridged by any state. The Congress shall have the power to enforce this article by appropriate legislation.” For a true and honest textualist and originalist the answer to the question regarding the constitutionality of Section 5 of the Voting Right Act was a clear and easy one—it is constitutional. But if you have interests you value above your stated principles of judicial interpretation—for example, your hatred of government remedies to address racial discrimination—those “sacred principles” must fall by the wayside. And in Shelby County, Scalia served his highest calling—his hatred for government remedies to address racial discrimination.
This is the judicial legacy of Antonin Scalia—intellectual dishonesty put to the service of lashing out at everything he hated—gay rights, government action to remedy discrimination, government action to provide health insurance to millions of the less well off and much much more.
As Scott Lemieux describes, Antonin Scalia was the very embodiment of the hard-right conservative Republican Id—expressing the hatred and contempt the Republican Party has for non “Real Americans.”
I’ll now look at some of those cases, in addition to Shelby County, where Scalia’s service to his highest calling—the hatred of people who weren’t “real Americans”—can be reversed and why the naming of his replacement is so very crucial.
Heller v. District of Columbia (2008)—in a 5-4 decision authored by Scalia, the Supreme Court overturned a 69-year-old precedent to declare the right to bear arms is an individual right. In dissent, Justice Stevens wrote:
Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case. The text of the Amendment, its history, and our decision in United States v. Miller, 307 U. S. 174 (1939) , provide a clear answer to that question.
The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.
Because of this noxious decision, expanded to the states in McDonald v. Chicago, the ability of our government to address our rampant gun violence problems is severely circumscribed. A fifth progressive vote on the court can either limit or overturn Heller and McDonald.
Parent Involved v. Seattle School District (2007)—in this case a 5-4 Court struck down VOLUNTARY desegregation plans in the Seattle and Louisville school districts. In one of the most astounding acts of judicial activism to serve the conservative project to dismantle any and all government plans to remedy discrimination, Scalia joined the Roberts 5 to bury us in offensive platitudes that served to forward the Republican anti-anti discrimination project. In dissent Justice Stevens wrote:
There is a cruel irony in The Chief Justice’s reliance on our decision in Brown v. Board of Education, 349 U. S. 294 (1955). The first sentence in the concluding paragraph of his opinion states: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” Ante, at 40. This sentence reminds me of Anatole France’s observation: “[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” 1. The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. 2. In this and other ways, The Chief Justice rewrites the history of one of this Court’s most important decisions. Compare ante, at 39 (“history will be heard”), with Brewer v. Quarterman, 550 U. S. ___, ___ (2007) (slip op., at 11) (Roberts, C. J., dissenting) (“It is a familiar adage that history is written by the victors”).
There is a direct line between the noxious and banal racialism of Roberts’ anti-anti-discrimination project as expressed in Parents Involved and the decision to strike down Section 5 of the voting Rights Act. Indeed it is the central theme of the Roberts Court—fight anti-discrimination on every plane and at every opportunity.
Of course the difference is Chief Justice Roberts is not one who openly embraces his disdain for “others”—not “Real Americans”—where Scalia let his racial freak flag fly openly. Roberts wraps his anti-anti-discrimination in false allusions to the great cases of our time. His deceptive project can be stopped with the 5th vote that President Obama or his successor can provide.
Citizens United v. FEC (2012)—the 5-4 decision where the speech of corporations was elevated to equal that of individuals. As Justice Stevens wrote in dissent:
The real issue in this case concerns how, not if, the appellant may finance its electioneering. Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets to televise and promote Hillary: The Movie wherever and whenever it wanted to. It also could have spent unrestricted sums to broadcast Hillary at any time other than the 30 days before the last primary election. Neither Citizens United’s nor any other corporation’s speech has been “banned,” ante , at 1. All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided. Even more misguided is the notion that the Court must rewrite the law relating to campaign expenditures by for-profit corporations and unions to decide this case.
The basic premise underlying the Court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its “identity” as a corporation. While that glittering generality has rhetorical appeal, it is not a correct statement of the law. Nor does it tell us when a corporation may engage in electioneering that some of its shareholders oppose. It does not even resolve the specific question whether Citizens United may be required to finance some of its messages with the money in its PAC. The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.
In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races. [My emphasis]
The untold effect of the 5th vote on affirmative action, the right to choose, and the right of the government to act on behalf of the less fortunate is impossible to overstate. This is the key vote. The fifth vote. So much hangs in the balance. For those of us who are not revolutionaries, protecting what we have hangs in the balance. For those who want a revolution, it can’t even start if the pernicious radical project of the Roberts Court, which had Scalia as its profane engine, is not stopped right now.
We must all fight to insure President Obama’s constitutional authority to name the replacement of Justice Scalia is not usurped. We must all fight to insure that our next president is a Democrat for as Justice Scalia’s passing reminds us, life is fleeting and many of our justices are in the golden years of the their lives.
The threat, and the opportunity, should wonderfully concentrate our minds on what’s at stake. Basically, everything.
