As we watch Democratic Senators try to explain to the American people why Judge Gorsuch should not be confirmed to the Supreme Court, it’s hard not to think of the state of the American judiciary as another failure of progressives, and lawyers and believers in common sense, to expend a lot more effort to criticize the views of the conservative/Republican judges who have come to dominate the courts. While various people have written criticisms of the various Republican judges who have held office during the last 40 years, these criticisms were largely found only in legal and other limited circulation journals and books. Very little was aimed at the main stream.
A perfect example of this failure was what was written about Justice Scalia on his death. I understand that overly sensitive souls may find it hard to say bad things about a bad person who has died, but failing to do so is just a lost educational opportunity. Anyone who believes that the judiciary should serve the American people as a whole and should operate within some rather well known rules is horrified by Judge Gorsuch’s speaking approvingly of Justice Scalia. The last thing out country needs is another Scalia on the Supreme Court.
Justice Scalia was the judicial equivalent of the Red Queen in Alice In Wonderland: “Sentence first-verdict second.” Scalia routinely decided who he wanted to win a case and then invented tortured ways to reach that conclusion, as he did most famously in Bush v. Gore, a case that, among other things, principals of Federalism should have left with Florida to resolve.
To support his tortured logic in his decisions, Scalia invented his own rules of statutory and Constitutional interpretation. While he claimed to be looking for “original intent”, that was always a cover for doing whatever he wanted. To make things even easier for himself, he invented the rule that he would apply “natural law” (something the Founders of the country and the authors of the Constitution would have rejected out of hand; so much for original intent), which when you worked through it meant he would consult his version of the Roman Catholic religion. And it was his version. For example, despite the fact that the Roman Catholic Church says it opposes capital punishment, Scalia insisted that it didn’t, so he could keep rushing people to execution and refusing to consider the fairness of the decisions that led to that sentence.
For those who didn’t want to figure out what was wrong with Scalia as a judge, they needed only read Judge Richard Posner’s, himself a conservative judge, various criticisms of his decisions. The most telling of those criticisms was Posner’s review of Scalia’s opinion is the Second Amendment gun ownership case of District of Columbia v. Heller in which Scalia basically ignores the first half of the Amendment to reach the decision he wanted.
Generally, Scalia decided cases to favor rich people over the rest of us, corporations over people, business owners over workers, customers and citizens as a whole, and Republicans over everyone else. The idea of putting another person on the Supreme Court who takes the same approach to being as Justice as Scalia should terrify 99% of the country. It’s up to progressives to expose the illogic and dangerous outcomes of so-called conservative legal theories, and to do so often so we can avoid being subject to the misrule of judges like Scalia and Gorsuch.