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Friday, 19 February 2016 05:54

Scalia's Only "Originalism" Was in Cloaking Right-Wing Extremism in Legal Jabberwocky

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aaaaaaaaaaaaaaaaascaliachinAntonin Scaia: the late Supreme Court justice and chief pitch man for the charlatan notion of "originalism." (Photo: DonkeyHotey)

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Those who lost a loved one when Supreme Court Antonin Scalia passed away - particularly his family - deserve our compassion as he is mourned and buried.

However, when it comes to his professional legacy, Scalia left a corrosive trail of rulings and opinions that have been devastating to the principles of democracy and the legal concept of equal justice under the law. We have opined many times over the years about Scalia's pernicious court influence and voting, often based on the most absurd of arguments and defiance of both the Constitution and common sense.

Scalia's ability to wrap up partisan right wing extremism in lofty sounding legalese earned him praise for being "brilliant" from both the right and, not infrequently, left (even if liberals and progressives scorned his conclusions). However, that's like declaring a rotten fish was savory because it was wrapped in a sacred text.

It would be too lengthy to recount all of our columns that revealed how Scalia repeatedly smashed the Constitution and its amendments with a wrecking ball while burnishing the image of a venerable legal scholar. Scalia's University of Chicago law professor background came with a briefcase filled to the gills with hokum.

After all, what judge could get away with stating - in a 2009 court opinion - that there is nothing in the Constitution that prohibits putting an innocent man to death, as we have noted. Scalia wrote,

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged "actual innocence" is constitutionally cognizable.

There you have it. A stellar example of wrapping the foulest of deeds - putting an innocent man to death - in erudite language. That's not "originalism" or distinguished preeminence; it's cruel hackery.

Greg Palast recently wrote on his website about how Scalia upheld a discriminatory Indiana Voter ID law. Palast witheringly noted of Scalia's opinion,

In 2005, Indiana's Republican legislature passed a law barring the vote to anyone without current state photo ID.  The excuse: an official ID would prevent voter fraud – despite the fact that the state had not found, in over 100 years, even one case of a voter illegally impersonating another....

Civil rights groups sued, stating the obvious: that the Indiana law is racist in its operation, a violation of the Voting Rights Act.  Black folk, the elderly, students, and poor whites—were all blocked from registering and voting. Federal Justice Terence Evans threw out the biased ID law, writing, “The Indiana voter photo ID law is a not-too-thinly veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic...."

Experts pointed out that the average poor person in Indiana – a poor person likely to be Black – lived an average 17 miles from a county seat.

....Justice Scalia rode, recklessly, to Indiana’s rescue. Scalia chortled that “Seventeen miles is seventeen miles for the rich and the poor,” Black or white. How cute.  How droll, Mr. Justice.  And it's true, at 65 miles per hour, 17 miles is just a 15 minute cruise, whether your BMW is black or white.

Palast's recollection about Scalia echoes Scalia's questions and comments during oral arguments about the Voting Rights Act, key sections of which were struck down by the right wing 5-4 majority in 2013. Emil Guillermo of the Asian American Legal Defense Fund wrote about Scalia's remarks from the bench in March of 2013: "After his performance last week, is there any doubt Antonin Scalia is no friend to people of color..."

Guillermo recorded some of Scalia's most egregious statements about the Voting Rights Act during the initial hearing in 2013:

[Scalia speaking]  I think it [Congressional re-authorization of the Voting Rights Act] is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes....

And I am fairly confident it will be reenacted in perpetuity unless -- unless a court can say it does not comport with the Constitution....

That's the -- that's the concern that those of us who -- who have some questions about this statute have. It's -- it's a concern that this is not the kind of a question you can leave to Congress....

Perhaps, one can argue that a man who views voting rights as "entitlements" for people of color does embody the "originalist" racist views of many of the creators of the Constitution, but avoids the Constitutional amendments that enfranchised all Americans, including people of color and women. The amendment process itself was provided for within the "original" Constitution, so how can the icon of the "originalist" movement ignore constitutional amendments, even if he is glaringly bigoted?

Furthermore, the Constitution provided for a balance of power between the three primary branches of government in the United States. Yet, Antonin Scalia, who clamored against liberal judges allegedly "legislating from the bench" successfully advocated that Congress shouldn't be allowed to legislate the re-authorization of key sections of the Voting Rights Act.  Isn't Scalia stating a right wing case for pre-empting elected officials, invalidating their numerically decisive decision on a law and actively legislating from the bench? The answer is yes, and it wasn't the first time Scalia openly displayed his hypocrisy. Scalia repeatedly legislated right wing bias and partisan views through the Supreme Court, rolling right over Congress.

After all, it was Antonin Scalia who led the Supreme Court in nullifying a national election in 2000. Al Gore won the national vote by more than 540,000 votes - and would have won the Florida vote had the recount not been halted by a Scalia-mandated order - but Scalia captained a coup that put George W. Bush in the White House by a 5-4 vote.

That's not just legislating from the bench, as was Scalia's wont; it's stealing democracy.

Not to be reposted without the permission of Truthout.