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Scalia: Not Just Offensive, Ludicrously Overrated

[ 97 ] February 28, 2013 |

As Mark Tushnet has pointed out, Scalia is erroneously considered an intellectual standout on the Court because of his unusual tendency to write and speak in prose more generally seen on political shoutfests and op-eds.  Very frequently, these glib, attention-grabbing phrases are used to advance arguments that are essentially self-refuting.   For example, the oft-quoted phrase in his Romer dissent that “The Court has mistaken a Kulturkampf for a fit of spite.”  Oooh, erudite!   Only, what the hell is he talking about?  OK, so the Colorado amendment permanently singling out gays and lesbians and preventing any state institution from offering them rights protections is like anti-Catholic progroms and imposed legal disabilities in 19th century Prussia.   Um…so you’re saying Kennedy is right?  How could a “Kulturkampf” be consistent with the equal protection of the laws?  If Scalia had just used the banal phrase he was presumably trying to invoke  — “culture war” — this would have attracted less attention but also would have had the advantage of not blowing his own argument to smithereens in the first line.

But, as I mentioned in my piece yesterday, Scalia’s campaign in two oral arguments to argue that the strong bipartsian support for the Voting Rights Act is more reason for the Supreme Court to step in may be the best example of why Scalia is so egregiously overrated.   To expand on my point a little, let’s return to what he said at oral argument in 2009:

Expressing skepticism about the significance of the 98-0 vote by which the Senate reauthorized the Voting Rights Act, Justice Scalia said, “The Israeli supreme court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there.”

First of all, we have a show of erudition that is at best irrelevant and misleading.   The use of the phrase “Israeli supreme court” suggests that the practice was used by the contemporary (rather than the biblical) state of Israel.   But, of course, the modern Israeli state does not have the death penalty for anything but war crimes and has never had a rule that it could only be applied by a majority-but-not-unanimous vote.   Explicitly making clear that this was a reference to biblical Israel would have immediately made clear how anachronistic his point was.

But that aside, what’s more striking is that the argument is transparently idiotic.   Nobody thinks that verdicts of a unanimous jury are less reliable than the verdicts of a mere majority.    Permitting juries to convict without unanimity is an anomalous practice in the Anglo-American legal tradition for obvious reasons. And even in the rare jurisdictions where a supermajority rather than a unanimous jury verdict is sufficient, a unanimous verdict isn’t seen as not constituting a guilty verdict.   Scalia’s glib attempted cleverness serves to make his opponent’s point perfectly once again.

And Scalia’s attempt to argue that we should be suspicious of legislative consensus is problematic for an important reason.  The way the court’s reactionary wing treated the 15th Amendment yesterday stands the explicit purpose of the 15th Amendment on its head.   You would think, listening to Scalia and his fellow conservatives, that Congress was being subjected to strict scrutiny here, as if the core purpose of the 15th Amendment was to guarantee the equal treatment of states rather than the equal treatment of individuals.   But, of course, the 15th Amendment was ratified and included a provision giving Congress the “power to enforce this article by appropriate legislation” precisely because it believed the right of the franchise was more important than the “rights” of states.  And we also don’t need to ignore the fact that we tried nearly a century of trusting the states to enforce the 15th Amendment, with results that could scarcely have been more disastrous.    To try to turn the 15th Amendment into a states’ rights manfiesto in which the “federalism interest” trumps the Congress’s ability to protect the right to vote is as perverse as asserting that a jury system would function better if it ruled out unanimous guilty verdicts.  And while the strong, bipartsian support of the Voting Rights Act is not in itself dispositive, it’s certainly another good reason to defer to legislative judgment about what constitutes “appropriate” legislation, which has the additional advantage of being consistent with the purpose and structure of the 15th Amendment.

To cleanse the palate, let me finish with a couple of voices who actually understand the purpose of the Civil War amendments. First, let’s turn to Justice Sotomayor:

Meanwhile, Sotomayor, for whom this seems very, very personal, made an argument from history that discrimination is an infinitely mutable thing and that, as soon as you find a remedy for one form of it, human ingenuity will devise three new ones. And she was also sharply critical of the device by which finagling the vote had been divided, for the purposes of argument, into “first generation” and “second-generation” discrimination.

“I don’t know if I would call any discrimination secondary or primary,” she said. “Discrimination is discrimination.”

But what if preventing discrimination interferes with the Sacred Dignity of the States? The 15th Amendment protects that too! Somewhere in the back. And let’s not forget the provision that Congress has to have enough but not too much support when it passes legislation enforcing the amendment. Sotomayor really needs a copy of that Federalist Society Constitution rather than the old copy she seems to be relying on.

And, to conclude, genuine hero John Lewis:

Rep. John Lewis attacked Supreme Court Justice Antonin Scalia on Wednesday, calling comments he made during a Supreme Court argument on the Voting Rights Act “an affront to all of what the civil rights movement stood for.”

Scalia, a member of the court’s conservative wing, was intensely skeptical of the Act during Wednesday’s hearing, labeling its continued existence a “perpetuation of racial entitlement.”

“It was unreal, unbelievable, almost shocking, for a member of the court to use certain language. I can see politicians and even members of Congress — but it is just appalling to me,” Lewis said on MSNBC’s “PoliticsNation.”

“It is an affront to all of what the civil rights movement stood for, what people died for, what people bled for, and those of us who marched across that bridge 48 years ago, we didn’t march for some racial entitlement,” he continued. “We wanted to open up the political process, and let all of the people come in, and it didn’t matter whether they were black or white, Latino, Asian-American or Native American.”

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  1. Scott P. says:

    You forgot to mention that in invoking the Sanhedrin, Scalia was appealing to foreign legal precedent.

  2. Chris K says:

    Check out the amicus brief in Shelby from the Constitutional Law Scholars and Constitutional Accountability Center on precisely that point: an irrefutable showing based on the original intent and original understanding of both proponents and opponents of the amendments that the 13th through 15th were being enacted precisely to override state “sovereignty” with respect to, in the case of the 15th, the right to vote. There’s also a great discussion as to how the Congressional right to enforce the new amendments was expressly intended to be co-equal to Article I power.

  3. David Kaib says:

    If Scalia had just used the banal phrase he was presumably trying to invoke — “culture war” — this would have attracted less attention but also would have had the advantage of not blowing his own argument to smithereens in the first line.

    But he writes his own opinions.

  4. Ed K says:

    This is wonderful. That said, and apropos of Lewis’ perhaps overly polite ‘affront’ language, can we just make very explicit that in making this argument — that a law the point of which is to ensure equal access to the electoral process = racial entitlement — Scalia is making an explicitly racist claim. There is no other way to understand the claim that ensuring equal access for all = *racial* entitlement, where the clear implication is that such entitlements are wrong or ill deserved, except as asserting that some racially defined group of people (and we know who) should not have access. That’s racist, and needs to be called out as such.

    • sharculese says:

      To his credit, John Lewis is perfectly capable of being less polite about this.

    • Breadbaker says:

      Scalia operates on the basis that the natural order of things is a white majority that supports white people. Anything that interferes with it, such as the idea that black, brown or red people might vote and vote differently from white people, is tolerated so long as they don’t actually get to elect anyone who can garner a majority on anything.

      Why you can’t see the righteousness of this is very bothersome to Justice Scalia. It makes him want to throw something.

  5. Shakezula says:

    Scalia is erroneously considered an intellectual standout on the Court because of his unusual tendency to write and speak in prose more generally seen on political shoutfests and op-eds.

    Hate to jump on your lede, but I can’t let this use of the passive voice pass without comment.

    WHO considers him an intellectual standout, please?

    The only people I’ve come across that hold this view wouldn’t know from intellectualism if you nailed it to their foreheads. They are in fact known for being openly hostile to intellectuals. (I.e. elitist liberal eggheads in their ivory towers.)

    And of course people who claim he is an intellectual standout for the sake of showing he is in fact a perverter of facts and molester of language. That really isn’t necessary.

    Finally:

    But, of course, the modern Israeli state does not have the death penalty for anything for war crimes

    Except? Save? But?

    As you were.

    • Bijan Parsia says:

      WHO considers him an intellectual standout, please?

      I remember reading such things back when he was relatively newly appointed. You can still find such pretty easily:

      Court’s most colorful jurist today, defies simple characterization. Indeed, the often controversial and combative justice draws out a wide range of sentiments from his peers and the public. Certainly, no one denies his immense legal brilliance and intellectual abilities. A Supreme Court observer once noted that if the mind were muscle and Court sessions were televised, Scalia would be the Arnold Schwartzenegger of American jurisprudence.

      Seriously…this has been cant since the 80s at least.

      • Bijan Parsia says:

        Here’s some more:

        Similarly [to Hamilton!!!!], Justic Scalia has been widely praised for his intellectual abilities. During his 1987 confirmation hearings …, Sen….Kennedy…remarked, “As a scholar, public official, federal judge, Mr. Scalia has demonstrated a brilliant legal intellect…”… the praise for Scalia’s intellectual talents has continued unabated.

        Also, this.

        My take is that his being brash, contemptuous, and condescending is mistaken for being intellectual.

        • cpinva says:

          my take is that you are correct. it is a common mistake, made by many people, that if you are loud and obnoxious, surely you must be possessed of a great intellect. see: trump, “the” donald.

          “My take is that his being brash, contemptuous, and condescending is mistaken for being intellectual.”

          it turns out that petty individuals, possessed of venal intellects, tend to also be loud and obnoxious. see (among others): christie, “the gov” chris

        • rbcoover says:

          The “brash, contemptuous, and condescending” part makes him not only intellectual but principled. He’s so committed to originalism, he’s obliged to be a dick to those who trespass against the doctrine.

          To cite one example of this being standard rightist dogma on Scalia: it’s what my uncle believes, and he’s a pretty reliable barometer.

      • Shakezula says:

        All right, add lazy journalists spreading a meme created by a few fans back when neo-cons were still allowed to to use words like intellectual without spitting.

        • gmack says:

          I remember several years ago there was a series of shows on PBS, where a bunch of intellectual types (philosophers, priests, and the like) would gather around a table and debate issues in moral-ethical theory. Scalia was one of the ones frequently participating (it was filmed in the 80s or early ’90s, I think, though I can’t remember the name of it. There were at least a couple of shows in the series). The general tone of the show was that all of the participants were serious intellectuals considering various counter-factuals, etc., and it definitely promoted the idea that Scalia (along with the other participants) may have views that one disagrees with, but also that he is Very Serious and offers Important Arguments into the public discourse.

    • brewmn says:

      As a student at a Jesuit law school during the end of the Reagan era, I can guarantee that the notion that Scalia was brilliant (even if the professors didn’t agree with him either from a legal analysis or subjective ethical standpoint) was pretty much taken for granted.

    • Smut Clyde says:

      But, of course, the modern Israeli state does not have the death penalty for anything but war crimes

      But, of course, the Whackyweedia page also lists treason, genocide and crimes against humanity.

  6. ploeg says:

    Obviously Justice Scalia finds the consensus against huffing to be problematic.

  7. Data Tutashkhia says:

    Has he suggested splitting a baby in half yet?

  8. Martin says:

    I have a question about that Kulturkampf line — am I misunderstanding it or is it written backwards? The meaning of the statement “The Court has mistaken a Kulturkampf for a fit of spite” is that the Court has seen something big and scary and decided mistakenly that it is something small and inconsequential. Is that what Scalia was trying to say? You’d expect that it was the other way around, usually, that they’d mistaken a fit of spite for a Kulturkampf. Which does Scalia mean here?

    • snarkout says:

      No, my guess is that he’s saying that it’s not a fit of spite, it’s a Serious Big Issue on which people can choose sides and in which the state has a serious interest in participating. Nobody* disagrees that the state can make rules about the death penalty or abortion or prayer in the schools, but nobody* thinks that the state should get involved in you are not going out in that skirt while you live under my roof, missy, and have you done your homework yet?

      * It’s a big country; I’m sure somebody does.

    • AAB says:

      Scalia’s argument was that the Court assumed animus when the real basis of the law was “a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.”

    • wjts says:

      Is it possible that he means something along the lines of “The court has mistakenly interpreted Amendment 2 as an act of Kulturkampf in order to spitefully lash out at Colorado voters who have done nothing wrong”? I suggest this reading because he immediately goes on to call Amendment 2 “a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws” and concludes by saying that “[t]he people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment. Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before”. Neither of these descriptions seem to be consistent with thinking of the amendment as a “fit of spite”. The Court’s majority opinion, though, is described as “verbally disparaging as bigotry adherence to traditional attitudes. To suggest, for example, that this constitutional amendment springs from nothing more than ‘ “a bare . . . desire to harm a politically unpopular group,” ‘ ante, at 13, quoting Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973), is nothing short of insulting”, which would seem to be consistent with what “a fit of spite” would be.

      Or Scalia could just be a crummy writer who got the turn of phrase ass-backwards.

    • Arouet says:

      My interpretation was that the line was simply wrong, and that what he meant to say was that it was a fit of spite, and not a kulturkampf.

      • John says:

        The state has no legitimate interest if it’s just a fit of spite (which is, I believe, the tenor of Kennedy’s majority opinion – that there was no rational basis for the anti-gay law), so that’s definitely not what it means.

  9. calling all toasters says:

    Expressing skepticism about the significance of the 98-0 vote by which the Senate reauthorized the Voting Rights Act, Justice Scalia said, “The Israeli supreme court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there.”

    Scalia was approved by the Senate in a vote of… wait for it… 98-0.

  10. cpinva says:

    this is the comment that truly floored me (though, being scalia, it shouldn’t have):

    “perpetuation of racial entitlement.”

    yes, that whole damn “right to vote for everyone, who meets the minimum constitutional requirements” is surely just a “perpetuation of racial entitlement.”

    on its face, this makes no sense whatsoever. that having their basic right to vote protected by the federal gov’t, is somehow a special “perpetuation of racial entitlement.” what deep, dark, oozing pustule of his brain, does he access, to come up with such utter inanities?

  11. DrDick says:

    Can we finally dispense with the idea that Scalia is any thing other than a cryptofascist authoritarian ideologue with a good vocabulary? It seems that any marginally erudite conservative capable in speaking in more than two syllables automatically gets elevated to the status of outstanding intellectual (see Buckley, William).

  12. wengler says:

    It’s not too late to take away judicial review. If Scalia was a true originalist he would’ve already.

  13. Camus says:

    Scalia’s claim that the VRA was/is a type of “racial entitlement” is just a variation off of a frequent claim made by the right when legislatures seek to pass laws that prohibit discrimination. Laws against discriminating on the basis of “sexual orientation” are frequently attacked for creating “special preferences”. Scalia is just engaging in the same simple minded type of commentary. On a marginally different note I do find the willingness of Roberts, Scalia, Alito, and Thomas to overturn significant pieces of Congressional actions to be ironic given the lectures conservatives have frequently given against the evil of “judicial activism.” Activism in the interest of conservative principles is obviously no vice.

  14. John says:

    With respect to the Kulturkampf, what strikes me is that, as an American Catholic growing up in the 40s/50s and educated by the Jesuits, the Kulturkampf would have had some real resonance – American Catholics in those days had real experience of prejudice from a largely protestant society, and very recent reason to fear anti-Catholic bigotry being politically organized in the form of the KKK. That someone from Scalia’s background would go on to cite the Kulturkampf as a good thing is utterly bizarre.

  15. Mothra1 says:

    Really excellent explanation, thank you so much.

  16. Rogers says:

    After section 5 is ruled unconstitutional the congress should respond by extending it nationwide. And given the shenanigans re Bush Vs Gore they should include the Supreme Court as an additional entity requiring pre-clearance prior to any future electoral “tinkering”.

  17. Fred Beloit says:

    Dana Millbank, a radical and extreme leftist opinion writer for the NYT, has invented a new term. The definition is: a very smart person who uses logic, facts, and reason to argue with less mentally gifted people, who fall back on kneejerk emotions to present their side. The term is ‘bully’. The photo next to the term is Justice Scalia.

    • Scott Lemieux says:

      Dana Millbank, a radical and extreme leftist opinion

      This oughta be good…


      writer for the NYT

      Have to get that first factual error out there quickly.

      with less mentally gifted people

      Assumes facts that are extremely not in evidence.

      kneejerk emotions to present their side

      Like babbling utter nonsense about “racial entitlements” and Judean courts?

      • Fred Beloit says:

        From DanaMilbank.com: “Milbank also has written for The New York Times Magazine, New York Magazine and other publications.

        Did I write full time or exclusively? But I guess I said frik when I should have said frak. NYT/WaPo…as my grandfather-in-law used to say, ‘Both be same devil’.

        Are you claiming there are no racial entitlements in the U.S.?

  18. Ron E. says:

    Posts like this are the reason I read LG&M daily. Great job!

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