Scalia: Not Just Offensive, Ludicrously Overrated

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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97 comments on this post.
  1. Scott P.:

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

  2. Chris K:

    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:

    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:

    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.

  5. Shakezula:

    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.

  6. sharculese:

    From the (admittedly limited) reading I’ve done on the subject, courts’ response to this seems to be that express grant of Congressional power aside, telling states how to run elections is just icky.

  7. ploeg:

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

  8. sharculese:

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

  9. Data Tutashkhia:

    Has he suggested splitting a baby in half yet?

  10. Bijan Parsia:

    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.

  11. Major Kong:

    Before or after he bit its head off and drank its blood?

  12. Bijan Parsia:

    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.

  13. Martin:

    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?

  14. penpen:

    +1

  15. snarkout:

    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.

  16. AAB:

    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.”

  17. cpinva:

    and jesus killers too!

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

  18. calling all toasters:

    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.

  19. rea:

    So, the vote to execute Jesus was nonunanimous?

  20. Barry:

    From:

    http://www.meaningfullife.com/torah/parsha/devarim/shoftim/Unanimous_Verdict.php
    http://en.wikipedia.org/wiki/Capital_and_corporal_punishment_in_Judaism

    “A Sanhedrin that puts a man to death once in seven years is called destructive. Rabbi Eliezer ben Azariah says that this extends to a Sanhedrin that puts a man to death even once in seventy years. Rabbi Akiba and Rabbi Tarfon say: Had we been in the Sanhedrin none would ever have been put to death. Rabban Simeon ben Gamaliel says: they would have multiplied shedders of blood in Israel.”

    I don’t think that Scalia would hold to that.

    And that’s after the fact that he hasn’t denounced the Patriot Act or the AUMF, which were also passed by huge majorities.

  21. Barry:

    That was Roman law (or the Sanhedrin asking the Roman ruler to deal with a minor squabble under Roman law, to take the heat off of the Sanhedrin).

  22. cpinva:

    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

  23. wjts:

    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.

  24. Shakezula:

    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.

  25. wjts:

    Post in haste, repent in leisure: after reading snarkout’s comment, I retract this argument.

  26. cpinva:

    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?

  27. DrDick:

    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).

  28. gmack:

    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.

  29. rea:

    Not so crypto . . .

  30. brewmn:

    Throw in a reference to the code of Hammurabi and some barely-suppressed insults against those who support the VRA, and you’ve just written Scalia’s opinion for him!

  31. John:

    In a big country, dreams stay with you.

  32. brewmn:

    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.

  33. Barry:

    Where ‘just icky’ means ‘works against Republicans’.

  34. chris:

    I thought the Roman governor washed his hands of the case.

  35. chris:

    The irony is, voting really used to be a racial entitlement. Now it’s a citizenship entitlement, protected without regard to race. Because of the 15th Amendment and the laws passed under it.

  36. Chris K:

    See too this: http://balkin.blogspot.com/2013/02/the-endless-perpetuation-of-racial.html

  37. wengler:

    But they talkee like British people!

  38. sparks:

    When the journalistically fellated are contemptuous of the politically weak or “lower orders” it’s also sometimes said, “he does not suffer fools gladly”.

  39. wengler:

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

  40. Shakezula:

    How utterly depressing. I never saw him as anything but a particularly obnoxious bigot and have yet to meet anyone (law profs included) who thinks otherwise.

    Tossing out polysyllabic words is all it takes, huh? Hmmm.

  41. David Kaib:

    Well played.

  42. Smut Clyde:

    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.

  43. Scott Lemieux:

    I believe that with the possible exception of treason the “war crimes” umbrella would encompass these.

  44. Scott Lemieux:

    Right, but since the Kulturkampf was plainly motivated by animus the argument doesn’t make any sense.

  45. Bill Murray:

    sorry hmm only has one syllable. Maybe try Hmmonoculus

  46. Shakezula:

    Badabing, badaboom!

  47. Arouet:

    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.

  48. Arouet:

    But they are so very rare. If he’s judged on a conservative curve, he’s Aristotle.

  49. Shakezula:

    The War Crimes snip was me being a DominEditrix.

  50. sharculese:

    the notion that you ‘preserve traditional sexual mores’ by authorizing housing and employment discrimination against gays and lesbians is both offensively stupid and just regular offensive.

  51. Cody:

    This sounds like a cool idea, but without the right guests it just turns into Sunday Morning Talk Shows.

  52. Cody:

    And something was really wrong in this case…

  53. Camus:

    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.

  54. John:

    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.

  55. John:

    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.

  56. Smut Clyde:

    the “war crimes” umbrella

    Available soon from the LGM shop!

    Meant to use the “HDB” nym; excuse sockpuppetry.

  57. Anonymous:

    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.

    If you’re male, that is. Quite the opposite if you’re female.

  58. Anonymous:

    (By which I mean, being loud and obnoxious is only viewed as a positive for men. Women who are loud and obnoxious are generally not viewed positively at all.)

  59. paleotectonics:

    Like a lover’s voice?

  60. jefft452:

    Don’t remember the name of the series, Fred Friendly produced them if it helps
    That series is where I first learned that Scalia is a bafoon,
    and that C Everet Koop, while I disagreed with him, was honest and ethical

  61. spencer:

    C Everet Koop, while I disagreed with him, was honest and ethical

    And now he’s dead – so look where that got him.

  62. rbcoover:

    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.

  63. Breadbaker:

    Nor any state legislation authorizing a death penalty, most of which were similarly passed by bloodthirsty and large majorities.

  64. Breadbaker:

    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.

  65. LosGatosCA:

    Obviously.

  66. Mothra1:

    Really excellent explanation, thank you so much.

  67. LosGatosCA:

    He’s a pig. It’s just that simple. An intellectually lazy, self-entitled twit of a pig wallowing in the bile of bigotry.

  68. LosGatosCA:

    William F Buckley proved that polysyllabic words were a great smokescreen for bigoted wingnuttiness. It could even get a libertarian free marketer and bigot a show on PBS.

  69. LosGatosCA:

    I guess he has point then

  70. LosGatosCA:

    +10

  71. LosGatosCA:

    Top of the curve: Breitbart, Scalia, Buckley

    Middle of the curve: Bush II, Quayle, Palin

    Bottom of the curve: Every Republican not mentioned above

  72. LosGatosCA:

    fires the mountainside..
    Stay alive..

  73. LosGatosCA:

    I’m pretty certain that he was shooting for both.

  74. Breadbaker:

    And a gender entitlement, too.

  75. Breadbaker:

    Yes, although the 15th Amendment’s sunset clause seems not to have made it into my copy.

  76. Crackity Jones:

    Breitbart at the top of the curve? Now granted, he’s not exactly in great company there in your list, but really?

  77. Royko:

    Yeah, but he left Jesus’ fate up to popular will — by informal poll of a crowd — rather than the Sanhedrin. Which in modern terms, I believe, would be like dropping the case so that it can be decided on “The People’s Court”.

  78. Scott Lemieux:

    Cf. Jeff Rosen on Sonia Sotomayor.

  79. Jon C:

    Please, please, let one of the Justices get roaring drunk one night and drop this nugget into a footnote.

  80. DrDick:

    Masked his second rate intellect and warmed over third rate ideas quite nicely.

  81. DrDick:

    Death has raised his IQ dramatically.

  82. Rogers:

    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”.

  83. sibusisodan:

    Snrt. Would love to see that.

    Doesn’t Ginsburg – who dropped the snarkhammer on Scalia pretty robustly in here PPACA dissent – genuinely get on with Scalia, or something? Like, socialise with him?

    Do not get that.

  84. Crackity Jones:

    I always figured it was because: Ginsburg rules. But also because, like former presidents, they reached an elite position that very few ever do. And even if your colleague disagrees with you, few people can relate to your experience in that position of power.

  85. S_noe:

    Ethics in America. I remember liking the episodes on battlefield ethics.

  86. Fred Beloit:

    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.

  87. S_noe:

    They appear friendly in this totally SFW photo.

  88. Ron E.:

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

  89. Scott Lemieux:

    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?

  90. Fred Beloit:

    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.?

  91. JP Stormcrow:

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

    The logic is strong with this one.

  92. Stuart Levine:

    Actually, Scalia even gets the basic ruling incorrect. Simply because the vote is unanimous doesn’t mean the accused goes free. According to the authority you link to, the interpretation of Maimonides was that “‘the court’s ruling stands, and [the accused] only temporarily exempt, until some merit can be found for him. In other words, the court is not exempting him from punishment; rather, their judgment is valid, but merit must be found in order to carry out the sentence.’”

    So, not only does Scalia rely on foreign law, he doesn’t get the legal principle right in the first instance.

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