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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Scott P.:
February 28th, 2013 at 12:18 pm
You forgot to mention that in invoking the Sanhedrin, Scalia was appealing to foreign legal precedent.
Chris K:
February 28th, 2013 at 12:31 pm
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.
David Kaib:
February 28th, 2013 at 12:33 pm
But he writes his own opinions.
Ed K:
February 28th, 2013 at 12:37 pm
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.
Shakezula:
February 28th, 2013 at 12:37 pm
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:
Except? Save? But?
As you were.
sharculese:
February 28th, 2013 at 12:40 pm
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.
ploeg:
February 28th, 2013 at 12:42 pm
Obviously Justice Scalia finds the consensus against huffing to be problematic.
sharculese:
February 28th, 2013 at 12:42 pm
To his credit, John Lewis is perfectly capable of being less polite about this.
Data Tutashkhia:
February 28th, 2013 at 12:43 pm
Has he suggested splitting a baby in half yet?
Bijan Parsia:
February 28th, 2013 at 12:52 pm
I remember reading such things back when he was relatively newly appointed. You can still find such pretty easily:
Seriously…this has been cant since the 80s at least.
Major Kong:
February 28th, 2013 at 12:52 pm
Before or after he bit its head off and drank its blood?
Bijan Parsia:
February 28th, 2013 at 12:57 pm
Here’s some more:
Also, this.
My take is that his being brash, contemptuous, and condescending is mistaken for being intellectual.
Martin:
February 28th, 2013 at 1:07 pm
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?
penpen:
February 28th, 2013 at 1:12 pm
+1
snarkout:
February 28th, 2013 at 1:13 pm
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:
February 28th, 2013 at 1:13 pm
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.”
cpinva:
February 28th, 2013 at 1:19 pm
and jesus killers too!
“You forgot to mention that in invoking the Sanhedrin, Scalia was appealing to foreign legal precedent.”
calling all toasters:
February 28th, 2013 at 1:22 pm
Scalia was approved by the Senate in a vote of… wait for it… 98-0.
rea:
February 28th, 2013 at 1:22 pm
So, the vote to execute Jesus was nonunanimous?
Barry:
February 28th, 2013 at 1:23 pm
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.
Barry:
February 28th, 2013 at 1:24 pm
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).
cpinva:
February 28th, 2013 at 1:27 pm
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
wjts:
February 28th, 2013 at 1:28 pm
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.
Shakezula:
February 28th, 2013 at 1:30 pm
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.
wjts:
February 28th, 2013 at 1:36 pm
Post in haste, repent in leisure: after reading snarkout’s comment, I retract this argument.
cpinva:
February 28th, 2013 at 1:36 pm
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?
DrDick:
February 28th, 2013 at 1:45 pm
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).
gmack:
February 28th, 2013 at 1:52 pm
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.
rea:
February 28th, 2013 at 1:54 pm
Not so crypto . . .
brewmn:
February 28th, 2013 at 1:56 pm
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!
John:
February 28th, 2013 at 2:01 pm
In a big country, dreams stay with you.
brewmn:
February 28th, 2013 at 2:04 pm
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.
Barry:
February 28th, 2013 at 2:04 pm
Where ‘just icky’ means ‘works against Republicans’.
chris:
February 28th, 2013 at 2:06 pm
I thought the Roman governor washed his hands of the case.
chris:
February 28th, 2013 at 2:11 pm
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.
Chris K:
February 28th, 2013 at 2:20 pm
See too this: http://balkin.blogspot.com/2013/02/the-endless-perpetuation-of-racial.html
wengler:
February 28th, 2013 at 2:20 pm
But they talkee like British people!
sparks:
February 28th, 2013 at 2:21 pm
When the journalistically fellated are contemptuous of the politically weak or “lower orders” it’s also sometimes said, “he does not suffer fools gladly”.
wengler:
February 28th, 2013 at 2:21 pm
It’s not too late to take away judicial review. If Scalia was a true originalist he would’ve already.
Shakezula:
February 28th, 2013 at 2:22 pm
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.
David Kaib:
February 28th, 2013 at 2:24 pm
Well played.
Smut Clyde:
February 28th, 2013 at 2:30 pm
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.
Scott Lemieux:
February 28th, 2013 at 2:55 pm
I believe that with the possible exception of treason the “war crimes” umbrella would encompass these.
Scott Lemieux:
February 28th, 2013 at 2:57 pm
Right, but since the Kulturkampf was plainly motivated by animus the argument doesn’t make any sense.
Bill Murray:
February 28th, 2013 at 3:10 pm
sorry hmm only has one syllable. Maybe try Hmmonoculus
Shakezula:
February 28th, 2013 at 3:15 pm
Badabing, badaboom!
Arouet:
February 28th, 2013 at 3:15 pm
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.
Arouet:
February 28th, 2013 at 3:17 pm
But they are so very rare. If he’s judged on a conservative curve, he’s Aristotle.
Shakezula:
February 28th, 2013 at 3:17 pm
The War Crimes snip was me being a DominEditrix.
sharculese:
February 28th, 2013 at 3:19 pm
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.
Cody:
February 28th, 2013 at 3:39 pm
This sounds like a cool idea, but without the right guests it just turns into Sunday Morning Talk Shows.
Cody:
February 28th, 2013 at 3:42 pm
And something was really wrong in this case…
Camus:
February 28th, 2013 at 3:55 pm
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.
John:
February 28th, 2013 at 4:01 pm
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.
John:
February 28th, 2013 at 4:09 pm
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.
Smut Clyde:
February 28th, 2013 at 4:30 pm
the “war crimes” umbrella
Available soon from the LGM shop!
Meant to use the “HDB” nym; excuse sockpuppetry.
Anonymous:
February 28th, 2013 at 4:39 pm
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.
Anonymous:
February 28th, 2013 at 4:41 pm
(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.)
paleotectonics:
February 28th, 2013 at 4:58 pm
Like a lover’s voice?
jefft452:
February 28th, 2013 at 5:44 pm
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
spencer:
February 28th, 2013 at 6:34 pm
And now he’s dead – so look where that got him.
rbcoover:
February 28th, 2013 at 7:16 pm
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.
Breadbaker:
February 28th, 2013 at 7:21 pm
Nor any state legislation authorizing a death penalty, most of which were similarly passed by bloodthirsty and large majorities.
Breadbaker:
February 28th, 2013 at 7:24 pm
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.
LosGatosCA:
February 28th, 2013 at 8:17 pm
Obviously.
Mothra1:
February 28th, 2013 at 8:18 pm
Really excellent explanation, thank you so much.
LosGatosCA:
February 28th, 2013 at 8:20 pm
He’s a pig. It’s just that simple. An intellectually lazy, self-entitled twit of a pig wallowing in the bile of bigotry.
LosGatosCA:
February 28th, 2013 at 8:24 pm
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.
LosGatosCA:
February 28th, 2013 at 8:27 pm
I guess he has point then
LosGatosCA:
February 28th, 2013 at 8:30 pm
+10
LosGatosCA:
February 28th, 2013 at 8:34 pm
Top of the curve: Breitbart, Scalia, Buckley
Middle of the curve: Bush II, Quayle, Palin
Bottom of the curve: Every Republican not mentioned above
LosGatosCA:
February 28th, 2013 at 8:40 pm
fires the mountainside..
Stay alive..
LosGatosCA:
February 28th, 2013 at 8:41 pm
I’m pretty certain that he was shooting for both.
Breadbaker:
February 28th, 2013 at 8:49 pm
And a gender entitlement, too.
Breadbaker:
February 28th, 2013 at 8:51 pm
Yes, although the 15th Amendment’s sunset clause seems not to have made it into my copy.
Crackity Jones:
February 28th, 2013 at 9:15 pm
Breitbart at the top of the curve? Now granted, he’s not exactly in great company there in your list, but really?
Royko:
February 28th, 2013 at 10:34 pm
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”.
Scott Lemieux:
February 28th, 2013 at 10:57 pm
Cf. Jeff Rosen on Sonia Sotomayor.
Jon C:
February 28th, 2013 at 11:13 pm
Please, please, let one of the Justices get roaring drunk one night and drop this nugget into a footnote.
DrDick:
February 28th, 2013 at 11:29 pm
Masked his second rate intellect and warmed over third rate ideas quite nicely.
DrDick:
February 28th, 2013 at 11:30 pm
Death has raised his IQ dramatically.
Rogers:
March 1st, 2013 at 3:39 am
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”.
sibusisodan:
March 1st, 2013 at 4:14 am
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.
Crackity Jones:
March 1st, 2013 at 9:39 am
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.
S_noe:
March 1st, 2013 at 10:32 am
Ethics in America. I remember liking the episodes on battlefield ethics.
Fred Beloit:
March 1st, 2013 at 10:35 am
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.
S_noe:
March 1st, 2013 at 10:36 am
They appear friendly in this totally SFW photo.
Ron E.:
March 1st, 2013 at 11:18 am
Posts like this are the reason I read LG&M daily. Great job!
Scott Lemieux:
March 1st, 2013 at 2:45 pm
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:
March 1st, 2013 at 3:01 pm
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.?
JP Stormcrow:
March 1st, 2013 at 10:59 pm
Are you claiming there are no racial entitlements in the U.S.?
The logic is strong with this one.
Stuart Levine:
March 2nd, 2013 at 9:13 pm
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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March 5th, 2013 at 9:16 am
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