The Perpetual Cycle of Wingnuttery Continues

Earlier in the month we discussed the phenomenon of Republican judges citing each other’s dicta as if they constituted some kind of meaningful precedent. Well, this winger chain mail now has another signatory — Justice Antonin Scalia:

What makes Owen’s opinion remarkable, however, is her justification for the conclusion that temporarily preventing the law from going into effect would constitute “irreparable harm” to the state of Texas. Circuit Court judges are bound by Supreme Court precedent; they cannot create new legal standards on their own. But as one lawblogger notes, the basis for Owen’s conclusion would be embarrassingly feeble if there was any evidence that she was capable of embarrassment. The following is a comprehensive list of the precedents cited by Owen to justify her conclusion:

• A bare assertion from a 1977 solo opinion—not speaking for the court—by then-Associate Justice Rehnquist that “[i]t also seems to me that any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” (“It seems”—well, I’m convinced!)
• A solo opinion—again, not speaking for the Court—by Chief Justice Roberts citing the Rehnqiuist opinion without any further defense.
• That’s it.

This precedential basis would need a lot more heft to merit being called “threadbare.” And it’s even worse than it appears at first glance. First of all, Rehnquist’s opinion applied to a case where the at least the statute had already gone into effect, making the argument of “irreparable harm” to the state even weaker as applied to the Texas abortion case, where it had not. And second, there’s a reason that this dictum has never appeared in an actual Supreme Court majority opinion—it doesn’t make any sense. If this “principle” were taken seriously, states would have an unlimited right to enforce unconstitutional laws for as long as the legal challenges take to wend their way through the courts, irrespective of the harm caused to those who rights were violated. This simply cannot be right.

How does Scalia’s counter to Breyer—typically long on belligerence and short on logic—reply to these obvious objections? Why, by merely citing the Rehnquist and Roberts opinions again. So now, the next time a hack Republican judge wants to make a politically expedient decision to deny or vacate an injunction preventing the enforcement of potentially unconstitutional legislation, he or she can now cite four precedents endorsing the same erroneous tautology without any attempt to defend it. It’s a nice con if you can pull it off.

So now we have four judges (or six, if you count Thomas and Alito, who joined Scalia’s opinion) who have endorsed the same silly theory, without anybody bothering to actually defend it. Perhaps there’s an Infinite Jest problem, in that they can’t find a clerk who can write the second sentence without dying of laughter. Between this and Shelby County, I think we need a fancy Latin term for this form of legal argument — stare circulus jerkus?

Of course, for Scalia this kind of thing is old hat. As his opinion this week inadvertently reminds us, it was his stay opinion in Bush v. Gore that made the partisan subtext of the final opinion just text.