With the opening of the 2015-16 term Supreme Court of the United States (sometimes abbreviated as SCOTUS), I thought it might be the appropriate time to acknowledged that Antonin Scalia is a first class prick.
Court watchers pretty much know that. But you can also know it just from reading his opinions.
Scalia was beside himself twice last year: once when the Supreme Court upheld the Affordable Care Act (aka “Obamacare”) once more in King v. Burwell. (The first time it had been upheld in National Federation of Independent Business v. Sebelius.)*
The second time Scalia was beside himself was when the Court decided Obergefell v. Hodges, the case that legalized gay marriage as the law of the land.
In the Obamacare case Scalia was beside himself that the Supreme Court could read “state exchange” to include “federal exchange,” even though this was clearly a simple drafting error, one that could have easily been remedied if the Republicans in Congress were just a little bit reasonable.
Scalia wrote all of these things in his King v. Burwell dissent:
The Court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it means ‘Exchange established by the State or the Federal Government.’ That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.
This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious — so obvious there would hardly be a need for the Supreme Court to hear a case about it.
But this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed … will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.
Now, this might be funny if Scalia had not participated in massacring the Second Amendment in writing the opinion in District of Columbia v. Heller. (Scalia was also in the majority in McDonald v. City of Chicago, which applied the Heller decision to the states.)
Consider what the Second Amendment actually says. Here is the entire amendment, as ratified:
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
Scalia and the majority of the court read that amendment to establish an individual right to own guns, rifles, pistols, shotguns and the like, without any reference to the well-regulated militia that is so clearly part of the amendment. The way that Scalia read the amendment, it should really read:
The right of the people to keep and bear arms shall not be infringed.
But that’s not how the amendment reads. Any common sense reading of the amendment makes it clear that the right is contingent on a well-regulated militia, and one that is dedicated to the security of a free state. Like Massachusetts, my home state, for example.
So a literal reading of the amendment proves only that the Massachusetts State Guard should have the right to bear arms.
Scalia’s reading of the amendment was not about what the amendment said. It was about the politics of gun control, and any honest observer of the debate already knows that.
So it is highly ironic to see Scalia freaking out about a drafting error in a 1000 page enactment, where the intent of the drafters of that bill — who are still alive and were only happy to confirm it — was completely clear.
In the gay marriage decision Scalia fulminated through much of his dissenting opinion. He said, this for example:
[I]t is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.
That’s rich, coming from someone who voted in the majority on the Bush v. Gore decision. You would think that Scalia, of all people, would know that the Supreme Court is one of the co-equal branches of government.
And it’s not exactly that there had not been precedent for this kind of decision. The court had decided something very similar in Loving v. Virginia when it ruled unconstitutional the “antimiscegenation” statutes that barred blacks and whites from marrying each other in states like Virginia. (And Loving isn’t that old a decision: it was decided in 1967, long after one would have thought this to have been a settled issue.)
But that’s Antonin Scalia. Likes so many of his conservative brethren in the 21st Century, he’s a big hypocrite. It doesn’t really matter what the issue is, Scalia will gladly take whichever side of it suits his needs at the moment.
Good luck being an actual human being in 2016, Antonin!
*There is an extensive discussion of the Obamacare decisions on this very A1Skeptic’s blog, for those who are interested.