It is now more than a week since Supreme Court Justice Antonin Scalia scandalized much of the nation with his observation that the continuation of the Voting Rights Act may constitute the perpetuation of a racial entitlement. The words in and of themselves were deeply offensive. What we dont know, of course, is whether Scalia truly believes them.
The Justice clearly takes pleasure in controversy. It may be that his language was designed merely to tweak the noses of his liberal colleagues, to challenge received wisdom, even to suggest a course of argument to the advocates appearing before him. This wouldnt be the first time that a Supreme Court Justice used provocation to nudge legal argument in a particular direction.
Since it is impossible to see into any persons head or heart, the beliefs that lie behind Scalias words will not be known until the Court makes a decision and he puts his official opinion on paper. Supreme Court Justices, far more than most public officials, must express and defend their thinking, not simply out loud on the spur of the moment, but on the record. The words they write not only determine the way the law is interpreted and applied, they reveal the character and purposes of the Justices themselves.
If you read any of the many opinions Scalia has written during his years on the Court, it wont take you very long to draw several conclusions about his character and purposes:
First, there is no doubt that Antonin Scalia is cleverly articulate. As compared with his colleagues on the Court, particularly the other conservatives, his prose crackles with wit and sarcasm, with verbal thrust and parry. Even if you dont agree with the man, you cannot deny that he is a good read.
Second, and less charmingly, you will quickly see that his arrogance is limitless. More than any other Justice on the Court, he dedicates his opinions to the disparagement of those who disagree with him. In our adversarial legal system, this is to some extent unavoidable. Legal decisions are verbal and logical victories, the direct result of one argument defeating another. Any Justice who writes an opinion must dispose of opposing arguments methodically.
But Scalias treatment of opposing arguments is more than methodical. It is savage, and the language he uses can be personal and dismissive. When he disagrees with an argument, he isnt content to lay out the legal flaws as he see them; he often characterizes the argument as foolish and those who uphold it as intellectually ridiculous. And he does all this with obvious and unseemly glee. Reading his words is like listening to a precocious ten- year-old who is convinced (and desperately wants to convince you) that he is the smartest kid in the class and everyone else is a dummy.
More damning still, Scalias own arguments are routinely duplicitous and dishonest. He claims to be an originalist, who believes that the Constitution must be interpreted according to the intentions of the Founders. But the Founders lived more than two centuries ago, and their original intentions are murkier than Scalia would like us to believe. Even when their intentions are clear, he is perfectly capable of creatively rewriting history to recast them as he wishes.
Scalias duplicity goes beyond an inventive approach to history. He is a master of twisting both logic and language to justify decisions that have little basis in law, precedent, or original intent. Perhaps the most notorious example is the majority opinion he wrote several years ago in the Heller case, which significantly altered the meaning of the Second Amendment.
The Amendment states:
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.
This brief and seemingly clear sentence begins with a participial clause. The ancient Romans, whose written works inspired and guided the Founders, called this an ablative absolute. In both grammar and logic, such a clause defines or limits the clause that follows. In this sentence, it is the need for a well regulated militia that defines, and limits, the right to bear arms. That is what the Supreme Court ruled in 1939 and continued to rule for the next seventy years.
(Of course, a rational person might argue that the ablative absolute in the Second Amendment became an anachronism long ago. A well regulated militia being no longer even remotely necessarythats another participial clause, by the waythe right to keep and bear arms is, at the very least, highly questionable. But put that aside.)
To overturn the long-standing interpretation of the Second Amendment, Justice Scalia cooked up a new grammatical concept, which he called a prefatory clause and distinguished from an operative clause. If the Amendments first words were in fact an operative clause, they would indeed limit the right to own guns. But according to Scalia, these words are merely prefatory, a bit of flowery but irrelevant language serving no logical purpose. Scalia based this claim on the appearance of a second comma in the Second Amendment, the one that stands between the words arms and shall. Remove that comma and you cannot plausibly deny the limiting reality of the Amendments opening clause. Reinstate the comma andvoila!according to Scalia, that clause becomes merel prefatory.
There are countless problems with this verbal sleight of hand, which Scalia was, and is, smart enough to realize. The main one is that the text of the Constitution is far from precise. There are several versions, in which the commas come and go. Which version reveals the original intentions of the Founders? Another is the plain sense of the language itself, which does not hinge on punctuation. Take all the commas out and you still have to confront the words as they were written.
As I said, we will not know what Antonin Scalia really thinks about the Voting Rights Act until, or unless, he chooses to write an opinion. But I think we can guess. The scandal of Antonin Scalia isnt confined to the offensive language he uttered from the bench. The scandal is that such a man is even allowed to sit on the bench of the highest court in the land. I have to agree with this assessment with this addition. Thomas has to be the worst Toady who has ever been nominated to the Supreme Court.
http://gracchusdixit.com/2013/03/07/the-scandal-of-scalia/