Category Archives: Justice Antonin Scalia

February 28, 2013 · 1:13 PM

Sotomayor Leads Liberal Justices In Defending The Voting Rights Act

Supreme Court justice Sonia Sotomayor is acknowledged by President Barack Obama at the Congressional Hispanic Caucus Institute’s 34th Annual Awards Gala at the Washington Convention Center, Wednesday, Sept. 14, 2011 in Washington. (AP Photo/Charles Dharapak)

Supreme Court justice Sonia Sotomayor is acknowledged by President Barack Obama at the Congressional Hispanic Caucus Institute’s 34th Annual Awards Gala at the Washington Convention Center, Wednesday, Sept. 14, 2011 in Washington. (AP Photo/Charles Dharapak)

TPMDC

Seemingly aware that they were outnumbered and fighting an uphill battle, the four liberal justices on the Supreme Court defended the Voting Rights Act during Supreme Court oral arguments Wednesday with a mix of sharp questions, appeals to history, and indirect rejoinders to the more conservative justices.

All four of them participated actively in oral arguments. None was more emphatic than Justice Sonia Sotomayor.

The Obama-appointed justice asked the first question of the day. She hammered Burt Rein, the lawyer representing the challengers, Shelby County of Alabama, over its record of discrimination. The county contends that Section 5 is unfair to its residents and other jurisdictions that it requires to obtain federal pre-clearance before changing their voting laws.

“Assuming I accept your premise, and there’s some question about that, that some portions of the South have changed, your county pretty much hasn’t,” Sotomayor said of Shelby County, which is 90 percent white. “In the period we’re talking about, it has many more discriminating -­- 240 discriminatory voting laws that were blocked by Section 5 objections. … You may be the wrong party bringing this.”

“Why would we vote in favor of a county whose record is the epitome of what caused the passage of this law to start with?” she asked, wondering why the Court should invalidate Section 5 if, as she argued, any formula would cover Shelby County. “Discrimination is discrimination.”

While Section 5 was taking a beating at the hands of the conservative justices, the four liberal-leaning justices targeted various audiences. Sometimes they played to each other, sometimes to the conservative justices they hoped to sway, sometimes to the future Court, sometimes to the public audience.

Justice Stephen Breyer several times tried to needle the lawyers defending the Voting Rights Act into addressing conservatives’ concerns. Other times, he did so himself.

“The disease is still there in the state,” he said. “Of course this is aimed at states. What do you think the Civil War was about? Of course it was aimed at treating some states differently than others.”

Justice Ruth Bader Ginsburg took the liberty of knocking down what she viewed as a straw man argument by attorney Rein.

“Mr. Rein, you keep emphasizing over and over again in your brief registration and you said it a couple of times this morning,” she said. “Congress was well aware that registration was no longer the problem. This legislative record is replete with what they call second generation devices. Congress said up front: We know that the registration is fine. That is no longer the problem. But the discrimination continues in other forms.”

Justice Elena Kagan twice said the Section 5 coverage formula has been working “pretty well” when it comes to snuffing out voter discrimination where it’s most likely to emanate. When Rein argued that it’s the courts, not Congress, who should determine whether the coverage formula is legitimate, she sounded shocked.

“That’s a big new power you’re giving us,” Kagan said, “that we have the power to determine when racial discrimination has ended. I did not think we had that power.”

In the final moments of the argument, Sotomayor, apparently taken aback by Justice Antonin Scalia’s statement that Section 5 is a “perpetuation of racial entitlement,” put the question to Shelby County’s lawyer.

“Do you think that the right to vote is a racial entitlement in Section 5?” she asked Rein. When he dodged, she asked him again: “I asked a different question. Do you think Section 5 was voted for because it was a racial entitlement?” He dodged again.

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July 29, 2012 · 11:21 AM

Scalia Suggests ‘Hand-Held Rocket Launchers’ Are Protected Under Second Amendment

It’s time for wacky Supreme Court Justice Antonin Scalia to step down.  There is a possibility that the onset of dementia may have taken over his already depraved mind.

This is yet one more important reason to vote wisely.  Whichever candidate you choose to vote for, know that he will probably pick at least two SCOTUS candidates in the next four years.  In my opinion, the ideology of the candidates will reflect whether the Court will remain staunchly conservative or tip the scales to a more progressive Court.

Elections matter and they DO have consequences.

Think Progress

This morning on Fox News Sunday, Justice Antonin Scalia reiterated just how extremely his Constitutional originalism can be applied. Referring to the recent shooting in Aurora, CO, host Chris Wallace asked the Supreme Court Justice about gun control, and whether the Second Amendment allows for any limitations to gun rights. Scalia admitted there could be, such as “frighting” (carrying a big ax just to scare people), but they would still have to be determined with an 18th-Century perspective in mind. According to his originalism, if a weapon can be hand-held, though, it probably still falls under the right o “bear arms”:

WALLACE: What about… a weapon that can fire a hundred shots in a minute?

SCALIA: We’ll see. Obviously the Amendment does not apply to arms that cannot be hand-carried — it’s to keep and “bear,” so it doesn’t apply to cannons — but I suppose here are hand-held rocket launchers that can bring down airplanes, that will have to be decided.

WALLACE: How do you decide that if you’re a textualist?

SCALIA: Very carefully.

Watch it…

Scalia’s across-the-board defense of weapon-carrying laws is not new, having been at the heart of his majority opinion in District of Columbia v. Heller, which protected an individual’s right to possess firearms. However, his nonchalant suggestion that private citizens could legally carry rocket launchers so long as they’re “hand-held” suggests just how willing he is to protect an armed nation.

Such originalism is a dangerous distortion of 21st-Century reality. There is no conceivable way to apply the Founding Fathers’ understanding of a  ”well-regulated militia” armed with slow-to-load, hard-to-aim muskets to today’s weapon technology. Arguably, the full extent of alleged gunman James Holmes’ munitions could have easily decimated an entire brigade of musketeers before they’d even loaded their first ball.

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January 25, 2012 · 5:01 AM

Scalia: Blame Congress For My Decision To Turn Campaign Finance Into The Wild West

Think Progress

Two years ago, Justice Scalia cast one of the five votes necessary to unleash unlimited corporate money on American democracy in the Supreme Court’s egregious Citizens United decision. Yet, at a panel in South Carolina this weekend, Scalia tried to lay the blame for the absurd campaign finance system he created at everyone’s feet but his own:

Super PACs have raised more than $30 million just three races into the 2012 presidential race, according to the website opensecrets.org, run by The Center for Responsive Politics. TV advertising alone in South Carolina, which is voting Saturday, is estimated at $12 million, or nearly $27 per voter when calculated using the 2008 Republican primary turnout numbers. [...]

Scalia said the blame for this type of system shouldn’t fall on the Supreme Court, which he said decides merely whether the system is legal under the U.S. Constitution. Instead, he said the ones who have to change things are the politicians who created the system and the voters who often reward the candidates who spend the most money.

“If the system seems crazy to you, don’t blame it on the court,” Scalia said, during a discussion in front of South Carolina lawyers that lasted for more than an hour.

Scalia’s attempt to shift blame is, frankly, ridiculous. While America’s pre-Citizens Unitedcampaign finance laws were far from perfect, they were at least adequate to prevent a handful of corporations from buying and selling elections. Congress passed a ban on corporate money in politics 65 years ago. The Supreme Court, with Scalia casting the deciding vote, killed that ban. If it wasn’t for the Supreme Court, the ban would still be in place.

Moreover, while Citizens United is best remembered for opening the floodgates to corporate money in politics, it also led to the creation of “Super PACs” which allow wealthy individuals and corporations to spend unlimited sums of money on shadow campaigns intended to elect particular candidates. Shortly after Citizens United was handed down, a key lower court decisionused it to declare so-called “independent expenditures” a free for all for the very wealthy. Billionaires are still forbidden from giving unlimited money to a campaign, but donations to “independent” groups such as Newt Gingrich or Mitt Romney’s Super PAC are entirely unbound.

To the extent that Citizens United still allows some leeway to regulate campaign finance, the fact that Congress has not done anything to enact new regulation after the Supreme Court blew our existing system up can be explained with just one chart:

That’s the top 20 spenders on the 2012 election — 17 of whom are conservatives or Republicans. In other words, Scalia’s action in Citizens United doesn’t just mean a flood of corporate and other money, it means that this money overwhelmingly favors one political party. Republican lawmakers are more than smart enough to figure this out, and that gives them all the incentive they need to block any attempt to fix the mess Citizens United created.

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November 15, 2011 · 1:26 AM

Scalia and Thomas dine with healthcare law challengers as court takes case

The Supreme Court of the United States has decided to hear a challenge to the POTUS’ Health Care Law.  Having said that, what the hell are Justices Scalia and Thomas doing dining with the probable attorney who will argue the case against the Health Care law?

They don’t seem to care about the appearance of impropriety anymore.  When did we fall down the rabbit hole?   Was it after Bush v Gore or was it after Citizens United?

The Los Angeles Times

The day the Supreme Court gathered behind closed doors to consider the politically divisive question of whether it would hear a challenge to President Obama’s healthcare law, two of its justices, Antonin Scalia and Clarence Thomas, were feted at a dinner sponsored by the law firm that will argue the case before the high court.

The occasion was last Thursday, when all nine justices met for a conference to pore over the petitions for review. One of the cases at issue was a suit brought by 26 states challenging the sweeping healthcare overhaul passed by Congress last year, a law that has been a rallying cry for conservative activists nationwide.

The justices agreed to hear the suit; indeed, a landmark 5 1/2-hour argument is expected in March, and the outcome is likely to further roil the 2012 presidential race, which will be in full swing by the time the court’s decision is released.

The lawyer who will stand before the court and argue that the law should be thrown out is likely to be Paul Clement, who served as U.S. solicitor general during the George W. Bush administration.

Clement’s law firm, Bancroft PLLC, was one of almost two dozen firms that helped sponsor the annual dinner of the Federalist Society, a longstanding group dedicated to advocating conservative legal principles. Another firm that sponsored the dinner, Jones Day, represents one of the trade associations that challenged the law, the National Federation of Independent Business.

Another sponsor was pharmaceutical giant Pfizer Inc, which has an enormous financial stake in the outcome of the litigation. The dinner was held at a Washington hotel hours after the court’s conference over the case. In attendance was, among others, Mitch McConnell, the Senate’s top Republican and an avowed opponent of the healthcare law.

The featured guests at the dinner? Scalia and Thomas.

It’s nothing new: The two justices have been attending Federalist Society events for years. And it’s nothing that runs afoul of ethics rules. In fact, justices are exempt from the Code of Conduct that governs the actions of lower federal justices.

If they were, they arguably fell under code’s Canon 4C, which states, “A judge may attend fund-raising events of law-related and other organizations although the judge may not be a speaker, a guest of honor, or featured on the program of such an event.“

Nevertheless, the sheer proximity of Scalia and Thomas to two of the law firms in the case, as well as to a company with a massive financial interest, was enough to alarm ethics-in-government activists.

“This stunning breach of ethics and indifference to the code belies claims by several justices that the court abides by the same rules that apply to all other federal judges,” said Bob Edgar, the president of Common Cause. “The justices were wining and dining at a black-tie fundraiser with attorneys who have pending cases before the court. Their appearance and assistance in fundraising for this event undercuts any claims of impartiality, and is unacceptable.”

Scalia and Thomas have shown little regard for critics who say they too readily mix the business of the court with agenda-driven groups such as the Federalist Society. And Thomas’ wife, Ginni, is a high-profile conservative activist.

Moreover, conservatives argue that it’s Justice Elena Kagan who has an ethical issue, not Scalia and Thomas. Kagan served as solicitor general in the Obama administration when the first legal challenges to the law were brought at the trial court level. Her critics have pushed for Kagan to recuse herself from hearing the case, saying that she was too invested in defending the law then to be impartial now. Kagan has given no indication she will do so.

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February 23, 2011 · 1:17 AM

Justice Clarence Thomas’ Silence Unmatched for 40 Years

I often wonder what this man is hiding?  I was discussing Thomas with a friend yesterday and we both agree that during his confirmation hearing the GOP senators knew he was “guilty as charged” in the Anita Hill brouhaha, yet did everything in their power to destroy her reputation while allowing the character flawed Thomas to pass the confirmation hearing with a 52–48 vote on October 15, 1991.

One of the main senators that stood out in those hearings was Senator Orin Hatch.  His treatment of Ms. Hill was a disgrace.  The entire proceeding was a disgrace.

I truly think Justice Thomas is unqualified to participate as a justice in the highest court in the land.

CBS News

Supreme Court Justice Clarence Thomas celebrated an unusual anniversary today: It’s been five years since he’s asked a question during oral arguments.

Over the years Thomas has read opinions from the bench, but the last time he spoke up spontaneously during an exchange among the justices and lawyers was in February 2006.

His silence during questioning has sparked debate among court watchers over whether a justice should participate in oral arguments.

Some say that the hearings are largely ceremonial, but others see the opportunity to engage in a public dialogue with lawyers on both sides of a case as a crucial tool for justices to try to persuade one another on a matter of law.

While the court does not have official rules mandating the role of each justice during oral arguments, tradition holds that participation is the norm.

“No single justice has gone even one full term without asking a question in the last 40 years,” said Timothy R. Johnson, professor of political science at the University of Minnesota.

Johnson, who has studied the issue for an upcoming book, said that on average Justice Antonin Scalia is the most verbose of the justices, speaking about 27 times per argument session. Compare that to Justice Thomas, who speaks on average almost zero.

Thomas has said that he goes into the oral argument sessions knowing how he will decide, a case so he doesn’t ask questions.

“So why do you beat up on people if you already know … [the outcome of the case]? I don’t know because I don’t beat up on them. I refuse to participate. I don’t like it, so I don’t do it,” he said in 2009, according to The Associated Press.

Although Thomas last spoke in 2006, his 2002 comments during oral arguments on a case about a law banning cross burning are perhaps those most remembered for the stir they created.

He told a government lawyer that he might be “understating the effects of the burning cross,” which stunned those in the audience who were surprised to hear the justice speak up so passionately on the issue.   Continue…

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February 4, 2011 · 5:26 PM

Justice Thomas’s wife now lobbyist

Here’s another example of the “in your face” violation of ethics that Justices Scalia, Roberts and Thomas frequently toss at their critics.   The SCOTUS does not have oversight on their Justices.  I think it’s about time an oversight committee was formed.

Clearly Supreme Court cases have been influenced by their pandering and consorting with the likes of the Koch brothers and others.  In my opinion this behavior is an outrage.

Now Mrs. Thomas is a part of a lobbying firm to help with “governmental affairs” and get this: political donation strategies.   The Citizens United case entailed the “free speech aspect of “political donations”! 

If no one  about their behavior, then no one is listening.  I recommend reading the entire Politico article.

Politico

She started as a congressional aide in the 1980s, became a midlevel Republican operative, then briefly left politics, reemerging in 2009 as founder of a tea party group before stepping down amid continued questions about whether her actions were appropriate for the spouse of a Supreme Court justice.

Now, Virginia “Ginni” Thomas, wife of Justice Clarence Thomas, has recast herself yet again, this time as the head of a firm, Liberty Consulting, which boasts on its website using her “experience and connections” to help clients “with “governmental affairs efforts” and political donation strategies.

Thomas already has met with nearly half of the 99 GOP freshmen in the House and Senate, according to an e-mail she sent last week to congressional chiefs of staff, in which she branded herself “a self-appointed, ambassador to the freshmen class and an ambassador to the tea party movement.”

But her latest career incarnation is sparking controversy again.

Thomas’s role as a de facto tea party lobbyist and — until recently — as head of a tea party group that worked to defeat Democrats last November “show a new level of arrogance of just not caring that the court is being politicized and how that undermines the historic image of the Supreme Court as being above the political fray,” said Arn Pearson, a lawyer for Common Cause, the left-leaning government watchdog group.

More…

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January 4, 2011 · 3:41 AM

Scalia: Women Don’t Have Constitutional Protection Against Discrimination

Once again, Justice Antonin Scalia appears incourrigible in his delusional view of American civil liberties…

Huffington Post

The equal protection clause of the 14th Amendment to the U.S. Constitution does not protect against discrimination on the basis of gender or sexual orientation, according to Supreme Court Justice Antonin Scalia.

In a newly published interview in the legal magazine California Lawyer, Scalia said that while the Constitution does not disallow the passage of legislation outlawing such discrimination, it doesn’t itself outlaw that behavior:

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.

For the record, the 14th Amendment’s equal protection clause states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” That would seem to include protection against exactly the kind of discrimination to which Scalia referred.    More…

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December 29, 2010 · 5:39 AM

Antonin Scalia, R-Supreme Court, Joins Michele Bachmann’s New Caucus

I already addressed this issue when Justices Scalia and Thomas were attendees at a conservative event, which appeared to be squarely outside the realm of Judicial decor to say the least and at best actionable in terms of possible impeachment. 

Not to mention Scalia’s hunting trip with then Vice President Cheney just three weeks after the court agreed to take up the vice president’s appeal in lawsuits over his handling of the administration’s energy task force.   Now this…

The Nation

Ten years ago, in a display of judicial activism unprecedented in American history, Justice Antonin Scalia engineered the Bush-v-Gore ruling that handed the presidency to a Republican who had lost the nation’s popular vote and was threatened with defeat in a Florida recount. Scalia’s moves removed any serious doubt about his partisan preference.

Now, however, the justice has removed any doubt about his ideological preference within the Republican Party, with an announcement that he will be meeting with—and, undoubtedly, providing talking points for—Michele Bachmann’s Tea (Party)-stained “Constitutional Conservative Caucus.”

Scalia, the most determined activist on a high court that has been redefined by its results-oriented conservative majority, will deliver the inaugural address to the right-wing representatives as part of a speaker series that features no less a constitutional scholar than Fox News host Sean Hannity.

Sergio Gor, a spokesman for Bachmann, revealed Tuesday that his boss—a Minnesota Republican so extreme in her views that her fellow Republicans rebuffed her run for the chairmanship of the House Republican Caucus—has been meeting privately with Scalia. It was at one such session that the congresswoman invited the justice to address her new group.   More…

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December 6, 2010 · 2:22 AM

Bush V. Gore’s Disgrace Deepens

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Almost everyone agrees that the Supreme Court’s decision in Bush v Gore was a disasterous one.  The Court even placed a caveat in the decision telling the world that the decision can never be used as precedent in any other case.   In my opinion it’s because they knew they were essentially committing an injustice on the American people.

The Daily Beast

The Supreme Court’s granting Bush the victory looks even worse today than it did 10 years ago, says Eric Alterman—even if historians weren’t debating whether George W. Bush was the worst president ever or just since Grant.

Passions are supposed to recede with time as wisdom and maturity, but the Supreme Court’s willingness to hand the presidency to George W. Bush looks even worse than it did 10 years ago, when passions flared and pundits feared for the future of the republic. The obvious problem with making Bush president was the fact of the Bush presidency, a catastrophe in so many directions at once that presidential historians argue today about whether Bush was the worst president in American history or merely the worst since Grant, Buchanan, or Johnson (Andrew, not Lyndon).

[...]

The court did not really even try to hide its partisan agenda. It insisted that its decision not be employed as precedent and released it a mere two hours before Florida’s “safe harbor” deadline of Dec. 12, thereby making it impossible for the Gore team to contest. (It would take longer than two hours just to read the decision and its many dissents.) Writing bravely in The Weekly Standard, John DiIulio Jr. warned that “the arguments that ended the battle and ‘gave’ Bush the presidency are constitutionally disingenuous at best. They will come back to haunt conservatives and confuse, if they do not cripple, the principled case for limited government, universal civic deference to legitimate, duly constituted state and local public authority.”

The court has not cited Bush v. Gore in a single decision over the past decade. (Justice Antonin Scalia frequently urges audiences to just “get over it.”)

DiIulio’s predictions have failed to come true only because conservatives have proved unembarrassable. As Elspeth Reeve, writing in The Atlantic Wire, points out, the court has not cited Bush v. Gore in a single decision over the past decade. (Justice Antonin Scalia frequently urges audiences to just “get over it.”) Meanwhile, Jeff Toobin, notes in The New Yorker that since Bush v. Gore, the court has pretty much abandoned judicial conservatism entirely. The “signature of the Roberts Court has been its willingness, even its eagerness, to overturn the work of legislatures.” The Roberts Court has struck down gun control laws across the country, gutted campaign-finance law, and will likely tackle Obama’s health care law with “a similar lack of humility,” Toobin writes.

Continue reading here…

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November 16, 2010 · 12:11 AM

Scalia Jumps On The Anti-Seventeenth Amendment Bandwagon

As I’ve mentioned in an earlier post, we have a real problem with Supreme Court Justices who have ignored the canons of Judicial “decor” and have become totally political while sitting on the Supreme Court Of The United States…

Think Progress

One of the most bizarre developments of the last several months is the growing right-wing calls to repeal the Seventeenth Amendment, the provision of the Constitution that empowers voters — as opposed to state legislatures — to elect their senators. On Friday, Supreme Court Justice Antonin Scalia joined Senator-elect Mike Lee (R-UT) and Gov. Rick Perry (R-TX) in opposing the century-old amendment:

Scalia called the writing of the Constitution “providential,” and the birth of political science.

“There’s very little that I would change,” he said. “I would change it back to what they wrote, in some respects. The 17th Amendment has changed things enormously.”

That amendment allowed for U.S. Senators to be elected by the people, rather than by individual state legislatures.

“We changed that in a burst of progressivism in 1913, and you can trace the decline of so-called states’ rights throughout the rest of the 20th century. So, don’t mess with the Constitution.“

Justice Scalia’s use of extremist “states’ rights” rhetoric is an ominous sign. Although Scalia has a well-deserved reputation as an ultra-conservative, his record on federal/state power issues is surprisingly sensible. Indeed, his concurring opinion in Gonzales v. Raich could have been written as a blueprint for why President Obama’s Affordable Care Act is constitutional.

It’s puzzling why Scalia, or anyone else for that matter, would suddenly take a swipe at this entirely uncontroversial amendment — although the Wonk Room offers one possible explanation. Before the Seventeenth Amendment was enacted, corporate interest groups were able to lean on state lawmakers and thus effectively buy U.S. Senate seats. In other words, repealing the Seventeenth Amendment “would be like Citizens United on steroids.”

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