Saturday, January 21, 2017

Want Scalia-type Justices? Really? (Part 4: Punishment)

Here's wishing the newly inaugurated President lots of success in doing what's best for our country.

If Scalia's view of gay rights--"homosexual sodomy," as he insisted on putting it--was anachronistic and offensive, his positions on crime and punishment were downright medieval.

Yes, this may sound like over-the-top criticism. But even self-proclaimed Scalia admirers, at least most of them, would find the positions he advocated to be startling. Indeed, very few Scalia enthusiasts are likely aware of his actual record on legally acceptable punishment. They are almost certainly unaware of his extreme views on what constitutes "cruel and unusual."

Let's review Scalia's actual record. The positions he actually advocated. And again, let's consider whether the supposed Scalia fans--the newly inaugurated President, his prospective Supreme Court nominees, and the Senators who will vote on confirmation--are really fans of that, or would be willing to admit it.

Scalia insisted that excessive punishments, no matter how extremely excessive, were perfectly constitutional. In fact, he insisted that the Constitution's "cruel and unusual" prohibition only prohibited "flaying alive" and similarly barbaric punishments. Nothing else.

Yes, you read that correctly. (I wish I were kidding.)

Let's first look at Scalia's major judicial writing on "cruel and unusual punishments."

Harmelin v. Michigan (1991)
This case involved a state law that mandated life imprisonment, without the possibility of parole, for possession of a large quantity (6.5+ grams = ~1 1/2 pounds) of cocaine. By a 5-4 vote, the Court upheld the sentence.
Justice Scalia wrote the opinion for the Court's majority.

To be precise, however, only 6 paragraphs of Scalia's 36 page writing in Harmelin constituted the majority opinion. As for the rest of what Scalia wrote, only Justice Thomas signed on.

Of the remaining 7 Justices on the Court, 3 voted in a separate concurring opinion written by Justice Kennedy. They concludd that the life sentence for that drug crime was not too harsh. Together with Scalia and Thomas, that made a majority of 5 votes to uphold the sentence, for one reason or another. The remaining 4 Justices dissented. They argued that that the sentence was too harsh. In sum, 7 of the 9 Justices--the 3 who concurred in the result and the 4 who dissented--disagreed vehemently with all but a few paragraphs of Scalia's 36 page opinion.

Why? What was it that Scalia wrote in those 36 pages that 7 of the 9 Justices would not join?

Other than the 6 paragraphs that garnered a 5-4 majority, Scalia devoted his 36 page opinion to his view that harsh sentences, regardless of how excessive, did not violate the Constitution. Yes, the 8th Amendment explicitly prohibits "excessive bail" and "excessive fines." But as for "punishments," the 8th Amendment only prohibits what is "cruel and unusual." And in Scalia's view, even the most excessive punishments are not covered by "cruel and unusual."

Here are his own words:
[T]here is no cause to believe that the provision was meant to exclude the evil of a disproportionate punishment. [The opposite] argument has force only for those who believe that the Constitution prohibited everything that is intensely undesirable -- which is an obvious fallacy.
[My emphasis added. ("No cause" at all? And an "obvious" fallacy?)]
He further explained his rather stingy reading of the 8th Amendment's prohibition:
[A] disproportionate punishment can perhaps always be considered "cruel," but it will not always be (as the text also requires) "unusual."
He then argued that the Court's previous decision on the subject, which had held exactly the opposite of his view,
was simply wrong; the Eighth Amendment contains no proportionality guarantee.
[T]here is no proportionality requirement in the Eighth Amendment.
[My emphasis added.]

Along the way, in support of his position, Scalia cited with approval a decision that upheld a sentence of 40 years imprisonment for the possession and sale of marijuana. He also approvingly cited another decision that upheld a life sentence for a third minor offense--i.e., the fraudulent use of a credit card to obtain a mere $80 worth of purchases. Scalia even refused to conced that a life sentence imposed for a parking violation would be unconstitutional. Instead, he insisted that such extremely excessive punishments would be rare and that, even if they were adopted, the choice of the voters or legislators should be respected.

Again, 7 of the other Justices refused to join those sections of Scalia's opinion in Harmelin and would only sign onto a different 6 paragraphs of what he wrote. Justice Thomas was alone in agreeing with Scalia's entire 36 pages.

So, one might ask, what, according to Scalia, does the 8th Amendment prohibit? He did discuss that in exhausting detail in that 36 page opinion. The "cruel and unusual" prohibition, in his view, prohibited "only certain modes of punishment." He repeated that several times: "the clause only outlawed certain modes of punishment."

So what exactly are those "certain modes" that are prohibited by the Constitution? Scalia explained what he meant by quoting some early 19th century commentators. Those commentators had written that the "cruel and unusual" prohibition
'would not tolerate the use of the rack or the stake, or any of those horrid modes of torture, devised by human ingenuity for the gratification of fiendish passion.'
[And]
'various barbarous and cruel punishments inflicted under the laws of some other countries...furnish sufficient reasons for this express prohibition. Breaking on the wheel, flaying alive, rending assunder with horses, various species of horrible tortures inflicted in the inquisition, maiming, mutilating and scourging to death, are wholly alien to the spirit of our humane general constitution.'
[My emphasis added.]
One might well agree with those commentators. The "cruel and unusual" prohibition would certainly seem, at the very least, to prohibit such punishments. But according to Scalia in Harmelin, such "'horrid modes" were the only punishments that were prohibited by the 8th Amendment. Not to be misunderstood, Scalia proceeded to dismiss the views expressed by other commentators and in judicial decisions of that same time that "cruel and unusual" referred to more than that. Those contrary views, according to him, were either wrong or irrelevant.

Now, someone might suggest that Scalia was overstating his position. Maybe he was only emphasizing his real point that the Constitution does not prohibit punishments just because they are excessive. Well, no. Scalia later made clear that he meant exactly what he wrote in Harmelin. For example, there was the lethal injection case 17 years later.

Baze v. Rees (2008)
In this case, a 7-2 majority of the Court upheld the lethal injection procedure used by Kentucky and other states. Writing for the Court, Chief Justice Roberts explained that punishment would be unconstitutionally "cruel and unusual" if it presented an "objectively intolerable risk" of "severe pain," and if that pain could be "significantly reduce[d]" by a "feasible, readily implemented" alternative. In short, where there was no "legitimate penological justification for adhering" to that currently used painful punishment.

Justices Scalia and Thomas agreed that the lethal injection at issue was valid. But they refused to join the Chief Justice's opinion. They emphatically rejected his formulation for "cruel and unusual."

Scalia, and Scalia alone, joined Thomas's separate concurring opinion to express their shared view about the 8th Amendment. The "cruel and unusual" prohibition only prohibits punishments with
the defining characteristic of burning at the stake, disemboweling, drawing and quartering, beheading, and the like...[that] were designed to inflict torture as a way of enhancing a death sentence; [that] were intended to produce a penalty worse than death.
[My emphasis added.]
That's right. Just like Scalia had written in Harmelin, the Constitution only prohibits punishments like  "maiming, mutilating" and "drawing and quartering, beheading, and the like." Today, with Scalia gone, Thomas is the only Justice remaining who embraces that extremely constricted view of "cruel and unusual punishments."

Do the avowed Scalia admirers, including the supposed Scalia-types that are being touted as prospective Supreme Court nominees, share that extremely cramped view of the 8th Amendment? Are they even aware that Scalia had such a view?

Would they--the new President, the Senators, and the nominees--be willing to admit and defend that view at Supreme Court confirmation hearings? Excessive punishments, even extremely excessive ones--fine? Painful punishments, even unnecessarily painful, except for disemboweling and the like--fine? I guess we shall soon see.

Before concluding, mention should be made of another one of Scalia's view, expressed in Atkins v. Virginia (2002), about executing the severely mentally disabled. By a 6-3 vote, the Court held in that case that the death penalty imposed on a defendant who had a 59 IQ was unconstitutional. Scalia disagreed. He joined the dissenting opinion of Chief Justice Rehnquist disagreeing with the Court's decision. But Scalia also wrote a separate opinion himself to add his own protest that
mental retardation does not render the offender morally blameless [and]
that society’s moral outrage sometimes demands execution of retarded offenders.
Then there's the related matter of torture. Scalia repeatedly insisted that government's torturing of an inmate, a prisoner, or a detainee does not violate the Constitution. His reasoning? The Constitution only prohibits "cruel and unusual punishment." So unless torture is an explicit part of a judicially imposed criminal sentence, it is not per se "punishment" and thus, according to Scalia, it is not constitutionally prohibited. (Once more, not kidding.)
(See e.g., Antonin Scalia's Case for Torture, The Atlantic [2014]; Justice Scalia on the Record, 60 Minutes' Lesley Stahl Interview [2008].)

Then there's the execution of someone who is innocent. Scalia actually dissented when the Court ordered a federal trial judge to consider a substantial claim of innocence by a murder defendant who might have been wrongfully convicted and sentenced to death. (In re Davis [2009].) Scalia-- in an opinion joined only by Thomas-objected to the Court's ruling. Why? This is what he wrote:
This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.
That position was nothing new or out of the ordinary for Scalia. It was actually just a repetition of a view  he had advocated for a long time. So, for example, 16 years earlier, in Herrera v. Collins (1993), he wrote a separate concurring opinion to express his view that:
There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.
Well, we could go on. But hopefully the point is well made. Scalia had some....uh...very curious, even frightening, views about punishment and what the Constitution permitted. Do his self-proclaimed admirers really admire those views? Really agree with them? Are they even aware of his views? Well, that is Scalia's actual record.

Next in this series, we'll take a look at yet another aspect of Scalia's actual record.

Monday, January 16, 2017

Gov. Cuomo Picks Rowan Wilson for the High Court

Governor Andrew Cuomo announced today that he has nominated Rowan Wilson for the Court of Appeals, New York State's highest Court. If confirmed by the state Senate, Wilson will fill the vacancy created by the departure of Judge Eugene Pigott--the latest victim of New York's (moronic) mandatory age-70 retirement for Court of Appeals Judges.
With this nomination, Cuomo will have selected the entire membership of the 7-Judge Court. His father, Mario Cuomo, was able to do the same thing while he was Governor. Like his father, the current Governor has created a very diverse Court. When Wilson is confirmed, there will be 2 African-Americans on the Court for the first time in its history--which makes this nomination seem quite fitting for Martin Luther King Day.

(And Wilson's confirmation is a near certainty. That is so not only because he is superbly qualified by education, experience, and other measurable factors--e.g., Harvard educated, senior litigation partner at Cravath, and admirable pro bono work . But also because the state Senate has typically been little more than a rubber stamp for the various Governors' nominations since the appointment process was adopted 40 years ago.)

In addition to having 2 African-American Judges (the other being Judge Sheila Abdus-Salaam), the entirely Andrew Cuomo-appointed Court of Appeals will have:
2 Hispanic Judges (Judges Jenny Rivera and Michael Garcia),
4 women (Chief Judge Janet DiFiore and Judges Rivera, Abdus-Salaam, and Leslie Stein),
2 Upstaters (Judges Stein [the Capital Region] and Eugene Fahey [Buffalo]),
2 from New York City (Judges Rivera and Abdus-Salaam [Also, Judge Garcia was born in the City and nominee Wilson works there.]),
2 who live just north of the City in Westchester County (Chief Judge DiFiore and Judge Garcia),
1 who lives on Long Island (nominee Wilson),
3 who were appellate judges (Judges Abdus-Salaam, Stein, and Fahey),
4 with experience as trial judges (Chief Judge DiFiore and Judges Abdus-Salaam, Stein, and Fahey),
2 from private practice (Judge Garcia and nominee Wilson),
2 prosecutors who ran prosecutorial offices (Chief Judge DiFiore [Westchester County District Attorney] and Judge Garcia [U.S. Attorney for the Southern District of New York]),
1 academic (Judge Rivera),
6 different law schools (St. John's [DiFiore], NYU [Rivera], Columbia [Abdus-Salaam], Albany [Stein and Garcia], SUNY Buffalo [Fahey], and Harvard [Wilson]),
1 Italian-American (Chief Judge DiFiore), 1 Puerto Rican-American (Judge Rivera), 1 Jewish-American (Judge Stein), 1 Irish-American (Judge Fahey),
etc., etc., etc.
[BTW, contrast that diversity with that of the U.S. Supreme Court.]

But in one area there is little diversity: political party. With Judge Pigott gone, and Rowan Wilson nominated and confirmed, there will be 6 democrats and only 1 Republican on the Court. Governor Andrew Cuomo's 7 nominees to fill New York’s high Court have included just 1 Republican, Judge Michael Garcia. Although the Governor, like his father, has prized diversity in his nominations, he has differed with his father in this particular regard.

Democratic Governor Mario Cuomo actually appointed several Republicans to the Court. Judges Richard Simons, Stewart Hancock, and Howard Levine, as well as Chief Judge Sol Wachtler, were all Republicans selected by the first Governor Cuomo. Indeed, this will be the very first time in the history of the New York Court of Appeals since the appointment system was adopted 40 years ago, that there will be only 1 Republican on the 7-Judge Court.

This is not to say, however, that Governor Andrew Cuomo’s nominations have been driven by partisan ideology. In fact, it would be nothing short of blind political partisanship to charge that he has created some ultra-liberal Democratic Court. No objective observation of the current Court could render such a conclusion. His nominations and the resulting Court comprise a varied ideological spectrum. His Democratic appointees are hardly of one stripe.

Nor have Cuomo’s appointees been sharply divided along party lines—not at all like the Supreme Court. On the contrary, any serious analysis of the current Court’s voting and decisional record would reveal a full and varied liberal-to-conservative spectrum. The Cuomo appointees make up an ideologically—even if not political party—diverse Court. It is ideologically varied and diverse. It is not sharply split into competing left and right wings.

Yes, Judge Jenny Rivera’s record can fairly be characterized as liberal. And Judge Michael Garcia’s as conservative. But this is not a Court where half the Judges consistently align on the liberal side of the issues against the other half of the Judges consistently aligning with the conservative side. No, this is nothing like the Supreme Court.

Again, yes, some of the Judges have voting records that can fairly be said to be more liberal than others, and some of have records that are more conservative. But this Court, despite being lopsidedly Democratic in political party membership, has no staunchly liberal versus staunchly conservative divide that consistently splits the Judges along those lines.
(The voting and decisional records of the current Court have been examined in some detail on New Court Court Watcher. See e.g., Observations.)

IAE, those of us who watch this Court—and especially those of us who have had the privilege of working at the Court and take great pride in its historically being one of the nation’s finest institutions of government—look forward to the confirmation proceedings and to Rowan Wilson joining Chief Judge DiFiore and her colleagues on this very fine bench.

For more about Rowan Wilson:


Thursday, January 12, 2017

Want Scalia-type Justices? Really? (Part 3: Discrimination Against Gays & Lesbians)

Let's continue considering "Scalia-type Justices--Really?"
But first, wishing all a happy and healthy 2017. I'm back from Christmas break--in Scottsdale, which I love almost as much as upstate New York--and have finished grading exams. So it's back to addressing some important issues facing the nation and this state in NYCW.

We've been considering whether self-proclaimed Scalia admirers really know and admire his actual record. In the last post, we asked whether they really know and admire his actual record on equal protection for women--he regularly voted against it, he approved older decisions that ruled against it, and he stated publicly that he didn't believe the Constitution required it.

Do self-proclaimed Scalia admirers really want President-elect Trump to appoint Justices who agree with that? That is Scalia's record. Not someone's personal view or conjecture about it.

Now let's continue.

Photo: Atlantic Wire
If Scalia's record was one of contempt for the notion of equal constitutional rights for women, it was one of outright hostility towards gay rights and any constitutional protection for gays and lesbians. (One could well extrapolate to his likely positions on LGBT rights generally, but let's stick here to the record of his that we do have.)

Scalia never supported equal protection or due process rights for gays and lesbians. More than that, he explicitly did support and approve animosity and discrimination against them.

Let's review each of the relevant cases in which Scalia participated. First, here are those cases in which he wrote an opinion:

Romer v. Evans (1996)
This case involved a Colorado law that prohibited any local law that sought to protect gays and lesbians from discrimination. The Supreme Court ruled that the state law was unconstitutional. By singling out a group to be denied legal protection, the law violated the constitutional guarantee of equal protection.
Scalia dissented.
In Scalia's view, the state law was an appropriate disapproval of homosexuality. In his own words, the law was a "constitutionally permissible" and "eminently reasonable" effort by the state's citizens--who are "entitled to be hostile toward homosexual conduct"--to deny protection "to those with a self-avowed tendency or desire to engage in the conduct." [My emphasis added.]

Lawrence v. Texas (2003)
In this landmark gay rights case, the Court ruled that laws that made same-sex intimacy a crime were unconstitutional.The case specifically involved a Texas law that criminalized "deviate sexual intercourse," defined in part as sexual activity "with another individual of the same sex." The Court held that there was no legitimate government purpose that justified prohibiting and punishing the personal intimacy targeted by the law.
Scalia dissented.
In Scalia's view, it was perfectly permissible to make "homosexual sex" a crime. According to him, the law was a legitimate expression that such conduct is "immoral and unacceptable." He protested that "homosexual sodomy is not a fundamental right" and, therefore, that it could legitimately be made a crime just like "fornication, bigamy, adultery, adult incest, bestiality, and obscenity." [My emphasis added.]

U.S. v. Windsor (2013)
In this case, the Court invalidated that part of the so-called Defense of Marriage Act (federal DOMA) that denied federal marriage benefits to legally married same-sex couples. The Court explained that a "bare congressional desire" to treat "a politically unpopular group" differently was not a legitimate justification for denying them benefits that are available to other legally married couples.
Scalia dissented.
In Scalia's view, DOMA was a valid defense of traditional marriage. He again complained, and claimed, that the majority had "declared a constitutional right to homosexual sodomy." Likewise, he again insisted that the Constitution "let['s] the People decide" whether or not to "enforce traditional moral and sexual norms." [My emphasis added.]

Obergefell v. Hodges (2015)
In yet another landmark gay rights case, the Court ruled that the right to marry may not be denied to same-sex couples. The Court explained that the right to marry is fundamental, that personal choices concerning marriage are part of constitutionally protected liberty, and that there is no legally relevant difference between same- and opposite-sex couples with respect to these matters.
Scalia dissented.
Scalia ridiculed the majority's "extravagant praise of liberty" that "robs the People" of  their right to pass the laws they choose. As with equal rights for women, he insisted that the issue of same-sex marriage was settled "[w]hen the Fourteenth Amendment was ratified in 1868." Although that amendment guarantees equal protection and liberty against state laws, Scalia argued that "every State limited marriage to one man and one woman" when the amendment was ratified, and because "no one doubted the constitutionality of doing so" at that time, "[t]hat resolves these cases." [My emphasis added.]

Two additional major gay rights cases deserve mention. Scalia did not author an opinion in these cases, but he did cast a vote:

Boy Scouts v. Dale (2000)
In this case, the Court held that New Jersey's anti-discrimination law--which among other classifications included sexual orientation--could not be applied to the Boy Scouts. According to the majority's opinion, the Boy Scouts' choice to exclude gays from leadership positions was an exercise of their constitutional "freedom of expressive association."
The dissenting Justices, on the other hand, argued that "eliminating discrimination is a compelling state interest" that justified enforcement of the state's law.
Not surprisingly, Scalia approved the disparate treatment of gays. He joined the majority and sided with the Boy Scouts against the state's prohibition of sexual orientation discrimination.

Christian Legal Society v. Martinez (2010)
This case involved a California state college that refused to recognize and fund a student organization that excluded all gay and lesbian students from membership. The Court upheld the college's non-discrimination policy, which it applied to all student groups, that membership must be open to all students.
The dissenting Justices, on the other hand, argued that the student group was rightfully exercising its constitutional freedom to express its view about sexual morality.
Again, not surprisingly, Scalia voted with the dissenters and, thus, as in every other case, he opposed the position for equal treatment of gays and lesbians.

Yes, in every one of these cases there were arguments and interests presented on both sides. In every case, there were precedential, historical, interpretive, and other policy and legally relevant support proffered for both sides. Indeed, that's the very reason such cases get to the Supreme Court. But in every case, no matter what the arguments or interests, Scalia adopted those against the rights of gays and lesbians.

When a state chose to prohibit local laws that protected gays and lesbians from discrimination, Scalia insisted that the Court should defer to the state's prerogative. But when states chose to actually prohibit such discrimination, he disregarded the supposed need to defer and sided against those state policies.

Regarding laws that criminalized same-sex intimacy and a law that denied government benefits to legally married same-sex-couples, he insisted that "homosexual sodomy" was not a constitutional right. But when confronted with anti-discrimination laws protecting gays and lesbians, he found fundamental rights to exclude them from the Boy Scouts and to exclude them from student organizations.

The inconsistencies in Scalia's legal positions abound. But there is one consistency that only deliberate blindness would fail to see. Scalia was utterly hostile to the protection of gays and lesbians from discrimination. In Scalia's view, such discrimination was perfectly reasonable and constitutionally justified.

To Scalia, the Constitution's guarantee of "equal protection" was to be read as "equal protection except for gays and lesbians, and [as we saw in the last post] except for women."

Once again: Scalia-admirers, do you really want Justices like that? Potential Trump nominees, do you really agree with Scalia on that? And one more question: Would you really be willing to say so when asked at a Senate confirmation hearing? I guess we shall see.


In the next post, we'll take a look at Scalia's positions on cruel and unusual punishment.

Friday, December 2, 2016

Want Scalia-type Justices? Really? (Part 2: Equal Rights for Women)

In the introductory post, I mentioned several areas of the law in which many of the self-proclaimed admirers of the late Justice Scalia are likely unfamiliar with his actual record, would likely be less admiring if they knew it, or, at the least, would likely express disagreement if they were confronted with it. This applies to both President-elect Trump and to those supposed "Scalia-types" on his list of possibilities for the Supreme Court. Among those areas of the law--and Scalia's record--let's begin with equal protection for women.

Surely, there are some absolute essentials we can all--hopefully--agree upon. Some bare basics of a free and just society. At the very very least, we should be able to agree that our judges believe in certain fundamental principles, that they are committed to them, and that they adhere to them in rendering decisions.

Equal treatment, for example. "Equal protection of the laws" is how the Constitution puts it, and guarantees it. At the very least, our judges should believe in that, be committed to that, and adhere to that.

To be sure, in specific cases, on specific issues, there are good faith disagreements as to what equal treatment entails. But--again hopefully--we can all agree that deliberate, harmful, anachronistic, discriminatory treatment of people based on irrelevant considerations should not be tolerated. Judges rendering decisions under the law should not tolerate it. Judges who, instead, actually endorse or embrace such discrimination are unworthy of their positions and, most certainly, ought not to sit on the nation's highest court.

So when the President-elect says that he admired Justice Scalia and will appoint Justices to the Supreme Court like him, and when other self-proclaimed Scalia admirers cheer, we ought to see what they are admiring and cheering about. Or whether they don't actually know what they are admiring and cheering.

Photo: Bill Pugliano
Getty Images
For instance, Scalia's record on discrimination. As with other issues mentioned in the introductory post, we will examine his actual record on discrimination. Then the question to be asked is, do his self-proclaimed admirers really admire that? Do they really want Justices who agree with Scalia on that? Justices who will vote like Scalia did on that ? Really?

Let's try equal protection for women. Not even issues as controversial as abortion rights. But basic protection of women from discrimination against them because they are women.

Scalia believed that women are not entitled to equal protection under the Constitution. That's right. Not entitled to equal protection. This isn't conjecture. He actually said so. He actually voted and wrote that way. That was his actual record both off and on the Court. Admirers of Scalia, do you really admire that? Really want Justices like that?

Here's what Scalia said a few years before he passed away, in an interview co-hosted by the California Lawyer and the University of California's Hastings College of Law:
Question: 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...So does that mean that we’ve gone off in error?
Scalia: Yes, yes. Sorry, to tell you that...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.

Scalia admirers, you really want Supreme Court Justices who agree with that? And potential Trump nominees, you really agree with that?

[Following considerable critical reaction to those unequivocal assertions of his, Scalia then equivocated. In an interview in New York magazine 2 years later: "No, you can’t treat women differently, give them higher criminal sentences. Of course not...The issue is not whether it prohibits discrimination on the basis of sex. Of course it does. The issue is, 'What is discrimination?If there’s a reasonable basis for not ­letting women do something."]

Lest Scalia's remarks in the California Lawyer interview be discounted as not what he really meant, he argued the same thing on numerous occasions. For example, there was Scalia's dissenting opinion in U.S. v. Virginia (1996). The Supreme Court ruled in that case that it was unconstitutional discrimination for women to be denied admission to the Virginia Military Institute. Scalia disagreed--the only Justice to do so, Republican or Democrat, conservative or liberal.

His disagreement? The majority was not "preserv[ing] our society's values regarding…equal protection." To be sure he was being clear, he cited older Supreme Court decisions that reflected the "values" that he believed should be "preserved." He cited favorably an older decision that upheld laws keeping women off jury rolls (Hoyt v. Florida [1961]), and another one that upheld laws prohibiting women from tending bar (Goesaert v. Cleary [1948]). The Court, in his view, should continue with such rulings.

Scalia-admirers, do you really want Justices like that? Potential Trump nominees, do you really agree with that?

Then there was his dissenting opinion in J.E.B. v. Alabama (1994). The Supreme Court in that case ruled that it was unconstitutional--a violation of equal protection--for the government's attorney to intentionally exclude potential jurors on the basis of their sex. Scalia disagreed with the majority that there was any problem with gender-based selection of jurors. Indeed, he belittled the majority for its "inspiring demonstration of how sternly we disapprove the male chauvinist attitudes of our predecessors," and for "pay[ing] conspicuous obeisance to the equality of the sexes."

Scalia-admirers, do you really want Justices who would approve "male chauvinist attitudes of our predecessors" in the law, and who would disapprove the constitutional "equality of the sexes?" Potential Trump nominees, do you really agree with Scalia on that?

There are abundant illustrations in Scalia's record of the same contempt for women's equality under the Constitution. He didn't believe in it. That's just fact. That's his actual record.

Scalia-admirers, do you really want Justices like that? Potential Trump nominees, do you really agree with that?

Next, Scalia's record on the treatment of gays and lesbians--and presumably his views on the entire range of LGBT issues. He was even more hostile!

Tuesday, November 22, 2016

Want Scalia-type Justices? Really?

Donald Trump
We've heard from President-elect Trump about how much he admired Justice Antonin Scalia. Since early in his campaign, he has repeated that he wants to appoint Justices like Scalia. Trump supporters, both in and out of government, have reacted with great enthusiasm.

To be sure, some actually know about Scalia's record. The Heritage Foundation and the Federalist Society presumably do. They are the two conservative organizations Trump has credited as sources for his list of potential nominees. And Trump has committed himself to choose from that list: "This list is definitive and I will choose only from it." (DONALD J. TRUMP FINALIZES LIST OF POTENTIAL SUPREME COURT JUSTICE PICKS, SEPTEMBER 23, 2016.)


Antonin Scalia
But how many of Trump's supporters and of the self-proclaimed Scalia admirers actually know much about Scalia's record? How much does Trump himself actually know? Perhaps even more critically, how much do those Senators, who now celebrate Trump's promise to appoint Scalia-like Justices, actually know? And how will they react if and when they are confronted by Scalia's actual record?

Beyond that, how will the supposed Scalia-admiring Trump nominee(s) themselves respond if and when confronted with Scalia's actual record? What about the public, if and when they learn about Scalia's actual record? How much will the supposed Scalia-admiring nominee(s) and Senators equivocate on their admiration if and when confronted by Scalia's actual record--especially if and when the prospect of a Scalia-like Justice becomes less popular among the public?

I'm referring to the body of his judicial work. His views on the most pressing constitutional issues of the day. The results he vigorously advocated. Those he fiercely condemned. His actual record.

His actual record, for example:
On freedom of religion. (A 2nd class constitutional right because of his--how else can I say it-- dishonest majority opinion involving a minority religion; ask any religious liberty scholar.)
Or search and seizure. (Not just stop and frisk, but government surveillance generally.)
Or cruel and unusual punishment. (Not just the death penalty, but barbaric, unnecessarily painful punishments.)
Or women's rights. (Not just abortion rights, but entitlement to equal protection.)
Or gay and lesbian rights. (Not just same-sex marriage, but any protection from discrimination.)
Etc., etc.
(We'll discuss each of these in the next post.)

Recall when the supporters of President Reagan's Supreme Court nominee Robert Bork were confronted with his actual record--his writings both on and off the bench. Bork's formerly strong support among the public, Reagan, and the Senate dissipated. Ultimately, of course, his nomination was defeated. A conservative jurist might well be appealing. But not one whose record, like Bork's, seemed to be--or was made to seem--downright reactionary.
(On a personal note, I got to know Judge Bork a bit the year I spent in Washington as a Supreme Court Fellow. I liked him very much and was sad to see him humiliated in defeat. I was not a fan of his record, but I was a fan of his.)

At least as much as Bork's, Scalia's record was downright reactionary. Call it originalist or textualist or traditionalist or constitutionalist or whatever adjective one might choose. Good, bad, or indifferent, it was reactionary.

Scalia wanted to take constitutional law back to 1787 when the Constitution was adopted, to 1792 when the Bill of Rights was approved, and 1868 when the 14th Amendment (inter alia , equal protection) was ratified. Perhaps he adopted this posture out of a sincere fidelity to his avowed view of the judicial role. Perhaps it was a convenient means to support the results he preferred to begin with. Whatever the truth of that, the positions he advocated on many of the most important constitutional issues of our time were downright reactionary.

But more to the point here, if and when the Senators and the public are confronted with Scalia's actual record--the reactionary results he preferred and positions he advocated--his supposed admirers may be less admiring and the supposed supporters of Scalia-like Justices less supportive. Yes, his positions on religious liberty, women's rights, search and seizure, cruel and unusual punishment, etc. His actual record with which the supposed Scalia-like Trump's nominee(s) and the supposed Scalia-admiring Senators should be confronted.

We'll take a survey of some of those positions advocated by Scalia--his actual record--in the next post.