There is no escaping the fact that Justice Scalia did more to harm this country than any other Supreme Court judge in history.
“The evil that men do lives after them; the good is oft interred with their bones.” —William Shakespeare
One of my favorite Warren Burnett (legendary Texas trial lawyer, deceased) stories goes like this: Another lawyer approached him in the courthouse and said, “ I was surprised to see you at the funeral of Judge Guinn.” This judge was notorious for being a racist, hard-ass federal judge, utterly lacking in compassion.
The lawyer went on to say, “In fact, I saw you go down front right up to the casket and bend close. I thought you hated him.” Burnett replied, “I was trying to make damn sure the SOB was dead!”
Maybe it’s too soon to joke about Justice Antonin Scalia’s passing. But it’s never too soon to be truthful. There is no escaping the fact that Justice Scalia did more to harm this country than any other judge of the Supreme Court in history. I know it’s customary to posture and disingenuously praise the dead, or offer up platitudes with a demure disclaimer, as Hillary Clinton did. I don’t expect to be running for office. And I, unfortunately, spent 40 years dealing with bad judges (not all, but too many).
Has there ever been a decision more destructive than Citizens United?
The corporate media are already trumpeting about what a giant Justice Scalia was, staunch defender of the Constitution, originalism, or federalism. Has there ever been a decision more destructive to the Constitution than the Citizens United case? This single decision officially established oligarchy, declared corporations were “persons.” Originalism? There was no such thing as corporations when the Constitution was written. It is clear that Scalia was the engineer of this incredibly deleterious decision. Now corporations are free to spend ANY amount of money in elections as a First Amendment right of free speech. Corporations are people. Hello, earth to Scalia.
How about Bush v. Gore, also engineered by Scalia. By virtue of this case, Justice Scalia appointed George W. Bush president even though he had lost the election. He definitely lost in the overall popular vote, as has been recorded. For those willing to examine the record and do the work (the corporate media did not do, or at least acknowledge), it is clear by a preponderance of the evidence, that had all votes been properly counted, Florida would have gone for Gore. That would have meant Gore was elected.
In going to the Supreme Court, Bush’s people knew exactly what they were doing.
In going to the Supreme Court, Bush’s people knew exactly what they were doing and who they were relying on to jigger the results. In an ordinary case the Supreme Court would have declined to interfere in a political matter. Not only did the 5-4 majority stop the count going on in Florida, it decided the presidential election.
This astonishing per curiam decision (no judge signed it as being the writer), defies the Constitution with a cockamamie equal protection rationale, by the five judges acquiescing, although these judges dismissed the equal protection clause routinely in other cases. It is so bad, such bizarre “law,” that the opinion declares it is not to be considered precedent. In other words, it’s a one time special for George W. and the Republicans.
This could not have happened without Scalia. Compare the account of Justice Sandra Day O’Connor of the process; as I understand it she indicated she regretted her vote with majority in retrospect.
This is the true legacy of Justice Scalia. In case after case, he turned away from civil rights litigants, innocent criminal defendants, women trying to protect the constitutional right to abortion established by Roe v. Wade. In fact, Scalia has indicated in public utterances his disagreement with that case, calling it “wrongly decided.”
One comment I heard was that Scalia had expired after a 30-year battle with social progress. There are plenty of other cases demonstrating his reactionary and hypocritical tenure on the nation’s highest court, thanks to Ronald Reagan. A president and judge who intoned the mantra of the right-wing: judges should not legislate or, expressed another way, they should refrain from judicial activism. That is clearly not the legacy of Antonin Scalia, quite the contrary.
[Jim Simons practiced law in Austin for 40 years, representing many movement activists, including anti-war GIs. Jim served as a counsel for members of the American Indian Movement who were arrested at Wounded Knee in 1974. After he retired he published his memoir, Molly Chronicles, in 2007. Read more articles by Jim Simons on The Rag Blog.]