Jim Simons :
The passing of Scalia: A requiem for Caesar

There is no escaping the fact that Justice Scalia did more to harm this country than any other Supreme Court judge in history.

Antonin Scalia 2

Antonin Scalia. Photo by Stephen Masker / Creative Commons.

By Jim Simons | The Rag Blog | February 16, 2016

“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.]

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10 Responses to Jim Simons :
The passing of Scalia: A requiem for Caesar

  1. Steve Speir says:

    A truly great day when this twisted, mean-spirited troll died. I jumped for joy and called ten people to share the good news. Almost as as good as the day little John Tower’s plane “broke.”

  2. Steve Russell says:

    Hi Jim! I agree with your general dim view of Antonin Scalia’s jurisprudence, but more harm than any other judge in history?

    Nah. No Associate Justice could make that cut, because the powers of the Chief Justice mean the Chief just has more opportunity to harm the country. Even Scalia’s role in leading Clarence Thomas to the dark side does not get Scalia to the all time top.

    Which Chiefs would I put ahead of Scalia?

    Roger Taney, whose Dred Scott opinion gave us the Civil War.

    Melville Fuller, spear carrier for capitalism, declared the income tax unconstitutional, gutted the Sherman Anti-Trust Act, struck down the minimum wage, anti-child labor laws and the prohibition of yellow dog contracts.

    On the civil rights front, he gave us “separate but equal.” In Carter v. Carter Coal, Fuller wiped out one of the earliest environmental laws. Generally, Fuller was able to find capitalism in the Constitution. He also pioneered striking down any protection of workers on the ground that it limits the right of workers to get screwed.

  3. Frances Morey says:

    I love it when legal professionals weigh in on the historic significance of SCOTUS. Perhaps Jim could have qualified his judgment with, “to our memory.”

  4. Steve Russell says:

    I’ve been debating with myself how far to get into the weeds and this may be way too far, but it’s just not correct that Citizens United established corporate personhood or even one dollar-one vote, although it’s fair to say that Citizens United turned the two ideas into a juggernaut carrying a hostile payload at the heart of democracy.

    English settlements on the East Coast were run by corporations, so they certainly did exist before the Constitution. They were, however, direct grants of sovereign power from the King. They also had a degree of legal personhood, necessary to enter contracts, hire and fire people, etc.

    Lots changed from that time, though.

    It was not until 1837 that the SCOTUS held that a monopoly was not contained in a corporate charter BY IMPLICATION.

    At first, legislative bodies could sell corporate charters just like kings did, but eventually we got corporate charters available to anybody who wrote them up and paid a fee to register them.

    I think you are concerned about corporate personhood under the 14th Amendment, a position the SCOTUS adopted without briefing or argument in 1886.

    The “one dollar-one vote” principle was born in Buckley v. Valeo in 1976, ten years before Scalia showed up.

    The Republicans are always trying to criticize Obama because of what Obama inherited as opposed to what he created. In a way, blaming Scalia for Citizens United is similar.

    All the building blocks for Citizens United were in place and Scalia didn’t even build it. It was a John Roberts production, sort of.

    I say “sort of” because Chief Justice Roberts assigned the opinion to himself, which is what a CJ can do when he wants to swing his stick. However, Justice Kennedy wrote a concurrence that was actually worse from our point of view than what Roberts had written and after the opinions circulated Kennedy had the majority.

    The worst you can say about Nino besides he voted wrong is that he wrote that bizarre concurrence where he got in Stevens’ face about bringing up the history of corporations, which Scalia said was immaterial because the First Amendment protects “speech, not speakers.”

    A fine bit of sophistry, but not really influential in the case.

    It could be that Scalia is ugly and his mother dressed him funny, but he’s not responsible for every injury inflicted on democracy by the Rehnquist and Roberts cabals, er, courts.

  5. Lance Renfrew says:

    It was indeed a sad day for America when a legal giant and once-in-a-generation thought leader passed from the court. He will be missed.

    No matter how much the Demoncrats and the media push to get an Obama nominee across the finish line, it will not happen. The opportunity to replace Scalia and likely two more justices in the next term will motivate even those like me who detest both of the corrupt political parties to at least cast a vote in the hopes of retaining a court that brings a little sanity to the lawlessness from the District of Criminals.

  6. Steve Russell says:

    Scalia? A thought leader?

    Who did he ever lead besides Clarence Thomas?

    His claim to fame in oral argument–besides holding some all time snark records—is speaking Republican talking points with no basis in fact from the Bench. For a practicing lawyer, it’s touch and go which is more scary: a political talking point in the courtroom or the adoption of fake facts not in the record.

    The upshot is the Justice becomes marginalized. Those who are on the side of his biases count him as an automatic vote.

    On the left, you could say William O. Douglas was out there in a tax case or a speech case. He was going to come down for the taxpayer or for the speaker and so arguing to him was a waste of time.

    In both cases–Douglas on the left in tax and speech cases and Scalia on the right in most cases—the only weapon they had was their ability to write in words that would get attention. They were both fluent in written form of their native language, something getting rarer all the time.

    Point at something in Scalia’s career that matches Douglas’s impact on the right to privacy? Or his taking apart of the bad cases from the Red Scare? Or his common law exegesis in upholding the Civil Rights Act of 1964?

    You got Scalia coming down on the correct side of the case where the SCOTUS gutted the Indian Child Welfare Act but he did it in a manner that reflected his biases as much as his blunders in the gay rights cases.

    One of the great ironies Scalia engineered from the SCOTUS was to oppose the result in the Windsor case, where his laughable feint toward reductio ad absurdum led directly to a much quicker victory for gay marriage. You could say that Scalia “led” the charge away from his homophobia.

  7. JR says:

    Even if Scalia was a scoundrel and he a hunting partner of Dick Cheney, you should not ignore that he was assassinated. Come on Rag, get your head out! He was declared dead over the phone! Despite what the family wants, he was a Supreme Court Justice. The standard operating procedure is to give autopsies to every wet-back that dies in the desert. Instead of the Lear Jet to Bethesda, one coroner drives the body three and a half hours to El Paso. The body is transferred to another coroner and immediately embalmed. The fluids were flushed into the Rio Grande. Nothing to see here…
    Health care, abortion, immigration, carbon tax, gun control… Even if you are glad he is gone, it is still murder!
    Who gained? Will Clinton put B.O. on the court?

  8. JR, seriously, are you outta your tree? The fat man died of congestive heart failure, or do you think he ran marathons between Court sessions?
    Thanks, Jim, for saying what we are all supposed to reverently forget out of “respect for the dead” — he was a terrible Justice who did a lot of harm; OK maybe not the worst ever, but bad enough. All the pro forma adulation, as with dear departed former first lady Nancy “Just Say Blow!” Reagan is obsequious nonsense perpetuated by our Rulers to preserve their mystique of Niceness. “Urp,” I say!

  9. Jim Simons says:

    No, Justice Scalia was the worst judge ever. But that was not the point exactly. I have not and will not get into bloviation driven arguments about that. If I wanted to do that I would start going back to beer halls. As usual Mariann got the point, others? Well maybe they have too much time.

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