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Scalia Scowls – Take Notice

The Supreme Court has released a number of opinions, and it’s been a tough week for conservatives. Most of the focus has been on the big political fights – federal subsidy for state “Obamacare” exchanges was upheld and marriage equity is the law of the land in all fifty states. It was the latter that gave us the most blistering dissent from Justice Scalia:

“A system of government that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy,” he wrote in one of the more coherent statements in his dissent.

But another ruling, striking down part of the Federal “Three Strikes” law, illustrates judicial activism even more clearly. All of this begs the question as to where Scalia’s logic was in the “Citizens United” ruling in 2012 that declared corporations to be people, too. There is judicial activism, yes, but it’s more about filling in the gaps left by years of a completely dysfunctional Congress. Someone has to be the adults – even one branch of government has to endure Scalia’s sometimes childish ranting.

Justice Antonin Scalia.  It's the argle that makes him smile more than the bargle.

Justice Antonin Scalia. It’s the argle that makes him smile more than the bargle.

We should start away from the hoopla in the decision rendered in Johnson v. United States. In this case, the court ruled 8-1 that counting past convictions as “violent” under the “Three Strikes” provision to stop career criminals had to be more specific. They struck down using convictions for “”conduct that presents a serious potential risk of physical injury to another”.

The reason this is interesting is that the courts have ruled five times in seven years that this clause was troubling, but always left it up to Congress to correct it. They saw their role as something like the national lawyers, giving advice to the elected officials as to how to bring a law into compliance.

That’s hardly “judicial activism”. But the patience required to hold that position has apparently worn out.

The court’s broad rulings this week probably reflect that frustration as much as anything. It appears that the Supreme Court has become emboldened to act, rather than advise, using their power to fill the gaps in left in our otherwise carefully balanced system.

But would you want one as your neighbor?

But would you want one as your neighbor?

It begs a re-visit to the halcyon days when the court had more faith in the system, which naturally brings us to the only recent case as active as the declaration of marriage equity – Citizens United. In that case, the court didn’t just rule that “corporations are people”, it issued a very nuanced and thoughtful treatise on the nature of free speech in an open society.

The gist of it is that speech is almost impossible to stop, so why bother trying? Money will always find a way to influence elections, so laws preventing it are doomed to failure. The only reasonable solution is a standard based on disclosure, the majority opinion reasoned. Let the people understand the nature of the money, er, speech, by labeling where it came from. Congress already has the power to do that, and has enabled the FEC to do this, so why not?

It was naive at best for the Supreme Court to assume that the political system was capable of implementing a system like the one they proposed. The result of Citizens United has been simply unlimited anonymous money pouring into the political system like a tidal wave.

Yes, where was Scalia’s logic when that ruling was handed down?

But that’s not where the court is today. A much bolder court handed down three rulings that indeed reshaped the political landscape. The Obamacare ruling was hardly anything new, but Marriage Equity certainly is. Striking down a big part of “Three Strikes” was also very bold.

Would the court act the same way if Citizen’s United was revisited? I think it’s worth trying. We have seen the results of the court’s action and it hasn’t been good for genuinely “free” speech. Government in general has shown it is unwilling or unable to follow sage advice from the court, meaning that they might feel a need to take control.

"This is how it is.  Got it?"

“This is how it is. Got it?”

In many ways, this mimics the rise of the Federal Reserve as the ultimate economic power in the US. It, too, has been filling the gap left by an ineffective Congress that is constantly locked in conflict with the President and incapable of even passing an actual budget. The economic stimulus that everyone knew was necessary fell to the Federal Reserve despite the inherent inefficiency in doing it with pure monetary policy.

Everyone knew more had to be done. Only the Fed had the guts to do it.

Are we looking at a new, activist Supreme Court? The short answer appears to be a rather emphatic “Yes!”. It also appears to have come from sheer exasperation and a desperate need to have adults in charge somewhere. But does Scalia have a point, namely that a Supreme Court with so much power is a definite threat to Democracy?

The short answer to that is, again, “Yes!” While those of us on the left have good reason to cheer the rulings that were handed down today, we have to remember that they are the product of an utterly broken system. A few victories are good and worth savoring, but we still have a tremendous amount of work to do.

Our democratic-republic is gradually slipping away from democracy towards a rule by the elites. There is a long-term problem that our leaders understand and are willing to act to correct as well as they can. But if we are really a free nation it has to fall to us to fix the problems.

15 thoughts on “Scalia Scowls – Take Notice

  1. This post is interesting but not very coherent. In trying to understand the Court, one needs to distinguish between cases of high economic import to the elites, like Citizens United, or putting the Bushmonster in the White House, vs matters like marriage, and criminal law rules, that don’t really hit the billionaires in their vaults. As for the crank Scalia, it’s hard not to suspect he needs to come out of a closet of his own, but maybe he really is just a crank.

    • That would make sense if you presume they are in service to the “elites”. If you presume they simply have a different opinion than you their actions still make sense but could change.

    • That is an interesting way to look at it, but I doubt that members of the court look at themselves as servants of a ruling class. In the case of Citizens United, I was impressed by Roberts’ opinion, naive as he was on enforcement. He had a point, and I don’t want to discount it out of hand.
      I would very much like to see that go back to the court because I do think they have changed today.
      Scalia? Mostly a crank, yes. But … we are seeing a much more activist court suddenly – without a lot of warning. It’s worth taking note of.

  2. Eric,
    Your view of this makes sense to me. The traditional Left, of which I’m a part, has fared dismally for many years despite victories in Presidential elections. The Democratic Party, our erstwhile representative, has seen many adopt centrist-right positions for political expediency. Bill Clinton and Barack Obama have well represented the interests of the corporate elite……yadda, yadda, yadda. You know the warp and woof of the story as well, or better than I, but here’s the thing you pinpoint so well. We become excited at these seeming “victories” of common sense to the point of ecstatic glee and in our exuberance fail to take into account the full ramifications. As you point out with the Fed, we have left them to act in lieu of any sensible solutions coming from Congress and the Executive.

    What little Democracy we’ve had is as you say “slipping away” and yes while we all must seize the moment, sadly I fear that the tipping point may be long past. The Left we represent too often misses the “big picture”, settling instead for symbolic victories. How quickly we have forgotten our elation with Roe v. Wade, only to see its opponents continually moving to nullify it and in the process turning the tables to paint us as the extremists abetted by a corporate media.

    Your view is one that I always find insightful and were I religious, I might say “from your mouth to God’s ears”. The problem is how do we get the general public, fed daily with corporate propaganda, to understand the gravity of Democracy’s situation?

    • Where you got me was talking about “The Big Picture”(tm). That’s what I think is completely missing on the left for far too long, and it’s why I posted the work of Robert Reich without editing.
      We need this.
      I do think that at the end of this Depression we are at a major turning point. The economy is changing rapidly, and with it a lot of social structure. A new generation is going to start taking over as Baby Boomers retire. Where are we? Where are we going? There’s a lot to work through – and if we don’t do it together I have no idea how we’ll have anything that works.

  3. Like it or not SCOTUS is very powerful. I can’t say that there is anything consistent about them these days. Far right pols like Palin and Cruz are talking about ways to nullify SCOTUS rulings which is absolutely crazy so I have to say I stand with them in that case.

    • I would just ignore the far right people – I doubt they will get anywhere. Right now, we have a court that clearly has a renewed interest in taking charge of the situation, and it appears to be coming from frustration. I would say to that, “Welcome to the club”. But there is reason to fear more power at the top and Scalia’s point, at least in this case, is very valid.

  4. You know, I don’t think that this country was ever ruled by its citizens. Sure, they had some impact on the decisions that were made, but I believe this to be overrated. When you look at the legislation, how much of it do you actually see as being developed by citizens, their associations, and how much of it was a lobby of big corporations? What I perceive in the US is a lack of integrity when implementing laws and government policies into communities. This country is ruled more and more by police and other security services, while being completely abandoned in terms of welfare. This is why people start to turn back to themselves – they feel they were abandoned by their elites and their neoliberal dream. I think that right now, we all have to get back in touch with everything that makes us alive, otherwise we can end up dead in a couple of decades.

    • It’s a Democratic Republic – and through our history we’ve been more D one generation and more R the next. But, yes, generally we’re more on the R side.
      But I completely agree with your assessment of what we need to do as a people, especially if we’re going to be more Democratic in the future. Life is indeed far too short and if we don’t focus on what makes us happy we’ll all be stuck in the insane rat race working for someone else’s dreams.
      Amen, brother.

    • Scalia has used the phrase “jiggery pokery” in one of his dissents. It is a strange term used to describe an elaborate deception, essentially a 3-card Monte kind of situation. The video is of Sandy Squirrel saying, “No more jiggery pokery!” from episode 223, “The Smoking Peanut”.
      Yes, I remember a lot of SpongeBob. 🙂

  5. Pingback: Banks Amok? Perhaps Not | Barataria - The work of Erik Hare

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