Justice Antonin Scalia's Very Bad, No Good, Terrible Week

Two fairly significant Supreme Court cases came down today and yesterday. Yesterday, SCOTUS held by a 6-3 vote that the Obamacare statutory scheme survives technical challenges to drafting errors in its language that would destroy everything the act sought to do, to wit provide healthcare. Today, by 5-4 vote the Court declared that marriage is a fundamental Constitutional right and that the laws of the individual States cannot abridge or curtail the equal exercise of those rights by anyone, gay or straight.

One thing that has emerged more clearly in these two decision is the descent of Justice Antonin Scalia from a principled conservative Justice to a casuist, radical partisan hack. There was a time when an opinion or a dissent by Justice Scalia deserved the attention of lawyers and judges whether they agreed with him or not. His decisions were grounded in sound conservative legal principles. But these two cases have exposed his evolution into an ideological determinist.

[Set aside Chief Justice Roberts's dissent in the Obergefell gay marriage case in which he claims, absurdly, that marriage is not a fundamental right recognized under the U.S. Constitution and that equality of rights is not something the Court should police when the individual States violate it. Huh?]

After a lifetime of arguing—fairly consistently and not entirely unreasonably—that decisions regarding statutory language should take into consideration the entire statutory scheme, Scalia took the position in the Burwell case that four words inartfully drafted should invalidate the entire Obamacare statutory scheme that has brought health insurance coverage to millions of Americans. He abandoned his own lifelong, vehemently defended principle of judicial decision-making and produced a dissenting opinion that coincided with his partisan political beliefs.

In the Obergefell case, Scalia called the majority opinion which recognized marriage as a fundamental liberty a "Putsch"—a deliberately chosen word associated with Hitler's and the Nazis' rise to power in Germany and their curtailment of fundamental rights and freedoms of the people of that country and the countries they conquered. He also called the reasoning of the majority "mummeries and straining-to-be-memorable". He calls its language "pretentious" and its content "egotistic". He implied that Justice Anthony Kennedy should be ashamed for agreeing with a decision that claims "The Constitution promises liberty to all within its reach" and should "hide [his] head in a bag." He impugns the integrity of the Court as an institution by implying that it has "descended ... to the mystical aphorisms of the fortune cookie." He intentionally misinterprets the majority's decision, ridicules it, demeans it, and says it might as well "Ask the nearest hippie" for its principles.

He called the Burwell case "interpretive jiggery pokery," "SCOTUScare," "pure applesauce." Name-calling and rhetoric, while making for good political sound bites, can never substitute for sound judicial decision-making. And the vehemence shown by Scalia can only be seen as intemperate.

This use of incendiary rhetoric from Justice Scalia emphasizes his own inability to maintain his conservative decision-making principles when they conflict with the recognition of Constitutional liberties for people he clearly despises—namely, gays—and his willingness to discard his own long-held and reasonably consistent principles of judicial decision-making when it might work to the benefit of those to whom he feels superior—namely, liberals who want to provide social protections to the less fortunate among us.

One other note on Justice Scalia's bad week: Scalia is a Roman Catholic and is widely believed to adhere to a radical conservative theological doctrine called Dominionism. It is a theocratic view, grounded in two Biblical passages:

Genesis 1:28: 'And God blessed [Adam and Eve], and God said unto them, "Be fruitful, and multiply, and replenish the earth, and subdue it: and have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth."' 

Romans 13: 1-2: "Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation."

Dominionists take two fundamental tenets from these verses: anti-environmentalism and theocracy. God has granted humankind dominion over the earth to do with as we please, including rapine and plunder at the expense of the poor and other species, even unto extinction. We cannot defile the earth no matter what we do because it is God's creation. This justifies their belief that climate change, or global warming, can never be caused by human action and that, by implication, market forces are always morally and theologically right.

A further tenet of this view, and one that Scalia has repeated on several occasions, is that the U.S. Constitution is a "dead letter" and its rights and liberties only extend to those whom the original framers intended them to encompass. It is not a living document. To Scalia, God ordained the Constitution and the governmental powers it authorizes. This latter view is a species of fundamentalism, the Protestant doctrine that holds that the Bible is literally true and unchangeable and is ultimately determinative of what is right and wrong forever. The Constitution is inerrant and must be literally interpreted (or constructed) according to its founders' original intent. Thus, when the Supreme Court recognizes a right under the Constitution extends to citizens who had no voice in the late 18th Century, Scalia bridles.

This week, Pope Francis I issued the encyclical Laudato Si' which calls this environmental Dominionism entirely wrong-headed. "Our ‘dominion’ over the universe should be understood more properly in the sense of responsible stewardship." Further, "The Bible has no place for a tyrannical anthropocentrism unconcerned for other creatures."

"Although it is true that we Christians have at times incorrectly interpreted the Scriptures, nowadays we must forcefully reject the notion that our being created in God’s image and given dominion over the earth justifies absolute domination over other creatures. The biblical texts are to be read in their context, with an appropriate hermeneutic, recognizing that they tell us to ’till and keep’ the garden of the world (cf. Gen 2:15). ‘Tilling’ refers to cultivating, ploughing or working, while ‘keeping’ means caring, protecting, overseeing and preserving. This implies a relationship of mutual responsibility between human beings and nature."

This is a huge blow to the first tenet of Scalia's Dominionist view, root and branch. Pope Francis condemns the deification of the market—a further view held by Dominionists and derived from their two tenets. "Once more, we need to reject a magical conception of the market, which would suggest that problems can be solved simply by an increase in the profits of companies or individuals."

Scalia simply cannot reconcile the Pope's doctrinal teaching to his own radical, fundamentalist—possibly theocratic—views about markets and the environment without doing violence to his own principles of judicial decision-making. And we have seen that same descent in his hysterical, rhetorical outcries in dissent to the two Supreme Court decisions that came out this week.

Simply put: Justice Scalia is coming unhinged. Justice Scalia is a casuist, not a principled conservative.

Indeed, it was a very bad, no good, terrible week for one of America's most vocal Supreme Court Associate Justices.

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Edit and Update: It bears noting that Justice Scalia's derangement evidenced itself glaringly last year when he mischaracterized his own 2001 ruling in the American Trucking case in his vociferous dissent to last year's SCOTUS decision about U.S. Environmental Protection Agency's clean air policy. It was an enormous embarrassment to a distinguished jurist and even more to the institution of the Court. Again, to prevent EPA environmental regulation, Justice Scalia blatantly lied about a Court precedent which he himself had authored.