26 June 2015

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.

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.

18 June 2015

It's Mourning in America

And mourning in the South. Charleston, SC, is one of the loveliest and friendliest cities in the United States. Last night, a horrible act of racist terrorism took the lives of 9 African-Americans attending a prayer service at a historic church. We grieve with the families and friends of the innocent victims massacred there.

How could such a thing happen in 21st Century America, you ask? I do not understand hate. I'm writing about it in my new novel, but the work is difficult.

The capitol of the State of South Carolina proudly and unironically flies the battle flag of the Confederacy. Despite many calls and protests, they have refused to take down this symbol of treason and slavery. Does that explain or somehow encourage such "lone wolf" or stochastic terrorism? I don't know. But it certainly doesn't help.

UPDATE: This one hits home for me in a very visceral way. I was born in SC and grew up in Shelby, NC, where authorities caught the perpetrator this afternoon. After 20 years up North, I now live in Atlanta, 4.5 hours drive from Charleston. I know from painful first-hand experience the ferocity of the racism and hatred that rumbles around just below the surface in this part of the world. The novel I'm working on now, my second, focuses on hatred in the contemporary South, racism, organized anti-governmental politics, militias, stochastic "lone wolf" terrorism, etc.

Shortly after posting, Nikki Haley, the current Governor of the State of South Carolina, came on TV and, crying, claimed that the heart and soul of SC was broken. No, Governor, the heart and soul of SC flies proudly and unapologetically in front of your office building (see above). It encourages and emboldens the sort of mindset that leads people to do such xenophobic, terroristic violence. Will you fly your treasonous flag at half staff to honor the dead?

12 June 2015

RIP Ornette Coleman

I moved to NYC on January 1, 1985. One of the first truly downtown 'cultural' events (besides a Sun Ra concert) I attended there with Wisdoc was the premiere of this movie:

Shirley Clarke's 1985 documentary "Ornette Coleman: Made in America." If memory serves, we also saw him perform with his son, Denardo.

At the premiere, Wisdoc and I were standing in the lobby talking and waiting for the show to begin, and I said something like, "Don't look now, honey, but he's standing right behind you." And he was! In a shiny white[?] suit, smiling, talking, heading into the show. We both had Coleman records—lp's yo—in our collections when we first met and instantly recognized him. He seemed so friendly and engaged with all the folks clamoring around to shake his hand.

Coleman passed on yesterday at the age of 85. Yep, Ornette, it's "Checkout Time." Godspeed.

02 June 2015

"A lot of notes..." Wisdoc

Saw this man, Yefim Bronfman, perform this piece, Prokofiev, Sonata No. 7, opus 83, III. Precipitato (1942) as a worthy encore to a wonderful Beethoven Fourth Piano Concerto. If the word 'virtuoso' ever applied... One of the most magnificent performances of anything I have ever seen. Four minutes of jaw-dropping, show-stopping brilliance. A piece designed to dazzle. I urge you to listen. And check that rumbling left hand at about 2:22!

Wikipedia says this about the piece:  "The Precipitato finale, once described as "an explosive burst of rock 'n' roll with a chromatic edge",[6] is a toccata[7] which boldly affirms the key of the sonata through a more diatonic harmonic language than found in the first movement. This is obvious from the very beginning, with simple B♭ major triads repeated over and over again. Despite a wide range of performance tempos chosen by different pianists, the effect is nevertheless imposing and exciting. The toccata culminates into a furious recapitulation of the main theme, taxing all ten fingers to the utmost, until the piece finally ends triumphantly in a thundering cascade of octaves."