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Why Scalia is (sometimes) Right.


 So, two interesting decisions came out of the US Supreme Court this term, and I'd like to take a few minutes to alternately crucify and defend Justice Salia. Those of you not interested are cordially invited to stop reading now.

 Justice Scalia is an idiot. (Or: My views on US v. Windsor)
It's no secret that while I'm a confirmed bachelor and a renowned hater of men, women, children, and small yappy purse dogs I am decidedly NOT a fan of the Defense of Marriage act (DOMA). It is a blatantly unconstitutional law that utterly trampled on the concept of states rights (the states being the historical arbiters of what constitutes a legal marriage in the United States), and restricted full faith and credit (Article IV, Section I) in flagrant violation of the Equal Protection clause (14th amendment).

If you are unfamiliar with Article IV, Section I or the 14th amendment, please don't feel bad: Apparently the 104th United States Congress and then-President Bill Clinton never read them either. (I have to assume illiteracy, otherwise we're talking about a whole passel of elected officials who decided their oaths of office to "Defend the Constitution of the United States" were just words, devoid of any meaning. Surely our elected officials take these oaths seriously!)

Justice Scalia's dissent in this case frankly reeks of homophobia, but setting that aside his premise is wrongheaded in several interesting ways. I would like to pick on one particular spot in particular however:


Where the Executive is enforcing an unconstitutional law, suit will of course lie; but if, in that suit, the Executive admits the unconstitution- ality of the law, the litigation should end in an order or a consent decree enjoining enforcement.

Basically, because President Obama's Justice Department is refusing to defend DOMA Justice Scalia feels there's no point to the Supreme Court ruling on this case -- he feels it's superfluous as Windsor's "injury" has been "cured".
The effect of this statement is "If the (current, sitting) president issues an executive order not to enforce an unconstitutional law SCOTUS has no power to review said law" -- I'm not a constitutional lawyer, but that's idiotic. A future president could rescind such an order, or the Department of Justice could simply ignore it (it flies in the face of their mandate).

The only acceptable cures for an injust (or blatantly unconstitutional) law are the repeal of such laws by the legislature, or the invalidation of them by the judiciary. Anything less is a half-measure, and an abdication of the power of judicial review that is at the heart of the Supreme Court's power in our alleged system of checks and balances.



If you haven't read the full text of the opinion in US v Windsor you should. Supreme Court opinions are worthwhile reading for any citizen, and you'll find that even though the court and I agree on the result (overturning DOMA) there's some variation of opinion as to why it should be overturned (the court neatly, and properly, avoided the "full faith and credit" question, which was not at issue in Windsor, and instead ruled based on "equal protection" - which is probably the stronger legal challenge to DOMA).
I do envision a future case on the "full faith and credit" question though, when a gay couple in New York moves to a state where their marriage isn't recognized by local law...


Justice Scalia is NOT an idiot. (Or: My views on Shelby v. Holder)
So I just got through eviscerating Justice Scalia on one case (and I was holding back -- there's stuff I'm NOT saying!), and now I'm going to defend him (and Chief Justice Roberts) on the "bad" side of an equally controversial case.

Justice Scalia is being widely villified for joining with Chief Justice Roberts' opinion in Shelby v. Holder, finding that Section 4(b) of the Voting Rights Act (whch is one of the mechanisms for determining if a state is covered by the "pre-clearance requirements in Section 5) is an unconstitutional. Frankly I'm not good enough at this shit to argue for or against its constitutionality, but it's  a shit test.

The logic for determining if a state is covered by the preclearance requirements of Section 5 ought to be straightforward: Evidence (through case law, statistical techniques, or otherwise) that voting discrimination is taking place should trigger a federal review of local voting laws (with remediation), and the preclearance requirements of Section 5 should apply until such time as evidence that systemic attempts to suppress voting (by any group) have been appropriately addressed and are unlikely to occur in the future.
(There are such provisions in the Voting Rights Act, but they're less-than-stellar...)

Do we still need the Voting Rights Act? FUCK YES!

Is it a bad thing that it is effectively toothless at the moment? Without a doubt!

Should Congress get off their fat asses and fix the law? Why the fuck aren't they holding a special session right fucking now?!

Should the court have allowed a broken, antiquated law that specifically targets certain states (by effect, if not by word) to stand? NO.
The concept of equalty amongst the states means that the Voting Rights Act should be crafted to apply universally. The tests in Section 4 are not universal, and provide a loophole for some states to engage in discriminatory voting practices while avoiding automatic scrutiny & the full force and effect of the Voting Rights Act. 

What the fuck am I getting at?

If you want to criticize a jurist, do so based on bad law (and Justice Scalia has made plenty of Bad Law in my opinion).

Justice Scalia's dissent in Windsor is based on Bad Law (and what appears to be personal bias).
We should all feel free to pick that opinion apart, disagree vhemently, and vocally defend the Constitution of the United States of America.

Justice Scalia joining with Chief Justice Roberts in Shelby is based on Good Law.
The net effect is a Bad Thing (and we should place the blame for that squarely on Congress, and insist they revise the statute), but doing the Right Thing for the Wrong Reasons (a favorable judgment based on Bad Law) leaves a shaky foundation that can be easily invalidated by a new court (stare decisis is not absolute: Plessy v. Ferguson being swatted down by Brown v. Board of Education is perhaps the most prominent example of the Supreme Court saying "Yeah, we fucked that up good. Here's a new precedent.").


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