Scalia, the Rumsfeld of the Supremes

Yesterday, the US Supreme Court made a sensible ruling, limiting when a criminal defendant could be forced to take psychotropic medications so that he or she could be tried. The case involved a nonviolent crime in which the defendant posed no danger to society or himself. The Court ruled that in such a case, a trial judge must make a finding that the drugs are medically necessary, will render the defendant competent to be tried, and that methods other than drugs are not readily available to achieve the same purpose.

Justice Scalia stuck to his usual style in his dissent–insult his colleagues who ruled in the majority, parody the issue, and engage in what Donald Rumseld refers to as “henny, penny, the sky is falling” rhetoric. Scalia said, in effect, now look what you’ve gone and done. Next thing you know a defendant will want to stop the trial and appeal because he can’t wear his favorite t-shirt to his trial. Worse, Scalia said, some courts will take today’s ruling seriously, and abide by it.

That sentiment really bothered me, given that we are supposed to do what the Supreme Court says. I mean, Florida stopped counting the votes, right? I think that Scalia probably only respects the law that goes his way, suggesting that he is in some early-childhood state of moral development. That the law should be obeyed because it is the law seems to be lost on him.

Why does this trouble me so? Because it bodes how he, Thomas (who virtually always joins him) and others, like O’Connor (to divine her jurisprudential philosophy would require more than a lifetime of lessons in reading tea leaves), will rule when it comes to upholding the law when they don’t like it. You know where I am going with this–what Scalia and his followers will do when the Constitution does not suit their political purposes in trials that test the powers Bush and Ashcroft have given to themselves in the name of fighting “terrorism.”

At the heart of Scalia’s dissent was the dismay that, damn, these defendants who want to assert their right to not be medicated will disrupt the trial by asking that medication be stopped. Then, if some judge follows the law, who knows when the trial will be concluded and the defendant go to prison or the execution chamber? Going through the motions, getting someone convicted regardless of how, is Scalia’s main concern.
Last year, in a bizarre article written for a Catholic publication, Scalia referred to himself as something akin to God’s executioner, for whom nothing or no one should stand in the way. Certainly not the law. Or courts–unless it is “his” court when he is in the majority.

Think about this and remember that Bush said Scalia was his favorite justice (and some say, Bush’s choice for Chief Justice). When a Supreme Court justice belittles the law and the process, what good is he?

ELAINE CASSEL practices law in Virginia and the District of Columbia, teaches law and psychology, and writes Civil Liberties Watch under the auspices of The City Pages. She can be reached at: