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Bully on the Bench: Scalia’s Crimes Against Justice

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Photo by Stephen Masker, distributed under a CC-BY 2.0 license.

 

The mythologizing of Antonin Scalia began only a few hours after his leathery heart stopped beating in West Texas and Satan swept his soul to the 8th Circle of the Inferno, where corrupt barrators are imprisoned for eternity. Here, strapped to a sparking electric chair, Scalia’s torments will be supervised by the demon Malacoda, who, Dante informs us, regularly “makes a trumpet of his ass.”

There was something of an uproar over the lack of an autopsy for Scalia’s ravaged body. Quick-draw conspiracists alleged the portly associate justice was murdered to give Obama a chance to realign the Supreme Court. These creative thinkers seem not to have paid much attention to the bleak presence of Elena Kagan on the bench. There’s no mystery about Scalia’s death. A three- pack a day man for most of his life, Scalia was clearly offed by his friends in the tobacco industry, whose murderous enterprise he zealously guarded in his legal opinions. And they say there’s no justice.

It’s not Scalia’s corpse that needed dissecting, but the true nature and quality of his jurisprudence. From the Weekly Standard to the Washington Post, Scalia was lionized as a “titanic legal thinker,” who possessed a blistering prose style and a wit “worthy of Swift.” Even more bizarrely, the praise for Scalia’s alleged brilliance was advanced by Beltway liberals, such as former Obama White House counsel Cass Sunstein (spouse of the odious Samantha Power) who asserted that Scalia was “witty, warm, funny and full of life. He was not only one of the most important justices in the nation’s history; he was also one of the greatest.” This curious assessment would have surprised former Chief Justice William Rehnquist, who for years sternly refused to assign any major court ruling to Scalia because he feared Scalia’s mad legal theories and nasty prose style would undermine the standing of the court.

None of these attributes stand scrutiny. Any sober assessment of Scalia’s legal writing would find them incoherent, contradictory and at times bordering on the pathological. In other words, he was a crank and bully, who was more than willing to consign a man to death row even when facts proved his innocence. In 2002, Scalia morbidly boasted about being part of “the machinery of death.”

Over the years, Scalia constructed an image of himself as a crusty anachronism, a throwback to a pre-Lapsarian America, a kind of constitutional necromancer, who could divine meaning from a Constitution that he repeatedly claimed was “dead, dead, dead.” But Scalia’s concept of “originalism”—the view that the Constitution is constricted by the 18th century definitions of the language used by the Framers—is a less of a cogent legal theory than a shrewd smokescreen. His crackpot legal theories served as legalistic camouflage for his own political prejudices and bigotry. Scalia often acted as if he, and he alone, could commune with the shade of James Madison to divine the original intent of a cohort of 18th century slave-owners on matters involving electronic wiretaps, drones and climate change.

Scalia’s dissents lash out wildly at nearly every manifestation of modernity, from racial integration and affirmative action to abortion rights and environmental protection. These social advances Scalia viewed as part of the great antinomian threat to his starchy vision of the moral order of the universe. When it came to immigrant bashing, even Donald Trump would have to take a backseat to Scalia, who wrote in a 2013 dissent in the Arizona case that Americans feel “under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy.”

Nothing seemed to unnerve Scalia quite so much as his infantile revulsion at sodomy. He obsessively ranted about the “homosexual agenda,” which threatened to infect the Republic and force god-fearing Americans to, as he put it in his risible dissent in Lawrence v. Texas, accept gays “as partners in their business, as scoutmasters for their children, as teachers at their children’s schools, or as boarders in their houses.”

Imagine being a bright young legal clerk having to research and draft these ludicrous and foul-minded opinions. By all accounts working for Scalia was a miserable exercise in career advancement. “He wasn’t happy unless someone, somewhere, was suffering, preferably at his hands,” said one of his former clerks, Bruce Hay, now a professor at Harvard Law School. “This was his jurisprudence.”

Long rumored to be a member of the reactionary Opus Dei Catholic sect, Scalia wore his religion on his robes, even supervising Clarence Thomas’s conversion to Catholicism. But Scalia was no mendicant. Indeed he was one of the most avaricious and gluttonous justices of the modern era. By 2014, Scalia had amassed a fortune of nearly $5 million, most of that sum accumulating after his elevation to the Court in 1986, through lavish speaking fees gleaned from conservative think tanks and corporate chieftains, some of whom had cases pending before the court.

Scalia expired in his barbarous element: alone in bed, breathing mask on his nightstand, at a swank resort, after a day of blood sport sponsored by a creepy cult of millionaire hunters called the Order of St. Hubertus, as coyotes chuckled in the distance. Play on, Malacoda.

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Jeffrey St. Clair is editor of CounterPunch. His most recent books are Bernie and the Sandernistas: Field Notes From a Failed Revolution and The Big Heat: Earth on the Brink (with Joshua Frank) He can be reached at: sitka@comcast.net or on Twitter  @JSCCounterPunch

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