Antonin Scalia's New Judicial Philosophy: Us And What Army?

Here's a thing Justice Scalia said during oral arguments on the constitutionality of the Affordable Care Act (AKA B. Hussein Soetoro's Diktat on the Punitive Application of Collectivist Death Panels v. Bald Eagle ) that is quite typical of him: "An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government. Do you acknowledge that that's a principle?"

A better question might be: Does Scalia? We are just asking because he did not mention this "principle" in his petulant dissent, best read in hisses, (pdf) inUnited States v. Windsor, the case where Justice Kennedy bestowed his Federal Dignity upon the gays. It's kind of weird that Scalia didn't bring this up, seeing as endlessly grumbling "Where in the Constitution does it say ____?" is pretty much his entire judicial philosophy.

So, where in the Constitution is Congress given the authority to define marriage? Even assuming Congress has that power, where in the Constitution is the justification for defining marriage in a discriminatory way based on gender? Maybe somewhere in the back?

Scalia chose not to address these very Scaliaesque questions in his dissent, instead focusing on how the Supreme Court is not the right venue to decide constitutional questions like DOMA, with a generous helping of Being A Dick to anyone who disagrees. Which seems... weird, right? It's all a bit tl;dr, but his gist is: If the President thinks the law is unconstitutional, he should just not enforce it, and let Congress impeach him if they want to. Really, he says this! Because the President could have just unilaterally decided that the nice lesbian lady should not pay estate taxes, he reasons, there needed be no injury in this case, and therefore quit worrying your tiny heads about the Constitution. Which is kind of interesting, in the sense that government by constant constitutional crisis might be amusing for a little while, why not?

Okay but who cares, gays win, right? Well, on the very day before Scalia seethed this Ode to Getting Off Lawns In Particular His from the bench, his name appeared in concurrence with Chief Justice Roberts's majority opinion inShelby County v. Holder.You know, the decision that voided Section 4 of the Voting Rights Act for no particular reason other than Chief Justice Roberts thought Congress half-assed it. The Roberts opinion (pdf), much like Scalia's dissent inWindsor, is notably light on any clear constitutional reason why Roberts ruled the way he did; there are some name-drops of the 15th Amendment and maybe a couple other instances of the word "constitution" and "amendment" throughout, but nowhere did Roberts ever explain why he felt the Supreme Court had the authority to declare this act of Congress unconstitutionish.

We are not constitutionish scholars, but we can read, and we read in the Constitution that "the Congress may at any time by Law make or alter" regulations pertaining to the times, places, and manner of elections. Now, Chief Justice Roberts may genuinely believe that "Congress is being mean to the racists by using bad data to apply the VRA" (paraphrasing), but where exactly is using bad data prohibited in the Constitution? Show us, because such information might come in handy the next time Congress writes a bill about how babby is formed, or why is it so darn hot outside? Scalia apparently found Roberts's total lack of a constitutional justification for his decision compelling enough to sign on to it without comment.

That the Supreme Court interprets the Constitution however the majority sees fit has long been a common loser's gripe, and it's often valid. This is a step further. This is jurisprudence wholly divorced from all but the barest pretense of a constitutional foundation. And it's being advanced by Justices who are billed as strict adherents to the letter of the Constitution. It's a farce, in case you did not catch our drift.

But at least we finally understand why so many people "in the know" always say how brilliant Scalia is: He realizes that it doesn't matter one iota whether he's consistent, or right, or whether anyone likes him. What matters is what Scalia says, provided he can get four other Olds to agree with him, and he will throw any half-baked, ham-fisted "argument" out there in hopes that it will confuse Kennedy. If that doesn't work, he'll write a glib and bilious dissent and call it a term. Hey, what was that about government by constant constitutional crisis again? And if we can't try that, there's always the Andrew Jackson "The Supreme Court and what army?" approach . He's on the twenty!

[ supremecourt.gov / npr.org / pbs.org ]