Saturday, June 27, 2015

Scalia's Dissents

It is very exciting to read all the celebration over the Supreme Court of the US and their decision to legalize same-sex marriage. The US will now enter a period where same-sex marriage will hopefully disappear as a distinction and eventually there will just be "marriage."

It has been interesting however to follow the dissent that Antonin Scalia filed against the ruling, as well as his dissent against the Supreme Court's approval of Obamacare. In my social media feeds it seems like nearly everyone is ecstatic about these victories, but every once in a while someone, a friend on Facebook for instance will post something lamenting the downfall of the US because of these decisions. Usually it has Scalia's face on it with some snarky and ignorant quote such as the one above.

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Antonin Scalia Dissent in Marriage Equality Case Is Even More Unhinged Than You'd Think
by Ryan Grim and Arthur Delaney
6/26/15
Huffington Post

WASHINGTON -- Justice Antonin Scalia has really had it.

Scalia's dissent in the case of Obergefell v. Hodges, which officially made marriage equality the law of the land, runs for eight pages, but amounts largely to a big, arms-crossed "harumph."

"I join THE CHIEF JUSTICE’s opinion in full. I write separately to call attention to this Court’s threat to American democracy," he begins.

"The substance of today’s decree is not of immense personal importance to me," he offers. "It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best."

"But the Court ends this debate, in an opinion lacking even a thin veneer of law," he opines. "Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its 'reasoned judgment,' thinks the Fourteenth Amendment ought to protect."

Scalia even offered what may be the first legal citation of a hippie.

"'The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality,'" he quoted from the majority opinion before adding, "Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie."

HuffPost went to look for the first hippie we could find, per Scalia's instructions. Neil Cousins, a 61-year-old man from Alexandria protesting nuclear weapons outside the White House, said he had come to this very park in the 1970s for pot smoke-ins, but added that there really haven't been hippies around since the Grateful Dead stopped touring. He was nonetheless willing to offer a judgment on Scalia's assertion that marriage abridges rather than expands intimacy. "I've known it to have both reactions," he ruled. "Scalia is a big knucklehead."

In Scalia's dissent, he also bemoaned the tone of the majority opinion.

"The opinion is couched in a style that is as pretentious as its content is egotistic," he writes. "If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: 'The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,' I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie."

"And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation," he writes. "But what really astounds is the hubris reflected in today’s judicial Putsch."

Each of the four opponents of the ruling wrote their own dissent but Scalia, opposing for every reason anybody could come up with, joined the three he didn't write.

Here are the most delightfully cranky lines from his Obamacare -- or, in his christening, SCOTUSCare -- dissent from Thursday.

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Here Are The Best (Worst) Lines From Antonin Scalia's Raging SCOTUScare Dissent
by Ryan Grim and Dana Libelson
6/25/15
Huffington Post

WASHINGTON -- Backers of the Affordable Care Act were treated to twin delights on Thursday: First, the law was upheld, so nobody will be kicked off their insurance by the Supreme Court. And second, the dissent was written by Justice Antonin Scalia who, when angry (which is always), has a penchant for literary drama.

"Words no longer have meaning," Scalia wrote in the dissent he read from the bench.

They might not, but that didn't stop Scalia from piling them on top of each other in an angry heap. Here are some of the choicest of his meaningless words. (The attempt by opponents of Obamacare to argue that the law didn't say what it very plainly did say was silly to begin with; that it was rejected means that words do, in fact, have meaning. But this isn't a place to argue with Scalia. Let's just let him rip.)

"Today's interpretation is not merely unnatural; it is unheard of," he wrote. That is, strictly speaking, true, since this was a new case.

"We should start calling this law SCOTUScare."

"This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious -- so obvious there would hardly be a need for the Supreme Court to hear a case about it," Scalia wrote, again accurately, though not in the way he meant.

"The Court's next bit of interpretive jiggery-pokery..."

"Pure applesauce," he insisted. "Imagine that a university sends around a bulletin reminding every professor to take the 'interests of graduate students' into account when setting office hours, but that some professors teach only undergraduates. Would anybody reason that the bulletin implicitly presupposes that every professor has 'graduate students,' so that 'graduate students' must really mean 'graduate or undergraduate students'? Surely not.'"

"Our only evidence of what Congress meant comes from the terms of the law, and those terms show beyond all question that tax credits are available only on state Exchanges," Scalia writes, forgetting that the people who actually wrote the law were not only available to provide evidence of their intent, but did so.

Pause for a moment to consider what would have to be true for Scalia's argument to work: The authors of the Affordable Care Act would all have to be lying about their true intent on subsidies. While they claimed in public that the law would give subsidies to everyone who qualified, secretly they were drafting the law to restrict it to just people in states that set up exchanges. And, more bizarrely, they would have engaged in a collective conspiracy to keep their true intent hidden from the public until it was discovered by conservative activists, who then used that it to challenge the law. If that really was their intent, why, then, would the authors of the law go to court to defend the precise opposite of their true, secret intent to restrict subsidies only to states that set up exchanges?
It sounds like applesauce, but Scalia appears to have fully internalized the idea. For a window into the way his mind works on this score, here's how he frames the behavior of Republican governors and legislators who declined to participate in Obamacare: "Worst of all for the repute of today’s decision, the Court’s reasoning is largely self-defeating. The Court predicts that making tax credits unavailable in States that do not set up their own Exchanges would cause disastrous economic consequences there. If that is so, however, wouldn’t one expect States to react by setting up their own Exchanges? And wouldn’t that outcome satisfy two of the Act’s goals rather than just one: enabling the Act’s reforms to work and promoting state involvement in the Act’s implementation? The Court protests that the very existence of a federal fallback shows that Congress expected that some States might fail to set up their own Exchanges. So it does. It does not show, however, that Congress expected the number of recalcitrant States to be particularly large. The more accurate the Court’s dire economic predictions, the smaller that number is likely to be."

"What a parody today's decision makes of Hamilton's assurances to the people of New York," he wrote.

"We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct."

Scalia, of course, is a much better writer than he is a consistent thinker. Words might not mean anything, but Chief Justice John Roberts dredged up some of Scalia's own from his last Obamacare dissent.

"Without the federal subsidies... the exchanges would not operate as Congress intended and might not operate at all," Scalia and the dissenters wrote at the time, back when they wanted the entire law to be crushed. Now that he's only going after the subsidies, it's clear as day to him that Congress didn't intend what he said they intended last time.

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Scalia Said to Ask The Nearest Hippie About Marriage, So We Did
by Sam Stein, Arthur Delaney, Elise Foley
6/26/15
Huffington Post

WASHINGTON -- In his dissent in the Supreme Court's decision to legalize gay marriage throughout the country, Justice Antonin Scalia rested part of his case on the notion that marriage was inherently a self-limiting proposition. Rather than expanding intimacy, as the majority of justices concluded, marriage restricted it. And if you thought he was just being acerbic, well, Scalia added, "Ask the nearest hippie."

The Huffington Post decided to take him up on that offer. Shortly after the opinion was made public, we went to the White House in search of the nearest drum circle. We didn't find any.

But we did find some hippies -- old and young, current and former -- willing to discuss whether they felt restrained by the institution of marriage. By and large, they don't.

Paige Carambio of Salem, Massachusetts, said she was a hippie in her youth. As evidence, she noted that she attended a Grateful Dead concert at either the age of 11 or 12, "before Jerry died." Her mom was a hippie, and so was her brother, who followed Phish around for a while. And while she skipped the last year of her high school to attend college early (decidedly un-hippie), she ended up at Bard College at Simon's Rock (holy hippie!). Carambio, 33, is married and traveling with her husband to see her brother in Washington, D.C. She put Scalia on the proverbial couch.

"If his dissent is about him being bummed that monogamy is boring, then he is not doing something right," she said. "This says way more about himself. He and his wife might want to consider couples' counseling or spicing things up a little."

"Marriage hugely expands intimacy," she added. "I think that connecting with another human being and feeling safe alongside someone is truly intimate. The quickest, easiest way to expand intimacy is in a partnership."

Wendy Zhuleku, 34, had come to D.C. from Toronto in order to see the sights. As she walked toward the White House, she conceded that she was once a bit crunchier, more bohemian. She insisted she had discovered the secret to withstanding the natural aging process, at one point declaring that she was really 75. (Hippie credentials firmly established.) Scalia, she said, got it wrong.

"As a married former hippie, I have to say that it expands intimacy," she told The Huffington Post. Still, she conceded there was a point behind Scalia's writing: If you define intimacy squarely as a sexual act, then you do limit it if you enter into a monogamous marriage.

"I think I understand what he is getting at in his legal decision," she said. "But that's because I'm a lawyer."

Farrah Pruskauer, 19, disagreed. Marching toward the White House carrying a sign reading "No More Drug War" (hippie!), she made the fairly logical point that if you want multiple partners, you probably won't end up getting married in the first place. At least you don't have to. So in that way, marriage is a choice for those who believe intimacy is more than just a sexual act.

"I think it depends on the person you are," she said, when asked if Scalia's logic of self-limiting intimacy was right. "But these are decisions you should make before you marry. ... No matter what, when you decide to marry someone you decide you are going to be by that person's side. And that is very intimate."

Neil Cousins, 61, said he doesn't consider himself a hippie, but he did attend marijuana smoke-ins outside the White House in the 1970s. He was volunteering Friday morning at the White House Peace Vigil and lives in Alexandria.

"I've known it to have both reactions," Cousins said of whether marriage limits or expands freedom of intimacy. He said he hasn't been married, but Scalia's quote made him think of his parents and Archie Bunker. "Scalia is a big knucklehead."

Not every hippie we talked to thought Scalia was in the wrong.

One self-proclaimed former hippie said he thought he understood what the justice was trying to say, although he disagreed with Scalia's stance on same-sex marriage. Jim Leytus, 68, lives in the District and was standing outside the White House with his wife, 57-year-old interior designer Troy Leytus. They said he was a hippie but she wasn't -- she's too young -- but they agreed that if Scalia meant marriage in terms of number of partners, that wasn't necessarily wrong (less so if Scalia meant frequency of said intimacy, they said).

"If you're talking about intimacy that's sexual, yes, marriage is limiting," Jim Leytus said. "I mean, that's what it's supposed to be, in theory."

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Is the GOP Relieved Over SCOTUS Obamacare Decision
 by Kevin Price
6/26/15
Huffington Post

The tension was palpable in the weeks leading to the latest decision on the Affordable Care Act (ACA), also known as Obamacare. The latest decision was regarding the constitutionality of the exchanges that are designed to fund those who are regarded unable to afford paying the entire cost of coverage themselves. The majority of states (34 to be exact) did not create such exchanges. Opponents of Obamacare argue that the law makes it clear that without the exchanges, ACA was unconstitutional.

Again, Chief Justice John Roberts came to the rescue of the struggling healthcare law. His colleague, Antonin Scalia has described the decision as one that was very political, but not necessarily legal. In a scathing dissent, Scalia attacked the incredible calisthenics the 6-3 majority had to perform in order to "save" this law. Representing the minority opinion, Scalia wrote, "We should start calling this law SCOTUScare." As noted by Business Insider, "The case revolved around the interpretation of a phrase that stated that healthcare exchanges must be 'established by the State' in order to receive tax credits. Scalia said that he was baffled that the majority of the justices could interpret this to mean that the federal government could give tax credits in states where exchanges weren't established by the state." Conservative critics are seeing a bit of Orwellian logic in this decision. Sure, it is the "state" that is providing the exchanges, but not Texas, Indiana, or the many others in contention, but the ominous "STATE" known as the oppressive government.

Regardless where conservatives and other critics stand on the decision, it passed the Supreme Court's muster. Response by Republicans in general, and the presidential candidates in particular, have been predictable. We will hear many of them say, "If you elect me I can make this terrible thing to go away." However, this predictable backlash actually sets the stage for a GOP that might actually be relieved by the Supreme Court decision for at least a couple of reasons.

First of all, Republican gains in the U.S. House in 2010, 2012, and in 2014 (also picking up the U.S. Senate that year) are directly linked to their ability to make Obamacare a referendum issue. If they had won this court decision, the perception would be (whether true or not) that the Affordable Care Act was history. Sadly, after being out of the White House since the elections of 2008, the GOP is still a single issue party. What on earth would they do if that single issue were to disappear.
Second, if this had been overturned, the decision could have created a great deal of chaos as Republicans tried to respond to the turmoil that such a turn would take. Remember, the GOP is in charge of both Houses of Congress and although Republicans give a tough talk about the need to abolish Obama's healthcare program, there is nothing to replace it that has widespread consensus (although are many debate worthy bills). Imagine if GOP White House contenders had to defend the chaos that Obamacare's overturn would create? Imagine how difficult it would be for the GOP to hold both the House and Senate if the vacuum that would be created by Obamacare's overturning would be filled with chaos?

One could not help notice that the steps of the Supreme Court had far more proponents of the law than opponents. Part of the reason for this is that the GOP has not offered any serious and comprehensive reforms to replace ACA. The momentum will typically be on the side with a plan. Any plan.

With the lack of preparation that the GOP is so famous for, what should be a sad day for those who oppose Obamacare, there might be a collective sigh of relief. With a single issue party, without a plan to replace that policy in the wings, is it any wonder many doubt the GOP's ability to win back the White House in 2016?

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