Antonin Scalia is one of nine justices on the US Supreme Court.  As such, it could be (somewhat fancifully) imagined that he holds roughly 1/27 of the power of the federal government (1/3 to the Supreme Court under the Separation of Powers doctrine, 1/9 of which, as a Supreme Court justice, he holds personally). 

E.J. Dionne, Jr. is a political columnist for the Washington Post who is to political journalism what Paul Krugman, through his economics column in the New York Times, is to economics journalism.  Dionne, having pretty much nothing more than his opinions as his base of power, the fourth estate never having been formally recognized as holding any sort of power at all, fashions his principled political opinions from the impulses driving his lizard political brain, just as Krugman fashions his economic insights from his own lizard economic brain.  The latest of Dionne’s lizard brain impulses is to pronounce that Justice Antonin Scalia of the US Supreme Court should step down because he is too political.  Imagine, a man holding 1/27th of the power of the federal government is too political. 

Dionne most assuredly hates Justice Scalia and all he stands for–blocking, as is presumed Dionne believes, the way between where society is now and the socialist nirvana it might become (if Dionne and his cohorts’ prescriptions are implemented).  Probably out of despair and panic at the impending Supreme Court decision on Obamacare (his column recommending Scalia’s ouster ran the day before the Obamacare decision was to be released), Dionne’s lizard brain set his rational mind to conjuring reasons Scalia should resign, undoubtedly so a more reasonable justice (i.e., one with opinions more like his own), might be appointed, and the long march to the ascendancy of his political ideas might proceed apace.

In the column calling for Scalia’s ouster, Dionne catalogs the list of outrages Scalia has committed.  They include Scalia’s comments deriding Obama’s recent proclamation that he would henceforth ignore a portion of federal immigration law; Scalia’s refusal to recuse himself from a case involving Vice-President Cheney after having flown on Air Force Two (!) to go duck hunting with the Vice-President (perhaps the fact Scalia didn’t suffer a gunshot wound proves that he and the Vice-President were in cahoots), and a speech Scalia gave at the University of Frieburg in Switzerland that indirectly revealed his opinion on Guantanamo a few weeks before the Court was to hear a case involving Guantanamo detainees (isn’t that almost treason, to issue an opinion on American foreign affairs in a foreign land?).  In other words, Dionne accuses Scalia of having political associations and opinions, and (the horror!) of revealing them to the public.   

Dionne is either really naive, or just plain stupid, or worst of all, believes his readers are stupid.  All the justices on the Supreme Court have deeply-held political biases.  All of them are political ideologues.  Their political biases, along with the ability to dress them up as representing profound legal principles, is the reason they are appointed to the Court.  Supreme Court adjudication is to politics what war is to diplomacy; it is political conflict by another means.  And just as in war, there are no abiding principles; there is only victory or defeat.  At least by openly revealing his political biases and how they might bear on his vote at Court, Scalia is being politically transparent, something that should be welcomed from a member of the instinctively obscurant Court . 

Most Americans should by now understand that the Court is inherently political.  It is utterly impossible to understand what the Court has done and does without understanding the politics behind its decisions.  Did the Constitution change between Plessy v. Ferguson in the late nineteenth century, when the Court upheld the doctrine that “separate but equal” accommodations for races were okay, and Brown v Board of Education in 1954, when separate but equal was found to be constitutionally impermissible?   No, only the politics changed.  Some might argue that Brown represented a more enlightened and progressive Court, seeing the error of the previous Court’s ways.  But that hardly could be imagined is what the Court thought of itself for the over half-century that Plessy reigned as the law of the land.   While Plessy was in force, the Court more likely simply considered it the best political compromise in the premises.  The tale of “separate but equal” is just one of many examples of Supreme Court adjudication resolving the politics as best they could be resolved for the times.  When the Court eventually changed its mind on separate but equal, it did so because the politics changed.  The Constitution it was interpreting remained substantively the same.

The Court is a co-equal branch of government; how could it be anything other than political?  The laws it creates through its decisions, operating as it does as a super-legislature, arise from the political tussling in which society is engaged.  That it operates as a super legislature at one step removed from direct political processes does not change its inherently political nature.  Alas, there has never in history been, and never will be, a moment when men are governed by laws instead of men.  It is the fatal flaw of Plato’s proposal that rule by Guardians would result in a sort of Utopia;  even if it is imagined that the Court represents the embodiment of Plato’s ideal of Guardian rule, who then rules the Guardians?  In the end, rule always resolves to political expediencies, which are determined by men, not by abstract legal concepts written in a book or expressed in a statutory scheme.

We would do well to have more justices like Scalia, willing to express the political views animating their legal judgments.  It would render the Court a great deal more transparently accountable for the politics to which it is always and forever beholden.   I wish that all the justices were more forthcoming about the political philosophies animating their legal opinions.   I know I wouldn’t agree with them all, but expressly knowing their political opinions might make the often contortionist logic used to fit their views to the law and the facts of a particular case a bit easier to understand, if not more palatable.

Dionne claimed in his diatribe against Scalia that “unaccountable power can lead to arrogance”.   It can actually lead to much worse than arrogance.  But neither Scalia, nor any of the other justices, have anything approaching “unaccountable power”.  Scalia has one lone vote to cast on decisions before the Court.  He can not force any of the other justices to agree with him.  He can bray in front of TV cameras all day long, but he still has only that one vote; his political opinions animating it are only as powerful as the political winds blowing his way.  In case Mr. Dionne is poor at math, 1/27th (or 1/9th) doesn’t comprise a majority, and could therefore hardly be arrogantly exercised as unaccountable power, which is sort of how things were designed from the beginning to be.  Scalia and his brethren may effectively be legislators for life.  But all they have in the way of ultimate political power, that is, all they have the power to do without suffering political repercussions, is to cast a vote on a case before the Court.   The more transparent are their political motives when casting it, the better. 

 

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