Saturday, February 13, 2016

TONY "THREE FINGERS" SCALIA IS DEAD! Jonathan Chait: "Immediate Foreseeable Impact is Staggering" as Aggressive Rightwing SCOTUS Judicial Activism is Put On Hold for Time Being

**This entry was posted February 13, 2016.**

Huffington Post headlines from around 7PM tonight announcing the dead of Supreme Court Justice Antonin Scalia, February 13, 2016.

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Associate Supreme Court Justice Antonin Scalia -- a.k.a., "Tony Three Fingers" and leader of the "Scalia 5" bloc -- has died at age 79.

Details are unclear but he was found dead this morning at an isolated, posh resort called Cibolo Creek Ranch in the Texas Big Bend country about 40 miles south of Marfa (!). Oh, and I should point out the irony of the fact that Scalia died in the state so closely associated with the man he made president, George W. Bush.


Scalia, the longest serving, most controversial, probably most gifted rhetorically and in writing, and certainly the atavistically meanest of the Justices, was the godfather of an aggressive rightwing judicial activism. A proponent of the bullshit overclass self-serving theory called "originalism" and "textualism" (sometimes loosely and imprecisely called "strict constructionism") -- the kind of notion that gets Wall-P all tingly all over because it presumes all answers are known with a zero-dimensional simplicity that gives intellectual justification for sidestepping any governing responsibility toward the non-rich and non-powerful -- Scalia would often say that the U.S. Constitution is "dead, dead, dead."

As of today, Scalia is "dead, dead, dead."

"Eh. Eh. Eheheh. Scalia was a great man whose legal philosophy was the robust and well-grounded idea that the Constitution is a dead document, the meaning of which can only be determined by the exact thought processes of those who wrote the words, and that can only be changed by --"

Oh, shut up, Wall-P, you little stooge-bot tool of the oligarchical overclass. Your views are whatever Fred Hiatt's Washington Consensus and The Staff allow you to have.

New York Times online headline announcing the death of Justice Antonin Scalia, 7:35PM February 13, 2016.

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He leaves behind a wife, nine children, and an astonishing 28 grandchildren (I've even seen higher figures). He also leaves behind a world far worse for his having been a Supreme Court justice including giving us the presidency of George W. Bush and all that happened in it including the Iraq War catastrophe.


I don't want to go on too much about this topic, although it promises to roil our ugly and polarized political climate even more during this presidential election year -- and it is extremely unlikely Senate Republicans will give whoever President Obama nominates any hearing whatsoever, never mind an actual vote.


Regardless, Scalia's death represents a major roadblock for rightwing judicial activism by the Supreme Court for the time being since, at best, major pieces of legislation and regulations (including President Obama's Clean Power Plan) will be meet with a 4-4 tie that fails to undo them rather than that goddamn 5-4 split that invariably favored rightwingers (and that is the preferred in-your-face method of GOP judicial activism). This is true whether or not a new Justice is confirmed.


Jonathan Chait already has a good piece on precisely this point (link embedded): How Scalia's Death Will Change the Supreme Court, America, and the Planet.

Here is an extended excerpt:

"The death of Supreme Court Justice Antonin Scalia is a sad and tragic event for his loved ones, including 28 grandchildren and a large network of admirers. The political stakes for the country, its governing institutions, and, yes, the planet dwarf them in scale. The mortality of Supreme Court Justices is an element of wild randomness in the American political system. Enormous stakes rest upon the frail vulnerabilities of human flesh. Thurgood Marshall's retirement 13 months before the 1992 presidential election, and two years before his death, paved the way for his replacement by Clarence Thomas. In today’s polarized era, no justice who had the physical ability to stay on would depart a Supreme Court seat under an opposing party president. Whether and how the current system can handle these jolts of random chance is an open question."

Justice Antonin Scalia with his fellow Justice and far rightwing radical Clarence Thomas.

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"The immediate and easily foreseeable impact is staggering. Last week, the Supreme Court issued a stay delaying the implementation of Obama's Clean Power Plan. The stay indicated that a majority of the justices foresee a reasonably high likelihood that they would ultimately strike down Obama's plan, which could jeopardize the Paris climate agreement and leave greenhouse gasses unchecked. Without Scalia on the Court, the odds of this drop to virtually zero. The challenge is set to be decided by a D.C. Circuit panel composed of a majority of Democratic appointees, which will almost certainly uphold the regulations. If the plan is upheld, it would require a majority of the Court to strike it down. With the Court now tied 4-4, such a ruling now seems nearly impossible."


"Even if the Senate does not confirm any successor, then, Scalia's absence alone reshapes the Court. Modern conservative legal doctrine has moved toward a form of aggressive judicial activism, devising -- or, more precisely, resurrecting -- theories that allow the Court to strike down vast swaths of laws conservatives find objectionable. Activist Courts require a majority. That is now gone."


Chait goes on to talk about what happens next -- and how all the social norms that governed appointing new Justices to the Supreme Court have broken down in our current era including the "Thurmond Rule" whereby the Senate would not confirm any new judicial appointees during the last six months of a presidential election year.


Already all the Usual Rightwing Suspects of the Conservative Media-Entertainment and Political Complex, Inc. (including the all-awful GOP presidential candidates) have chimed in via social media and other avenues demanding that there be no new nominee until the next administration -- which is just under 12 months away -- but I'm not going to give any of them the time of day to post what they say in this forum. You can find it yourself if you're so inclined.

I will say that Benji Wittes must be in mourning because it was his pride and joy as a WaHoPo editorial writer on legal affairs to provide neolilberal justifications on behalf of the Washington Consensus for whatever neoconservatives and rightwing oligarchs want. This is part of that strange and ugly synergy between the two blocs.

It has also contributed to our poisoned political era -- along with information bubbles and the Foxification of everything -- but this is too big a topic to get into now.

Anyway, goodbye Justice Scalia. I'm sure some people will deeply miss you.

--Regulus  

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