Appoint a few more Scalias, kiss democracy goodbye

February 22, 2016
Supreme Court Justice Antonin Scalia testifies before a House Judiciary Commercial and Administrative Law Subcommittee hearing on “The Administrative Conference of the United States”  on Capitol Hill in Washington May 20, 2010.  REUTERS/Kevin Lamarque  (UNITED STATES - Tags: POLITICS HEADSHOT)

Supreme Court Justice Antonin Scalia testifies before a House Judiciary Commercial and Administrative Law Subcommittee hearing on Capitol Hill in Washington, May 20, 2010. REUTERS/Kevin Lamarque

Republican presidential candidates such as Senator Ted Cruz (R-Tex.) have pledged to appoint a justice like Antonin Scalia to the U.S. Supreme Court, if given the opportunity. Yet Scalia’s record on issues related to American democracy and elections was dismal — even when judged against the standards of the conservative Roberts court.

Placing a few more Scalias on the Supreme Court would likely put America’s current participatory democracy at risk.

Take money in politics. In 2010, the Roberts court, including Scalia, ruled in Citizens United v. Federal Election Commission that corporations, like individuals, have a First Amendment right to spend money independently in campaigns. Yet Scalia went further — he argued that people have a First Amendment right to contribute unlimited sums directly to candidates, which raised the stakes for undue influence. Scalia, like Justice Clarence Thomas, who often voted with him, would subject laws that limit campaign contributions to strict scrutiny. That means they would almost certainly fail in a constitutional challenge.

anton-roberts-profile

Chief Justice John Roberts listens to arguments from George Washington University law students during a moot court competition in Washington, Feb. 9, 2006. REUTERS/Jim Young

Next, consider the 1965 Voting Rights Act. The Roberts court, including Scalia, decided in Shelby County v. Holder (2013) that Congress no longer had the power to subject states with a record of intentional racial discrimination in voting to special federal oversight of their elections.

Scalia went further, however. He believed that Section 2 of the Voting Rights Act, which provides nationwide protection to racial and ethnic minorities to ensure they have a fair share of political power, should not apply to “vote dilution” claims.

This means that if Scalia had gotten his way, a jurisdiction with 60 percent white voters and 40 percent African American voters would be perfectly free to create legislative districts with all white-preferred representatives. Unless, that is, you could prove intentional racial discrimination, which is extremely difficult. He even remarked, at oral argument in the Shelby County case, that the Voting Rights Act is simply the “perpetuation of racial entitlement.”

Also on redistricting, Scalia led the way in arguing that courts should have no role in policing partisan gerrymandering — the intentional drawing of district lines to give a political party an excessive amount of political power in a state. The only thing that stopped Scalia from getting his way on the court was the opinion of Justice Anthony Kennedy. He essentially left the question open for new argument in a future case.

Supreme Court Justices, from left, Elena Kagan, Samuel Anthony Alito, Jr., Ruth Bader Ginsburg, and Anthony Kennedy participate in prayers at a private ceremony in the Great Hall of the Supreme Court where late Supreme Court Justice Antonin Scalia lies in repose in Washington, February 19, 2016. REUTERS/Jacquelyn Martin/POOL

Supreme Court Justices, from left, Elena Kagan, Samuel Alito, Jr., Ruth Bader Ginsburg, and Anthony Kennedy at a private ceremony in the Great Hall of the Supreme Court where late Justice Antonin Scalia lies in repose in Washington, February 19, 2016. REUTERS/Jacquelyn Martin/POOL

Perhaps most pernicious of all was Scalia’s opinion for three justices in the Supreme Court’s fractured 2007 decision, Crawford v. Marion County Elections Board. Crawford challenged the constitutionality of Indiana’s strict law requiring proof of voter identification at the polling place. Three justices, led by Justice David Souter, believed that the law violated the Equal Protection Clause and was unconstitutional. Three justices in the middle, led by Justice John Paul Stevens, and joined by Chief Justice John Roberts and Kennedy, ruled that the law itself was permissible when applied generally in Indiana. But that anyone who could show that they faced special burdens would be entitled to an “as applied” exemption from the law.

Scalia, for himself and Justices Samuel Alito and Thomas would have gone much further. To Scalia, if the law imposed little burden on most people, it was constitutional to apply it to everyone even if it could be shown that the law burdened some people a great deal. Like the homeless, for example, who might lack valid photo identification.

Scalia’s opinion here was remarkable for its willingness to tolerate great burdens on identifiable groups of voters — even in the absence of any evidence such laws were necessary to prevent fraud or promote voter confidence.

The list goes on. Scalia was in the minority in a decision ruling that a state supreme court justice could not hear a case involving a litigant who contributed millions of dollars to a “Super PAC” supporting the justice for office. The majority ruled that allowing the justice to participate violated the Due Process Clause because it would create an appearance that the judge might be impartial. But this appearance did not bother Scalia.

Scalia similarly dissented when the court decided last year that Florida’s legal rules preventing judicial candidates from personally asking for campaign contributions violated the First Amendment.

Perhaps most famously, Scalia was in the five-justice conservative majority deciding Bush v. Gore, the case that handed the disputed 2000 presidential election to Republican George W. Bush against Democrat Al Gore. Given that Scalia generally adhered to narrow readings of the Equal Protection Clause, he nonetheless signed onto a majority opinion that applied a novel, liberal reading of the clause to find a constitutional problem with the Florida vote count. When pushed on the issue years later in the many public forums at which he spoke, Scalia repeatedly told questioners, “Get over it.”

There was only one respect in which Scalia took a democracy-protecting position in election cases. Splitting with fellow conservative Thomas, Scalia was a strong believer in the value of disclosure of those funding U.S. elections. He famously wrote: “For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.”

Ironically, this is the one case where Cruz might disagree with Scalia because the senator supports the right to undisclosed spending. Indeed, should Cruz win the 2016 presidential election, the next justice he appoints could be well to the right of Scalia on issues of democracy.

So, the nation would see that there is room to roll back voting rights even further than Scalia would have gone — or where the court has already gone.

24 comments

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If you are so lazy or dumb that you cannot get an identification document, you should not be allowed to vote.

DEMOCRACY?! IS THAT WHAT YOU THINK WE HAVE? Wow are you uneducated and just a plain bad “journalist”- we have a REPUBLIC. That is, supposed representation in congress, which the Middle Class actually has none. The poor are fooled by the Dems with fear hate and racist accusation to vote for them, the rich and their corporations like Raytheon, General Dynamics etc. are represented by the Repubs. Us Middle Class have no representation.

Posted by UgoneHearMe | Report as abusive

Scalia practiced a sort of constitutional sophistry: claiming to be conservative, while producing a stream of radical results. And don’t forget that he is in no small way responsible for the current gun-ownership catastrophy.

Posted by markhahn | Report as abusive

Scalia was corrupt. The catered “guest ranch” he died at was one of many comped visits to defendants before his court. Any judge who accepts wining and dining and gifts from litigants in his court…. while a case is pending…. is corrupt. I care how much you like this toad’s politics.

Posted by Solidar | Report as abusive

If you are so lazy or dumb that you cannot get an identification document, you should not be allowed to….. buy a gun.

Oh not so fun now, eh?

Posted by Solidar | Report as abusive

My reaction when I first heard Scalia was dead was, “YAY!” He was a dangerous man to have such power. Now maybe the U.S. stands a chance in the near future rather than the distant.

Posted by JL4 | Report as abusive

“. . . would subject laws that limit campaign contributions to strict scrutiny. That means they would almost certainly fail in a constitutional challenge.”

Only if those laws proved to be unconstitutional.

It’s interesting reading as the author makes these scathing assertions regarding Scalia’s judgements, whilst simultaneously failing to so much as mention the reasoning behind his decisions.

Truth is, we NEED guys like Scalia, just as much as we NEED justices at the other end of the spectrum, in balance on the Supreme Court, so that we can at the same time prevent the constitution from being re-written on a whim, while preserving the ability to make those changes which make sense to both sides of the ideological aisle.

Posted by maddog2 | Report as abusive

Scalia backed into the results that he wanted. It is why Chief Justice Roberts (and others) could use Scalia’s own words against him at times. When his prior arguments were not suited for a current case, he discarded them and took a new position to reach his desired political ends. While the right is likely to mythologize Scalia as they have done with Reagan, I don’t think legal scholars will hold Scalia to such high esteem.

As to selecting his replacement, I invite readers to read The Supreme Court Vacancy, The Constitution, and The State of Politics published February 18, 2016, at The Examined Life and found at alansacker.blogspot.com.

Posted by Alansacker | Report as abusive

The Author obviously disagrees with Scalia’s decisions, most of which added freedom by removing government intrusion. Rather than make the false claim that another “Scalia like” justice would erode freedom, just clearly state why you disagree with the decisions made from your own political point of view. As a journalist you know better than to try to obfuscate the outcome with personal points of view rather than facts.

Posted by Mathmattx12 | Report as abusive

Appoint a few more Sotomayors and Kagans and watch our borders melt away.

Posted by GetReel | Report as abusive

Says he believes in personal liberties….. decides AGAINST gay rights, abortion rights, legalization of marijuana.

Scalia was not a conservative or a scholar. He was just an ordinary corporate tool.

Posted by Solidar | Report as abusive

The premise is true, but leaves out many other reasons why Scalia was a very activist judge, often at odds with the other Justices. He has repeatedly stated that there is no principle of separation of church and state in US jurisprudence and that the government always trumps religion.
If many of his “conservative” supporters where aware of this, they might change their attitude on his supposed “fairness” with respect to the Constitution.

He also states that he has never been wrong in ANY of his judicial decisions, yet the majority of the time his is the dissenting opinion. Are his fellow Justices so frequently wrong? This is one of the symptoms of a sociopath, not a reasoned intelligence (something he shares with some of the candidates for PotUS and his long-time BFF, Dick Chaney).

It’s time for another sociopath on the Supreme Court to die as well, Justice Thomas, an extreme nutcase who belongs in a mental institution.

Posted by ptiffany | Report as abusive

The premise is true, but leaves out many other reasons why Scalia was a very activist judge, often at odds with the other Justices. He has repeatedly stated that there is no principle of separation of church and state in US jurisprudence and that the government always trumps religion.
If many of his “conservative” supporters where aware of this, they might change their attitude on his supposed “fairness” with respect to the Constitution.

He also states that he has never been wrong in ANY of his judicial decisions, yet the majority of the time his is the dissenting opinion. Are his fellow Justices so frequently wrong? This is one of the symptoms of a sociopath, not a reasoned intelligence (something he shares with some of the candidates for PotUS and his long-time BFF, Dick Chaney).

It’s time for another sociopath on the Supreme Court to die as well, Justice Thomas, an extreme nutcase who belongs in a mental institution.

Posted by ptiffany | Report as abusive

“Appoint a few more Sotomayors and Kagans and watch our borders melt away.”

Racist republican statement. Data reveals that Obama has deported more illegal Aliens than Bush or Reagan.

http://www.dailykos.com/story/2012/06/14  /1099870/-Record-level-deportations-con tinue-under-Obama-Administration

Posted by Solidar | Report as abusive

We don’t need another Scalia. Republicans are nuts to openly delay confirmation of a nominee. What if they lose the presidential election. Who do they trust more to pick new Justice, President Obama or Hilary?

Posted by jcusa777 | Report as abusive

A few more Presidents like Obama and kiss the Republic good bye. We don’t need another Scalia. I can’t believe the Republicans are openly planning to delay confirming any nomination by Obama. What if they lose the presidential election. Who do they trust the most to pick a Justice, President Obama or Hilary.

Posted by jcusa777 | Report as abusive

Oddly enough, almost everything Prof. Hasen mentions in this article goes to show that the late Justice Scalia was not only a superb legal mind, but also a decent man with a healthy dose of common sense. Prof. Hasen wrote the piece in order to inform us that he himself happens to dislike the political implications of Justice Scalia’s work on the bench. Which tells you more about Prof. Hasen than about the late Justice.

Posted by danieldeyl | Report as abusive

@Solidarracist. Obama fudged the numbers so that persons caught crossing the border were classified as deportees. BP officers are told to stand down. They sued Obama to be able to do their jobs.

Posted by GetReel | Report as abusive

Again, bush had the highest vote total in Florida.

Posted by DaddyCatALSO | Report as abusive

Appoint a few more Scalias and watch the murder rate go down, drug addiction will go down, robbery, illegal boarder jumpers, and terrorists to name a few. You may kiss your view of democracy goodbye, and say hello to a better quality of life.

Posted by Ksao | Report as abusive

@GetReem: Can you prove any of that? Do have a source to cite?

Posted by Solidar | Report as abusive

@solidar, Apparently not, but we knew that.

Posted by Whipsplash | Report as abusive

Scalia’s decisions were anti-freedom. You cannot claim to be for greater freedoms, while voting AGAINST gay rights, abortion rights, or legalized marijuana.

Scalia was just a common corporate shill who bent the law to serve his corporate backers. Even the trip he got caught dying on…. was a gift from a litigant in his court.

Posted by Solidar | Report as abusive

How many non-citizens participate in U.S. elections? More than 14 percent of non-citizens in both the 2008 and 2010 samples indicated that they were registered to vote. Furthermore, some of these non-citizens voted. Our best guess, based upon extrapolations from the portion of the sample with a verified vote, is that 6.4 percent of non-citizens voted in 2008 and 2.2 percent of non-citizens voted in 2010. Read more at: http://www.nationalreview.com/campaign-s pot/391134/jaw-dropping-study-claims-lar ge-numbers-non-citizens-vote-us-jim-

Posted by americangrizzly | Report as abusive

Funny…if we are all naive enough to think that we have a working democracy and not a hidden financial oligarchy instead is mistaken.

Posted by Fredinkc | Report as abusive