Justice Antonin Scalia

  • June 26, 2013

    by Jeremy Leaming

    Beyond providing victory for equality, today’s Supreme Court opinion striking an integral provision of the so-called Defense of Marriage Act sent Justice Antonin Scalia into a fitful and contradictory rage.

    Though Scalia joined the majority opinion of Shelby County v. Holder, which invalidated a congressional action, usurping Congress’ constitutional authority to enforce the 14th and 15th Amendments, today he railed against the majority for invalidating Sec. 3 of DOMA, which unlike the Voting Rights Act, worked to discriminate against a certain group of people -- lesbians and gay men. So yesterday, Scalia joined his right-wing colleagues in gutting a landmark federal law aimed at preventing discrimination, while today he lodged an over-the-top dissent against striking down a provision of a blatantly discriminatory federal law. And he did so, as TPM’s Sahil Kapur notes, in fiery fashion – rather like he did in dissenting in Lawrence v. Texas issued 10 years ago today invalidating a state law discriminating against lesbians and gay men.

    According to Scalia, the majority in U.S. v. Windsor led by Justice Anthony Kennedy provided a “jaw-dropping” expansion of judicial review. “It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and every-where ‘primary’ in its role,” Scalia fumed.

    He didn’t stop there, adding the Constitution’s framers would not recognize the “black-robed supremacy that today’s majority finds so attractive.”

    Scalia, after grousing at great length, that the majority should not have decided the case, went on to provide his “view of the merits.”

    And his views on lesbians and gay men and laws that discriminate against them have not moved in 10 years.

  • June 20, 2013

    by Jeremy Leaming

    During her featured remarks at the 2013 ACS National Convention, Sen. Elizabeth Warren (D-Mass.) ripped the federal bench, and the Supreme Court in particular, for a pro-corporate trend. Today the high court issued an opinion in American Express Company v. Italian Colors Restaurant that buttresses Warren’s sharp critique.

    In the American Express case, the Court’s right-wing justices found that the Federal Arbitration Act (FAA) blocks courts from invalidating contractual waivers of class arbitration, another blow to individuals hoping to band together to hold corporations accountable for malfeasance. A group of merchants who accept American Express cards had lodged a class action against the financial giant arguing that its rate on accepting American Express cards violated federal antitrust laws. The high court led by Justice Antonin Scalia, however, essentially held that a clause in the American Express agreement barring class action arbitration trumped antitrust laws.

    Scalia maintained that the FAA was enacted by Congress as a “response to widespread judicial hostility to arbitration” and that its text “reflects the overarching principle that arbitration is a matter of contract. There is no ‘contrary congressional command’ that “requires us to reject the waiver of class arbitration here,” Scalia wrote.

    Scalia notes the merchants argued that forcing them to litigate individually would prove too costly, but concluded “the antitrust laws do not guarantee an affordable path to the vindication of every claim.” Later in the opinion, Scalia writes, “But the fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy.”

    As Media Matters’ Senior Counsel & Director of its Courts Matter project Lara Schwartz noted, “In other words, Scalia essentially was saying it’s OK if the rules make it impossible to win as long as they don’t make it impossible to play.

    Justice Elena Kagan lodged a dissent, joined by Justices Ruth Bader Ginsburg and Stephen Breyer. (Justice Sonia Sotomayor recused herself in this case). Kagan wrote, that the “owner of a small restaurant (Italian Colors) thinks that American Express (Amex) has used its monopoly power to force merchants to accept a form contract violating the antitrust laws.” But that same agreement with Amex barred the restaurateur from bringing the claim.

    “And here is the nutshell version of today’s opinion, admirably flaunted rather than camouflaged: Too darn bad.”

  • June 17, 2013

    Editor's note: This post has been updated to include comment from UC Davis School of Law Professor Gabriel "Jack" Chin.

    by Jeremy Leaming

    The U.S. Supreme Court voting 7-2 dealt a setback to Arizona’s rigid voter ID law, saying the state’s additional citizenship requirements were preempted by federal elections laws.

    The setback could be seen as a victory of sorts for opponents of state efforts aimed at crafting and implementing more hurdles to voting, ones that disproportionately impact minorities, poor people, the elderly and students. Justice Antonin Scalia’s opinion, however, left the door open for Arizona and other states to try to alter the National Voter Registration Act (NVRA, also known as motor-voter) to impose stricter requirements to vote. 

    In Arizona v. Inter Tribal Council, the majority led by Scalia found that Arizona’s Proposition 200 provision requiring elections officials to “reject any application for registration that is not accompanied by satisfactory evidence of United States citizenship” must “give way” to the federal form created by the Election Assistance Commission (EAC). The NVRA requires states to “accept and use” that federal form. As Scalia noted, the federal form “does not require documentary evidence of citizenship; rather it requires only that an applicant aver, under penalty of perjury, that he is a citizen.” Scalia was joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

    The NVRA and the EAC were created pursuant to the Constitution’s Elections Clause (Article I, Section 4), which states, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations ….”

    Scalia wrote that the “textual question” in the case centered on whether the NVRA’s requirement that states “accept and use” the federal form preempts Arizona’s state-law requirement that officials reject “the application of a prospective voter who submits a completed Federal Form unaccompanied by documentary evidence of citizenship.”

    Arizona officials argued that its reading of the federal law allowed it to reject a federal form if it failed to include the additional information set out in the state law.

    Scalia said it “is improbable” that the federal law “envisions a completed copy of the form it takes such pains to create as being anything less than ‘valid.’”

    He continued, “States retain the flexibility to design and use their own registration forms, but the Federal Form [created by the EAC]  provides a backstop: No matter what procedural hurdles a State’s own form imposes, the Federal Form guarantees that a simple means of registering to vote in federal elections will be available.”

  • April 18, 2013

    by Jeremy Leaming

    Whether Justice Antonin Scalia is toiling away in the cloistered halls of the Supreme Court or speaking before right-wing think tanks or groups of law school students he has over the years proven a knack for annoying large swaths of people. And does anyone believe Scalia cares?

    What Scalia has done is to tamp down a handful of Supreme Court reporters who for years assured us the conservative justice was the high court’s sharpest thinker and nimblest writer and witty too. Those reporters, however, have had to give up the narrative thanks in large part to Scalia’s increasingly cranky, bizarre, racially insensitive, and unnecessarily over-the-top commentary. It has also helped that a lot more people call out Scalia for his ridiculousness. He might thrill American Enterprise Institute or the Federalist Society, but others paying attention are increasingly seeing a serial offender, with a wobbly way of interpreting the Constitution.

    He’s on bit of a roll this year. In February during oral argument in Shelby County v. Holder, the case involving a challenge from a largely white community in Alabama to the Voting Rights Act’s integral provision, Section 5, Scalia said the Act perpetuates racial entitlement. But Scalia couldn’t stop there; he had to add flippantly that the reason Congress reauthorized the Voting Rights Act was that lawmakers couldn’t bring themselves to vote against a measure with such a “wonderful name.”

    What these offensive and flippant asides have to do with the constitutional and other questions before the high court is anyone’s guess. It’s likely the acidity was all theatrics.

    The high court in Shelby will hopefully decide the case by looking at the text and history of the Constitution, in particular the 14th and 15th Amendments, which give Congress great discretion  in creating and enforcing appropriate laws to ensure that states do not discriminate in voting. Scalia’s disdain for the Voting Rights was evident, so it is likely he’ll find a way to contort so-called “originalism” to argue for gutting the law’s primary enforcement provision. (Section 5 requires states and localities, mostly in the South, with long histories of suppressing the minority vote to obtain preclearance from a federal court in Washington, D.C. or the Department of Justice before altering their voting procedures, to ensure they do not intentionally or unintentionally discriminate against minority voters.)

    This week during a talk before some law students in Washington, D.C., Scalia piled on, telling the students that Section 5 is an “embedded form of “racial preferment.”

    George Washington University law school professor Spencer Overton pushes back against Scalia’s racially charged attack on the Voting rights Act.

  • March 26, 2013

    by Jeremy Leaming

    Even before today’s oral argument in Hollingsworth v. Perry, some pundits urged the Supreme Court to go slow on same-sex marriage, essentially arguing marriage should be for the states to hash out and declaring that a Supreme Court decision that all states must recognize same-sex marriage could result in a backlash, thereby setting back efforts to advance equality for the LGBT community.

    After reading the oral argument transcript, it seems that may be what happens since it did not appear a majority of justices were anywhere close to declaring that gay couples have a constitutional right to wed. That’s disconcerting since national polls and polls in California, birth of Proposition 8, reveal strong support for same-sex marriage. That’s not terribly surprising since marriage is about committed couples taking responsibility for each other and why should government officials want to discourage such responsibility.

    Instead, the high court may be ready to dismiss the Prop 8 case on a technicality for it appeared that the high court’s left-of-center justices and possibly Chief Justice John Roberts and Justice Anthony Kennedy were not convinced that a few proponents of California’s anti-gay law are the proper people to be before the court.

    Before Charles J. Cooper, attorney for the proponents of Prop 8, could delve into the substantive argument against same-sex marriage, he was asked by Chief Justice John Roberts, Jr. to address the “standing issue.”

    Cooper said the proponents of Prop 8 “have standing to defend the measure before this Court as representatives of the people and the State of California to defend the validity of a measure that they brought forward.” (As noted in this interview with Columbia Law School Professor Suzanne Goldberg it is a bit odd for the Prop 8 proponents to insist they are representing the interests of the state of California, for the state’s governor and attorney general have both said the law should be invalidated as unconstitutional.)

    Justice Stephen Breyer pointed to a friend-of-the-court brief filed on behalf of former U.S. Solicitor General Walter Dellinger saying it made a “strong argument” that the Prop 8 proponents “are really no more than a group of five people who feel really strongly” that they should vindicate the law.

    The Dellinger brief, in part, argues that the proponents of Prop 8 have “noting more than a generalized interest in” enforcement of the law.  Citing high court precedent, the brief continues, that “the generalized interest a party shares with all members of the public in proper enforcement of the laws is not sufficient” to establish standing.

    Justice Sonia Sotomayor noted that the while the California Attorney General has “no personal interest” in defending Prop 8, she does have “a fiduciary obligation,” to which Cooper agreed.

    The standing question, as the Dellinger brief persuasively argues, could prove to be the winning argument, giving the Court a way to avoid tackling the substantive question of whether gay couples have a constitutional right to wed.

    The substantive argument from Cooper and many of the groups lodging friend-of-the-court briefs centered on an alleged overriding governmental interest in marriage as a tool primarily for promoting procreation.

    Cooper said that Prop 8 proponents are arguing that the States' interest in marraige is about promoting procreation. He told Justice Elena Kagan that the “essential thrust of our position” is that the states have a really strong interest in regulating procreation.

    Justice Stephen Breyer asked Cooper, “What precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as procreation of children that allowing sterile couples of different sexes to marry would not? I mean there are lots of people who get married who can’t have children.”