I haven’t read Scalia’s dissents–either one of them–in EPA v. EMA Homer City Generation, and don’t plan to. Nor did I plan to post more than I already have about it. But Kenneth Jost has read it, and at his blog Jost on Justice points out another line in the first of the two:
In dissent, Scalia saw the EPA as making up the approach on its own in the face of an “unambiguous” statute. Even while calling the law “stupid,” Scalia said the episode was “a textbook example” of why many Americans believe they are governed “not so much by their elected representatives as by an “unelected bureaucracy.”
Some Americans do believe they are governed “not so much by their elected representatives as by an “unelected bureaucracy.” Other Americans, though, believe they are governed “not so much by their elected representatives as by a radical bare majority of justices all but one of whom worked in the Reagan administration and has a quarter-century-old list of what is effectively legislation that they are hell-bent on enacting by Court fiat–largely by striking down legislation enacted by none other than the elected federal and state representatives.
Scalia takes off against other parts of government in much the same way. When the court considered the Voting Rights Act two years ago, Scalia cited its overwhelming approval by both chambers of Congress as evidence that it was all wrong. When Roberts led the court in a narrow ruling on campaign finance law in 2007, Scalia accused the chief of “faux judicial restraint.” In Scalia’s disordered mind, the rest of government is so often so very wrong — and he alone is not afraid to say so.
There are by now so many examples of federal and state laws that this five-member legislature is striking down under the guise of fanciful interpretations of one or another Constitutional Amendment that it’s hard to keep track. But the ruling last year in the Voting Rights Act case, Shelby County, Ala. v. Holder, really is in a separate category, in my opinion. In that opinion, this group appears to have stricken down Section 2 of the Fifteenth Amendment, which expressly authorizes the type of legislation that they struck down as unconstitutional in Shelby County.
There, they concocted a constitutional theory that, best as I can tell, is that the structure of the original Constitution–the Articles, as opposed to the Amendments–is such that it supersedes constitutional amendments that alter the “federalist” power structure. The federalist power structure being that states are sovereigns vis-a-vis the federal government, except when a state legislature enacts a law that contradicts one of the Reagan-era Conservative Legal Movement’s goals. State campaign-finance regulations, for example, even ones enacted a century ago in, e.g., Montana, are being stricken as violative of the First Amendment right to buy elected officials.
I’ve said a few times here at AB recently that I think we’re now in seriously dangerous territory, in which gimmicky redefinitions of common word and phrases, and emotionally manipulative sleights-of-hand faux analogies, are being employed casually and wholesale by this group of five people trapped in a bizarre, airtight time warp, in what amounts to a capture of this country’s legal system.