A final comment on Scalia’s dissent in EPA v. EMA Homer City Generation
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.
i agree with you about seriously dangerous times in what amounts to an attempt to take over the country’s legal system.
but you don’t help your case by ranting about elderly or middle aged white men, or time warps, whatever that is.
i know lots of elderly or middle aged white men who would be on your side if you were not scaring them to death. and i have been around a long time and read lots of history. i don’t see what’s so different this time. just that i know more about our own times particular criminals in high places. democracy is an ongoing struggle. one which we can lose. ultimately.
Point taken, Dale, about middle-aged and elderly white men. I’ll remove it.
But the time-warp issue is hugely important, because every one of these five people comes out of the Conservative Legal Movement begun in 1978–Scalia was a founding member of the Federalist Society, founded that year (think: AFP for lawyers and judges)–and all but Kennedy worked in the Reagan Administration to remake American law to reflect the very specific specifications of this particular legal movement.
I just did what Scalia did last week in his EPA-case dissent. I quietly replaced the offending language–middle-aged and elderly men–with “people.”
In fact, one of my pet peeves–something I want to write about here at AB–is the liberal insistence on having a certain percentage of women, blacks, Hispanics, on the bench. The result is–and I’ve seen this up very close–is that incompetent or banal people who have political clout of some sort are appointed simply because of their gender or race, while highly intelligent women, blacks, or Hispanics who have no special political clout, or who have less clout than someone whose actually practiced law representing genuine ordinary individuals rather than a government or government entity, gets the nod.
One glaring instance, in my opinion, is Elena Kagan’s selection over white male runner-up Sidney Thomas, or not-even-considered Jeffrey Fisher. (I plan to write specifically about this.) Kagan is a dependable vote in high-profile culture-wars cases, but wouldn’t be caught dead actually writing or joining a dissent to denial of “cert.” in a state-conviction federal habeas case. Hell; she usually votes with the conservatives when they reverse a lower-federal-appellate-court grant of a habeas petition. She seems to have an actual conflict of interest, in fact–or, more specifically, she seems not to understand the very law that she apparently was involved in helping negotiate when she was an assistance White House Counsel in the Clinton administration in 1995-96.
She’s really just a self-promoter–someone who’s built a career on mastering the art of office politics and the like. She was a one-time colleague of Obama’s, and apparently a friend, and her appointed her his Solicitor General although she had never argued an appeal at any level and had never tried a case. She was incompetent in that job. She’s managed to gain a reputation for brilliance, although no one seems able to nail down why. As an academic, she reportedly had almost nothing published, and certainly nothing that had any legs at all. Her academic area of expertise was in, I think, commercial litigation of some sort. Obama didn’t care what it was, or what she would try to do (or not) on the Court.
I really can’t stand Elana Kagan.
thank you. I usually don’t get results. You are going to find it harder to negotiate a “competence” line…. “interest group” politics is a much easier sell… though ultimately counterproductive I think.
I don’t know Kagan, but I have seen the “promoted because they understand office politics or are friends of the boss” too often to doubt that’s “the way things are.”
As to whether Roberts et al are “people,” I am not sure. Reptile hearted beings from outer space seems more likely to me.
We may need to find a way to talk about exactly what it is that we don’t like… cruelty, stupidity, crime in high places… without relying on lazy over-generalizations, or simply anti-generalizations.
I don’t think the “time warp” is the real issue in the “conservative legal movement.” Those guys might have got their foot in the door because of whatever was happening in 1978, but they own the door now, and they are not going to go away because their time has passed.
Don’t hold back your real feelings!
Actually, the real problem with Kagan was that she was just another garden variety, ho-hum Ivy League and Harvard Law School graduate. This court is exclusively Ivy League, and perhaps it is no coincidence that it is vying with the Lochner and Dred Scott eras courts for worst in American history.
I have nothing against Harvard or the Ivy League. In fact, some of my best friends went either to Harvard or another Ivy League school. In fact, I’m jealous of all of them, because while I am as smart as or smarter than any of them — notice the perfect grammar there — I did not master the ability to divine the professor’s desired answer to do quite well enough grade-wise to get into any of them. The test scores were fine, meaning I had a gift, Roy, but it was not enough.
With that aside aside, the Supreme Court should have some variety of perspectives. Of course, it cannot be “representative” as such, although there has been a rough ethnic test for some seats. But even if the ethnic distribution is adequate, too many conservative Catholics, and too many — exclusively, that is — from elite Eastern law schools does not offer that perspective. Instead of Kagan, Obama should have nominated Diane Wood from the 7th Circuit, who not only could have brought a heartland perspective and well-healed battle scars and well-honed analytical skills from wrestling the likes of Posner and Easterbrook into submission more times than they would like to admit, she also would have brought a law degree not from Harvard or Yale but from, gasp, the University of Texas.
Unfortunately, the President played into the snooty, elite liberal image, as he did with most of his major appointments, letting Republicans play their twisted version of the populist card and make it work with too many voters. The result of the collection of such decisions was the 2010 debacle, mass disillusionment from the belief that the game is rigged even by Democrats for the insiders, the prospect of continued dismal turnouts, and a paralyzed government. Let’s chalk it up to poor brand management, a Democratic Party specialty.
nah, Urban, you misunderstand the Harvard brand
these people are so brilliant they have never had to think about anything.
top of their head is good enough.
Good heavens, Urban Legend. I guess you’re unaware of how Diane Wood managed to land her appointment. Talk about wrestling things from others! Or, maybe, like, being willing to step over your own grandmother’s dead body to get where you want to go. She had no particular qualifications for the job. Others–ones she walked over–did.
No, Diane Wood is not what her PR crusade suggests. She spent her first decade or so as an ostentatious “moderate,” always, always looking over her shoulder at whatever might come in between the her and the coveted elevation to the Supreme Court she so, so wanted. She went to U.-Texas rather than Harvard or Yale. Big deal. She also actually practiced law for all of about two years, and suffice it to say, not as counsel to the hoi polloi. She’s a decade-older Elena Kagan, almost to a T. She’s absolutely dependable on high-profile woman’s issues/culture wars issues. After all, she, like Kagan, knew that that is the only real prerequisite, y’know, legal-wise, on the road to becoming a justice under a modern Democratic president. On other issues–ones that wouldn’t be notches on her climbing belt–good luck.
And by the way, I’ll just say that she doesn’t always wrestle the two judges you mention. In one instance I know of, she did the bidding of one of those judges by allowing him to use her as his puppet, actually dictating the outcome in something she knew nothing about. He himself couldn’t participate, so she played his stooge. Really, quite literally.
The wonderful Ninth Circuit Judge Sidney Thomas is not an Ivy League alum either. His BA is from Montana State, his law degree is from U. Montana, and — and –he practiced law, for a long time. Some of his clients were actual ordinary individuals. And the wonderful Jeffrey Fisher’s JD is from U-Mich. Google him. Or check him out on Stanford Law School’s website. Read about HIS career as an authentic practicing lawyer. Most notably, at the Supreme Court. Including this term.
But please, please don’t sing the praises of someone you know about only from her PR. Diane Wood? Please.
Btw, I got into an email shouting match with Glenn Greenwald about Wood back in 2009, when the contest apparently was between Sotomayor and Wood, and Greenwald was trying to sell Wood via his platform on Salon. He didn’t like Sotomayor–at all. I posted elsewhere, under a pseudonym, about Wood, and forwarded the link to Sargent. None of it was pretty.
Urban Legend, I apologize to you for my nastiness in that response. Obviously, mention of Wood as the answer to our liberal prayers hit a pretty live nerve for me. But that’s not your fault. Actually, it’s her’s.