At the risk of beating a dead horse, I’d like to address the accepted public narrative about Antonin Scalia and his vaunted reverence for the U.S. Constitution. Repeatedly we are told that this man may have been sharp and sometimes cruel in his opinions and dissents and queries to petitioners, but it was always in the service of his deep and abiding respect for the great founding document of the United States. Most of us take this at face value, having too little understanding of constitutional law and too little time to look into either the law or Scalia’s many rulings to judge its validity. But Renata Adler, a renowned journalist who has written for the New Yorker and many other publications (and is by no means ‘liberal,’ skewering 60s leftists mercilessly), needed only one of Scalia’s major decisions—it was actually a concurrence in which he and the Supreme Court, in Bush v. Gore, essentially handed the election of 2000 to George W. Bush—to demonstrate that the armor of originalism in which Scalia cloaked himself was so full of holes it might as well have been cheesecloth, or something more scatological. The article, collected in a new book of Adler’s pieces entitled After the Tall Timber (NY Review Books: 2014), is titled “Irreparable Harm,” and first appeared in The New Republic on July 30, 2001. What Adler concludes is that the Supreme Court’s decision to stop the hand counting of votes in Florida, thus granting Bush’s petition for a “stay” and thereby handing him the election, was “the most lawless decision in the history of the Supreme Court.” In the end, this may have been most fitting: not only was George W. Bush the most lawless president in our history, he was made president by an equally lawless Supreme Court under Chief Justice William Rehnquist.
But to get back to Scalia. First, we must know that the decision in Bush v. Gore was made by the Supreme Court per curiam: which means it was an unsigned decision by the whole Court, with no single justice writing the decision (and thus taking responsibility for it), but with “concurrences” by Justices Rehnquist, Scalia and Thomas. Scalia’s concurrence is what Adler goes after most severely, though she also slams Rehnquist’s words as well. She first points out that, historically, a “stay” was granted only in an emergency so dire that allowing someone to continue doing the act at issue threatened “irreparable harm” to the petitioner—harm that could not be undone. It also had to be the case that granting the “stay” would not harm the public interest. Thus, in his concurrence, this was the issue that the great Justice Scalia addressed. If the manual counting of votes in Florida continued, he wrote, it
“does in my view threaten irreparable harm to the petitioner [i.e. Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.”
A quick look at what Scalia has written will explain why Renata Adler jumps on this like the proverbial dog on a bone. Scalia doesn’t write that the irreparable harm will strike the petitioner due to any objective or legal merit in his case. The alleged “irreparable harm” will come from what the petitioner [Bush] “claims to be the legitimacy” of his election. And the harm will take the form of “casting a cloud” over this claimed or alleged or premature (the vote count was ongoing) legitimacy. Adler’s scorn can hardly be contained: “Well there it is,” she writes:
The irreparable harm of “casting a cloud.” In the long and honorable tradition of injunctions and stays, this “irreparable injury” is a new one. Not just a cloud, but a cloud on “what he claims to be the legitimacy” of what he is claiming. By that standard, of course, every litigant in every case should be granted an injunction to halt the proceeding that offends him: the prosecutor casts a cloud on a claim of innocence; the civil plaintiff, a cloud on the defendant’s claim that he has already paid him. And of course vice versa, the defendants casting clouds on plaintiffs and prosecutors. The whole adversary system consists of a casting of clouds (p. 185, Adler; Emphasis added).
In other words, what Scalia and his fellow justices have done is to essentially undermine the entire justice system of the United States and most of the world. That is because if this case were taken as a precedent, then every plaintiff and every defendant could start claiming that his opponent’s claim, if granted, would cause his own claim (of innocence or legitimacy) irreparable harm and should thus be stopped! (‘Your claim that I owe you money would irreparably harm my claim that I don’t.’) And this decision—whose actual consequences have been so catastrophic for both the United States and the world (think only of Bush nominating both Samuel Alito and John Roberts to the Supreme Court; of Bush invading Iraq and throwing the entire world into turmoil; of Bush presiding over the collapse of Wall Street and world financial markets)—was made by and on behalf of those conservatives who have ranted endlessly about their respect for the rule of law and the Constitution’s original intent and the sanctity of legal precedent.
But Adler isn’t through yet. Actually, legal precedent is an equally fundamental issue she goes after; because the decision in Bush v. Gore has a final element of judicial bullshit. That is, in order to limit the institutional damage it seems to know it is causing, the Supremes added this little disclaimer:
“Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”
This sentence drives Adler completely apoplectic. That’s not only because it makes almost no sense, but also because what it apparently says is that the decision in Bush v. Gore is not to be taken as a precedent for other cases. For this one case, the justices assert, precedent is wiped out, null and void. Adler really goes after this one. “If this were so,” she says (i.e. if precedent could simply be eliminated):
…it would undermine, at one stroke, the whole basis of American and Anglo-Saxon law. That each case has precedential value, must have precedential value, is the bedrock of our system of justice. Otherwise, each case can be decided ad hoc, at the caprice of judges—non-elected, federal judges with lifelong tenure. The Constitution and even the Magna Carta would be superseded, the justices would be kings (488).
That pretty much says it all. What the conservative Supreme Court—the court that embodies the conservative objection to “activist judges” like the ones on the Warren Court that passed Roe v. Wade, and Brown v. Board of Education, and all those ‘liberal’ guarantees of due process that allow criminals to flourish—that court, with Scalia’s concurrence in the lead, had just shattered the principle of precedent: the “bedrock of our system of justice.”
No wonder Adler calls it “the most lawless decision in the history of the Court.” No wonder she concludes that the Rehnquist Court, by taking the decision about who would be President of the United States not only away from the voters (who had made their decision which the count was trying to determine) but also away from those whom the Constitution has ordered to make the decision if it remains in doubt—the elected U.S. Congress or even the chief Executive of the state in question—by seizing power in this way, the unelected justices of the Supreme Court had also undermined the sacred (especially to them) separation of powers. The Supreme Court in Bush v. Gore, that is, had usurped the Constitution and taken on the mantle of kings and despots. And the bitter irony of this is contained in Adler’s headnote. It is a quote from Antonin Scalia’s scathing dissent in Morrison v. Olson in 1988, and reads in part: “Without a secure structure of separated powers, our Bill of Rights would be worthless.” As it turned out, Scalia and the Court’s decision did, in fact, within a very short time, make the Bill of Rights worthless. It made a whole lot more worthless as well, when it selected George W. Bush as President by lawlessly, unconstitutionally stopping the manual vote count in Florida.
So next time you hear encomiums about Antonin Scalia’s reverence for the law, for the Constitution, think about whether he more aptly deserves the old raspberry. Or the moniker he might get in Italian: disgraziato.