The Hypocritical Stylings of Justice Scalia

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Say what you will about affirmative action, voting rights, same-sex marriage, the Supreme Court as an institution … but as the court wraps up its term with today's final decisions, we pose the question on many people's minds: Is there a bigger hypocrite in all of American jurisprudence than Justice Antonin Scalia?

Scalia's ability to twist his reasoning and his opinions to suit the outcomes he apparently prefers is legend. Not sure where he stands on waterboarding, but his inclination to torture a legal argument until it confesses his desired conclusion has been in full bloom these last two days, with the court's rulings on the Voting Rights Act and the Defense of Marriage Act.

Today, writing in dissent (pdf), Scalia excoriated the majority that ruled DOMA unconstitutional for elevating the court's judgment over the prerogative of the legislative branch. Bloviate away, Nino:

That is jaw-dropping. 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 everywhere "primary" in its role.

Yet just yesterday Scalia signed on to Chief Justice Roberts' majority opinion eviscerating an act of the people's representatives in Congress. Roberts' opinion complained that "Congress did not use the record it compiled" when it reauthorized the Voting Rights Act. Congress' continued reliance on VRA's prior preclearance formula is an act of "irrationality." We are left "with no choice but to declare [VRA] section 4b unconstitutional" because Congress chose not to update the formula.

In the DOMA dissent today, Scalia was eager to point out that the presence of any legitimate justification for a duly enacted statute removes the need for court review. He wrote of DOMA: "There are many perfectly valid — indeed, downright boring — justifying rationales for this legislation. Their existence ought to be the end of this case." Does anyone doubt that there were many perfectly valid rationales for Congress' 2006 reauthorization of the Voting Rights Act? Even the Roberts majority — which Scalia signed onto — recognized that the country has made great strides because of VRA and acknowledged that there can still be a role for VRA as a whole and preclearance in particular.

When it comes to Antonin Scalia's approach to legal reasoning, the ends don't just justify the means; they define them. The result is quiet acquiescence in judicial activism — Congress must be stopped! — in order to rein in voting rights, but indignant horror at the evils of judicial overreach — We must defer to Congress! — when it comes to equal protection.

A version of this post also appears at BruceBarry.net.

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