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.
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
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.”
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:
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).
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.
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 the 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:
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.”
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):
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, musthave 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).
each case has precedential value, musthave 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.”
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.
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.
Constitution, think about whether he more aptly deserves the old raspberry. Or the moniker he might
get in Italian: disgraziato.
Lawrence DiStasi