Supreme Court Justice Antonin Scalia has a brilliant career before him should he ever decide to leave the bench.
He could make millions as Nino the Mindreader, appearing on stage around the country demonstrating his ability to delve below the surface and understand what people really mean.
He gave us a hint of his telepathic talents last week with his bizarre argument on “racial entitlements,” in which he seemed to suggest that Congress voted to extend Section 5 of the Voting Rights Act in 2006 not because it thought it was necessary but because once “a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”
In other words, psychic Scalia knows that Congress voted for the extension because it was politically correct, not because the provisions of Section 5 are needed to protect minority voting rights.
During oral arguments in the case of Shelby County v. Holder, Nino the Mindreader opined, “I don’t think there is anything to be gained by any senator to vote against continuation of the this act. And I am fairly confident it will be reenacted in perpetuity unless -- unless a court can say it does not comport with the Constitution.”
Note that the extension passed the Senate unanimously and the House overwhelmingly, but thank goodness Nino the Mindreader is on the bench, helping Congress to do the right thing, that which it really wants to do but politically can’t.
Scalia’s mind-reading in the Voting Rights case seems to comport with his oft-cited judicial theory of originalism, holding that the Constitution should be interpreted according to the original intent of the framers and ratifiers. He revealed his understanding of originalism in an exchange in 2010 with fellow conservative Justice Samuel Alito over a California law restricting minors from buying violent video games.
“What Justice Scalia wants to know is what James Madison thought about video games,” Alito quipped. “No, I want to know what James Madison thought about violence,” Scalia responded.
Justice Scalia’s commitment to originalism might be defensible if he were consistent in his interpretation of the Constitution. But he’s not. Take the infamous decision in the Citizens United case, in which the Supreme Court’s conservative majority ruled, in the words of legal scholar Ronald Dworkin, “on their own initiative, at the request of no party to the suit,” that corporations and unions have the right to engage in unregulated campaign spending. In other words, Scalia and his colleagues determined a congressional statute, in this case the McCain-Feingold law, unconstitutional even though its constitutionality was not at issue.
It’s hard to imagine that anyone in 1789 wanted to give the courts such sweeping power.
Not only does the Citizens United decision contradict originalism, it also is an example of judicial activism.
Conservatives rail against liberal activist judges; it turns out their objection is not to activist judges but to liberal activist judges. Conservatives don’t seem to have a problem with conservative activist judges.
Another example of conservative judicial overreach is Bush v. Gore, the decision in which the high court halted Florida’s ballot recount, enabling George W. Bush to become president. The Constitution grants states control of the electoral process, but Scalia has no regrets about the ruling, which he says, “Comes up all the time, and my usual response is ‘get over it.’”
There is no historical evidence suggesting the framers intended to give the Court power to intervene in a sovereign state’s oversight of elections.
Scalia’s judicial activism often descends into outright political agitating, as he did in his fiery dissent to the Supreme Court’s ruling on Arizona’s draconian immigration laws. In his statement, Scalia criticized President Obama’s decision to allow some immigrants who came to the United States as children without documentation to stay. That decision was not part of the Arizona case, but that didn’t stop Scalia from offering an opinion.
As an intellectually confused jurist, positing originalism but pursuing judicial activism, and as a political posturer from the bench, it’s time for Scalia to step down.
He need not worry, as he can turn his ability to read the minds of Congress and the framers of the Constitution into a lucrative second career.
Nino the Mindreader - I’d pay to see that act.