Another Scalia? Seriously?

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In selecting a justice for the Supreme Court, President Trump had a golden opportunity. He could have taken a big step toward his stated goal of being a president for all the people. He could have nominated someone like Merrick Garland, a moderate and centrist judge praised by leaders of both parties and acceptable to the great majority of Americans. That’s what Barack Obama did, but we all know what happened. Republicans refused to give the candidate a hearing, holding the position open for the next–hopefully Republican–president to fill. And it worked. But wouldn’t it have been great if Trump had done the right thing for the country and nominated a moderate anyway?

Instead, we are getting Judge Neil Gorsuch, one of the most far-right conservatives available. Republicans will probably get him confirmed, one way or another, but with almost no bipartisan support.

Trump selected exactly the kind of justice he said he wanted, someone as similar as possible to the man he would replace, Justice Antonin Scalia. Judge Gorsuch has made clear that he regards Scalia as his primary role model. Court watchers who have analyzed Judge Gorsuch’s opinions rate him at least as conservative as Scalia, and probably a little more so.

A good way to anticipate Judge Gorsuch’s role on the Court is to recall some of Scalia’s own positions:

Scalia supported racial and gender equality in the abstract, but put severe limits on the government’s efforts to achieve it. He was an ardent foe of deliberately increasing minority or female employment or educational admissions, even to correct an existing pattern of discrimination or to achieve the educational purpose of creating a diversified student body.

Scalia voted to eliminate the requirement of the Voting Rights Act that states with a history of discrimination get changes in their voting laws approved by the Justice Department. He did not see enough racism in today’s America to justify such a “burden”. States like North Carolina and Texas immediately rushed to pass new voting restrictions that would impact negatively on black voters.

He supported the right of states to criminalize homosexual behavior and dissented when the court put a stop to that criminalization. He supported state laws against same-sex marriage, as well as the federal law that refused to recognize such marriages even in states where they were legal.

He favored overturning Roe vs. Wade and allowing states to ban abortions at all stages of pregnancy.

Scalia wanted to strike down the Affordable Care Act, seeing no constitutional basis for its individual mandate to obtain health insurance. He did not find that basis in the federal government’s power to impose tax penalties (as Chief Justice Roberts did), or in its power to regulate interstate commerce. On the other hand, he supported using the interstate commerce clause as a justification to ban medical marijuana even in states that had legalized it.

In criminal law, he voted to overturn the Miranda decision, which requires authorities to inform arrested suspects of their legal rights. He dissented when the Court outlawed the death penalty for minors or the mentally retarded, something that most democratic countries had done years ago.

Scalia viewed most campaign finance reform as an infringement on the free speech rights of donors. He supported the right of corporations as well as individuals to spend unlimited amounts of money to promote political causes. Like his conservative colleagues, he acknowledged no danger that money would corrupt politics as long as it was spent by PACs and super PACs rather than given directly to political campaigns.

He also upheld as constitutionally protected free speech the right of businesses to market violent video games to minors without parental approval. On the other hand, he was more willing to restrict speech for students, prisoners, public employees and human rights activists. Constitutional lawyers Laurence Tribe and Joshua Matz (Uncertain Justice) see a pattern here, in that Scalia’s free-speech positions always “advantaged the powerful over the comparatively powerless.”

Scalia was one of the most pro-business justices since the 1940s. He could be relied upon to favor the interests of businesses over those of consumers or workers. One way to do so was to block class action suits in cases where alleged business misconduct affected many people. According to Tribe and Matz, “The Court has reflected that sentiment by issuing a string of opinions—all decided five-to-four and all authored by Scalia—that have the obvious purpose of destroying most consumer and employment class actions.”

Trump’s preference for judges as conservative as Scalia is further evidence that he is a very strange kind of populist. Scalia wanted to protect people against what he saw as overly regulatory federal government. But for a man of justice, he was remarkably uninterested in protecting people against injustices perpetuated by the rich and powerful. Maybe he was a man of his time, but as time marches on, the positions he held are becoming increasingly out of the American mainstream.

We keep hearing that this was a “change election.” I doubt that putting another Scalia on the Supreme Court is the change that most people want.

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