On television Justices Thomas and Scalia lavishly praise extremist liberal activists. For those who eviscerate the Constitution such praise is unjustified on the merits as well as contradicted by the scathing writings of Thomas and Scalia themselves.
CONTINUED FROM Part I
NOTE: It is the readers choice whether to consult or disregard the links below. The main goal here is to be easily understood while providing proof for those who might think that what follows is fiction. This is written to enable easy reading without looking at the links.
II. Written Opinions vs. OFF-THE-CUFF Television Interviews
Chief Justice Roberts has boasted that his Court is unique because we give a reasoned explanation … We have to spell out in our opinions exactly why were doing what were doing…. Everybody else can look at it sic." On February 5 Justice Sotomayor chimed in claiming that justices completely explain to the public the basis of their decision." Emphasis added.
In truth as Roberts and Sotomayor well know everybody else" and the public" do not look at opinions. Most people do not even know how to find them. Thus few in the public ever see or hear about the considered scathing assessments written by Justices Thomas and Scalia in official published opinions. They hear biased media caricatures intended to ridicule; but they are unaware of the actual assessments.
The Overriding Value Judgment: Noble Ends Justify Dishonest Means
On television Scalia vouches for all justices honesty and fairness while Thomas gives them credit for trying to get it right." If this is insupportable there is no basis for public trust and legitimacy accorded the Supreme Court and it becomes easy to understand Scalias written objection to unelected lawyers policy-judgments-couched-as-law" widely criticized as judicial activism.
Chief Justice Roberts asserts that its really quite wrong to view it as we decide it then we write an opinion to explain what weve decided." This squarely contradicts Chief Justice Hughes and Justice Douglas who asserted that opinion writing is a quest to rationalize ideological predilections.
In non-ideological cases Roberts is probably correct; but surely not in those involving the most critical and bitterly divisive issues e.g.: abortion religion political speech race public safety from crime the economy and economic freedom national security and terrorism education etc.
Scalia rues that constitutional adjudication consists primarily of making value judgments."
Underpinning all others is the conviction that dishonesty is moral when advancing the greater good." Professor Graglia writes (11) that the most liberal-activist Justice" Brennan never let law fact or logic stand in the way of a decision he wanted to reach." Attorney Joel Jacobsen explains that because Brennan was committed to a vision of a nation ruled by judges he viewed any sort of intellectual dishonesty as a justified means to that all-worthy end."
Exactly! The end justifies the means for justices who are so deeply committed to their personal and political values that they have no scruples about misstating distorting and rewriting the Constitution or any other law to the point of emasculation even inventing their own law. In so doing they often craftily turn crystal clear language into confused incoherence euphemized as interpretation."
Dishonesty about Clarity. In addition to asserting that everybody else" can look at the Courts exact reasoned explanations" Chief Justice Roberts declared that everybody can understand" them. Justice Sotomayor added: Every … majority opinion … carefully analyzes the case and why the end result was reached. Everyone fully explains their views." Emphasis added.
To use Justice Scalias expression sheer applesauce." It is fanciful and/or disingenuous to claim that everybody" can understand opinions which are fully explained." Forget everyone"! Even many justices and lower court judges have called high court opinions incoherent and incomprehensible. A confused patchwork" exasperated Justice White. Six years ago Roberts himself decried the Courts dogs breakfast of divided conflicting and ever-changing analyses" and last month he complained of an opinion giving police officers no idea" what was required of them. Scalia protested a messentirely of our own making" caused by replacing a clear" statute with a hodgepodge … having no evident basis even in common sense… If this muddle is welcome … the world is mad." In the last two years Scalia scorched other justices for sowing further confusion" to the point of insanity while Justice Thomas blasted justices refusal to provide clarity to an Establishment Clause jurisprudence in shambles that has confounded the lower courts."
Thus to assert with a straight face that everybody" can understand" the courts full … reasoned explanations" illustrates the low value placed on honesty by many justices including the Chief. Moreover confusion and incoherence are sometimes deliberately used to advance ideological predilections.
Scalia and Thomas on Dishonesty
Understandably in their rarified atmosphere Justices Thomas and Scalia cant use charged words like fraud" liar" or dishonesty" to describe colleagues. But nearly two decades ago Thomas came very close when he harshly faulted his fellow justices for using a conjurers trick" to hide" what they were really doing engaging in pervasive" dissembling" which should not continue. Not for another Term not until the next case not for another day. The disastrous implications … are too … too damaging to the credibility of the Federal Judiciary."
Although Thomas and Scalia usually dont go that far they go far enough. In last years ObamaCare case so momentous that the Court devoted to it six hours of oral argument over three days (unheard of in modern times) they participated in a dissent accusing five justices of being sophists" engaging in verbal wizardry." Days earlier in a case continuing what Scalia long ago called justices campaign against the death penalty" Thomas and Scalia joined a strong dissent accusing fellow justices of making false promises." And years earlier Scalia (joined by Thomas) attacked fellow justices habit of disclaiming the … consequences of their … Constitution-making opinions. Each … abridgment of the peoples right to govern themselves is portrayed as extremely limited…."
When five justices seized from the elected branches significant control over national security matters the orally effusive duo joined a dissent accusing them of perpetrating constitutional bait and switch" while Scalia wrote his own dissent (joined by Thomas Roberts and Alito) again reproving the bare-majority for playing a game of bait-and-switch … upon the Nations Commander in Chief" as well as just kidding" when they gave their word in a prior case.
Rewriting Arrogance Usurpation and Illegitimacy Go Hand in Hand
Thus while Justices Thomas and Scalia largely avoid the ultimate taboo words their thrust is clear. For many justices often a majority credibility is of little concern because the key to their judicial dictatorship and imperialism is fraud: false assurances and broken promises misstating and making up law dissembling sophistry and sharp practices.
If the law means whatever justices want it to mean rather than what it actually says if words have no meaning that can be relied upon (or no meaning at all) if promises mean nothing if facts are ignored or suppressed why then justices can do anything. And they do just that with monumental arrogance in two respects. These supremes" have supreme confidence in their own moral superiority. In turn this inspires them to unabashedly grasp and exercise powers they do not have trampling upon the domain of officials who do have those powers illegitimately usurping without Constitutional authorization the functions of both the states and co-equal branches of the federal government.
In sum judicial dishonesty rewriting usurpation illegitimacy arrogance and value imposition are inextricably intertwined. These motifs appear repeatedly in the writings of Thomas and Scalia.
The Dishonesty of Rewriting. Justices take two oaths to support and apply the actual Constitution and laws of the United States. They do not take an oath to rewrite laws conflicting with their political beliefs write new laws or even apply laws they acknowledge do not exist. Indeed John Marshall cited the oaths in justifying judicial review.
Yet during the televised interview in which Justice Scalia called his colleagues honest" he also complained about their revising" and rewriting" the Constitution despite the fact that their only power is to apply" it. It defies logic to say that justices who do this are anything but dishonest. They are fully aware that they have no authority to rewrite the Constitution as evidenced by their repeated denials (e.g. by Justice Kagan) that they ever do any such thing. Even Justice Brennan claimed merely to be interpreting" the Constitution in declaring that it prohibited capital punishment despite explicit written authorization in four clauses.
Scalia accuses such justices of convincing themselves that words mean whatever they want them to mean. In other words they deny they are rewriting because they claim sincerity in assigning meanings to language that would be unrecognizable to its drafters.
The only way for this to be honest would be if such justices actually believe their own deceptions. But in that case it must be remembered that self-deception is still deception.
Scalia and Thomas have repeatedly accused fabulous" justices of rewriting the law and the Constitution. Judge Bork wrote a book with a title adapted from Justice Scalias wistful lament: While the present Court sits a major undemocratic restructuring of our national institutions and mores is constantly in progress…. Day by day case by case it is busy designing a Constitution for a country I do not recognize." That is scarcely an expression of confidence that the other justices are honestly applying the actual Constitution.
Succinctly Thomas accused justices of not interpreting the Commerce Clause but rewriting it."
Arrogance and Values. Realizing they can get away with dishonest rewriting and outright disregard of the duly ratified Constitution and duly enacted laws there is nothing to prevent arrogant justices from forcing their own idiosyncratic values upon an unwilling populace. Thus Justice Scalia objects to self-righteous" justices acting on their personal view of what would make a more perfect Union " … imposing their own favored social and economic dispositions nationwide … progressively narrowing the sphere of self-government reserved to the people …."
Some justices accept no limit. Scalia (joined by Thomas and Rehnquist) has chastised them for thinking that no issue however trivial is beyond their sense of superiority: Unelected federal judges have been … illegitimately … usurping the lawmaking power" of elected officials for decades. This Court seems incapable of admitting that some mattersany mattersare none of its business." Scalia (joined by Thomas) sarcastically criticized justices who confronted … an awesome responsibility … the solemn duty … to decide What Is Golf. I am sure that the Framers of the Constitution … fully expected that … this august Court would some day have to wrestle with that age-old jurisprudential question for which their years of study in the law have so well prepared them."
Of course what agonizes critics of judicial abuse is that justices have not confined themselves to the trivial. All too often in service of their personal moral values they have shanghaied the power to decide the gravest and most contentious issues.
Consider the examples to follow in Part III and Part IV.
CONTINUED IN Part III
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Lester Jackson Ph.D. a former college political science teacher views mainstream media truth suppression as essential to harmful judicial activism. His recent articles are collected here.
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Copyright ©: 2013 Lester Jackson Ph.D.