Wednesday, March 23, 2022

In A Grain Of Sand

Except Scalia, as usual, is not saying what his supporters think he's saying. He's not even saying what Scalia seems to think he's saying.

The emptiness of the argument starts with the canard of the Senate being "the world's greatest deliberative body."  "World's Greatest" is a particularly American presumption.  I used to read a Batman/Superman joint adventures comic called "World's Finest."  Sure.  I think Marvel used to call it's Fantastic Four "The World's Greatest Comic Magazine."  Baseball, of course, has the "World Series," even though nobody is elgible for it outside America except Canada, and the title precedes Canadian baseball.

But I digress.

So Scalia writes:

If, indeed, the "liberties" protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of our's. Not only that, but confirmation hearings for new Justices should deteriorate into question-and-answer sessions in which Senators go through a list of their constituents' most favored and most disfavored alleged constitutional rights, and seek the nominee's commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidently committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward.

I love the idea of a "sort of plebiscite."  Here's how that "sort of plebiscite" is going:

Oh, no, that one is very important to the "plebiscite." Sen. Cotton was asking about criminal sentences, something that is established by statute, not court rulings. But, back to the "plebiscite": It works: I'm sure this is what Justice Scalia had in mind, no? Precisely what "disfavored alleged constitutional right" Sen. Kennedy's constitutents are seeing raised here is an open question. Or maybe it isn't.

As for the people demonstrating so that the Court implements "their" values instead of the Justices', where then stands abortion?  Is there a clamor in the country to undo Casey and Wade, Griswold and Brown, to roll the clock back entire to Lochner? Or is this how the "plebiscite" works?
Is this the "plebiscite" Justice Scalia imagined? He liked that so much he did it again. Or maybe this is that "instructive" "plebiscite":


"You said, 'the obvious increased risk of harm that the COVID-19 pandemic poses to individuals who have been detained in the districts congressional facilities reasonably suggests that each and every — and I think that means everyone — every defendant who is currently in the D.C. Department of Corrections custody and who thus cannot take independent measures to control their own hygiene and distance themselves from others should be released,'" said Tillis. "I voted and supported the FIRST STEP Act. I ... did the Justice Reinvestment Act, early release of nonviolent prisoners. But how can I not read this to say that perhaps they should be released irrespective of the crime for which they have been charged?"

"Senator, if you read two more sentences down, that is precisely what I focus on," said Jackson. "This is a case, United States v. Wiggins, where I was setting up high analysis as to why I would not be releasing Mr. Wiggins in this case. He was arguing essentially what I said in that statement. He was arguing that the circumstances of COVID-19, which at that point, was rampant in the prisons. We had not had a vaccine, there were very difficult circumstances for prisoners who could not be separated from each other in the context of our jail. And as I say at the beginning of that opinion, at that point, COVID was ravaging the jail. The question for courts under the statute that Congress has enacted for compassionate release was whether COVID-19, a pandemic in the jail, was an extraordinary and exceptional circumstance or extraordinary and compelling circumstances that should warrant release."

"What I said in that statement that you read was, it would seem as though something like a deadly pandemic rampant in the jails would justify releasing everyone, but, I go on to say in that very opinion, Congress has indicated that we have to take each case individually. We have to look at the harm to the community that might be caused by the release of individual people. We cannot just release everybody, I said in that opinion."

Quite a plebiscite, indeed.

But if Supreme Court Justices should be political actors:

Not only that, but confirmation hearings for new Justices should deteriorate into question-and-answer sessions in which Senators go through a list of their constituents' most favored and most disfavored alleged constitutional rights, and seek the nominee's commitment to support or oppose them. 

(I don't know how else to interpret that statement), then this is okay, I guess?
Justice Scalia was free to play with vague and glittering generalities in the ivory tower of employment for life with no possibility of being fired or even forced to retire. The rest of us have to deal with the world as it is, not as our political theories imagine it will be.
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