Tag Archives: Scalia

Musing on the passing of Justice Scalia


These two sayings have been bouncing around in my head:  Thumper’s Mother* —  “If you can’t say something nice, don’t say nothing at all;”  Alice Roosevelt Longworth — “If you can’t say something good about someone, come sit right here by me.”

Many people, possibly casting about for something nice to say, praise Scalia’s “fine legal mind” or words to that effect.  But that seems to me like eulogizing someone for having really good looking toes.  Or excellent hair.  Your brain is just another body part.   The fact that it worked quickly, or generated scathing bons mots, or was especially astute at plumbing the intentions of the long-dead committee who stapled together our Constitution, seems secondary or tertiary or hundred-ary to how you used your brain.  (Or your feet.  Or your . . . hair?)   On that score, it is very hard to find anything good to say.  Scalia’s jurisprudence insulted and excluded LGBT and Black Americans, closed the courthouse doors on non-corporate citizens, and sent hundreds of our fellow human beings to their death at the hands of our own states.  And often that fine mind of his refused to stop with a legal analysis of why our LGBT friends and family should not be able to marry or why universities should not be permitted to open their doors a bit wider for people whose great-grandparents WE HELD IN CHAINS.  So often, especially in dissent, he used that fine mind to craft scathing insults for those who disagreed with him.

He was a bully, and he used his powerful brain the way a bully uses his powerful fists.  We would not eulogize a bully for his awesome fists.

There is no universe in which Antonin Scalia could have been considered a good person.  Honestly, I would have trouble eulogizing a liberal judge who decided every case just the way I would, but insulted and demeaned his sibling judges, the litigants before him, and his fellow human beings.

Am I speaking ill of the dead?  Yes, I suppose I am.  But as one Tumblr philosopher noted, “we don’t speak ill of the dead in America unless they were unarmed and black.”  It’s time to make that practice more inclusive.

Update:  Don’t miss Lao Bao’s second comment below — and be thankful that he’s teaching our next generation!


* Oddly, I had remember this as Peter Rabbit’s mother, possibly because my father used Beatrix Potter as the source of a fair amount of conveyed wisdom.


White Affirmative Action

I wrote this op-ed for the Denver Post* after we got a flyer under the door of our law office.  It was published on January 18, 1998.  Given that we have just recently been treated to the clownshow of a white Supreme Court justice announcing that African-American students would be better off in “less-advanced” or “slower track” schools, rather than the University of Texas, I thought it would be fun to re-run this.  The Post called it “Clear the bench (and bar) of privilege.”  I thought of titling it “Gimme a Fucking Break,” but went for the more descriptive “White Affirmative Action.”

We recently received — under the front door of our law firm’s office, sans postage — an interesting missive announcing the organization of a group called VICTIMS OF AFFIRMATIVE ACTION (all caps in the original).  This group (we’ll call them VAA) opposes affirmative action  — from context, the race-based variety — and proposes to shed light on “the appointment of lawyers holding unmerited law degrees to the federal court bench” (underline in the original) and to “deny . . . admission of scholasically unfit ‘minorities’ to law schools.”  The letter concludes by asking for our “assistance, financial or otherwise.”  I choose “otherwise” and offer my invaluable assistance through the formation of what VAA will surely recognize as an important allied organization:  VICTIMS OF PRIVILEGE AND NEPOTISM.

VAA argues that their group is necessary because they have found at least two black judges they claim are unqualified for the federal bench:  one because the judge invented a story about his youth in Mississippi; the other because the judge — at the trial court level — had no previous judicial experience.  (The letter does not mention the law board scores, law school grades, scholastic honors, professional experience or judicial competence of either man.) This got me thinking:  In my ten years of legal practice, I have encountered not only a few incompetent white judges but scores of incompetent white attorneys and I have begun to suspect that these lawyers, too, are the recipients of unmerited law degrees.

To remedy this situation, VAA will have to agree, will require our new group to deny law school admission to scholastically unfit white applicants who rely on such illegitimate factors as where their parents went to law school, who their parents know in the admissions department, or how much money their families have contributed to the school over the years.  Also in our cross-hairs will be such system-abusers as white kids with lower-than-acceptable scores who try to get admitted based on international travel, internships with friends of the family, political work with same, and other life-enhancing experiences open only to those of wealth and connection.  Practicing lawyers who were admitted to law school based on any of these factors must be deemed to hold “unmerited law degrees,” right VAA?

And it doesn’t stop with law school.  We’ll also have to get rid of any white lawyer who got his job because he or his parents knew someone at the firm, because his family attended a church or country club with one of the partners, or because the supervisor from a previous — nepotistically-acquired — job made a recommendation.  Any white judge appointed based on political connections developed through contact with other privileged white lawyers or contributions to the campaigns of privileged white senators cannot be considered qualified to serve.  Finally, of course, any white lawyer who has received the benefit of the doubt based simply on having white skin, good clothes or a standard accent or because a boss or judge of the same ethnic background felt “comfortable” around him — where an equally talented minority lawyer would have been passed over — must step aside.

Well, I’m outta here.  And so are most of the white lawyers and judges I’ve worked with over the years — the good, the bad and the ugly.  Truth is, it is we who benefit from affirmative action and always has been.  Sure merit matters — that’s why we have a bar exam.  But if we think merit was ever all that mattered or that affirmative action was invented in the 1970s to assist minorities and women, we are living in a fantasy world.

We white people have been enjoying the fruits of affirmative action ever since a white skin was all you needed to not be enslaved.  Even after discrimination was declared officially illegal, our prospects in the school-admissions and job markets still benefit overwhelmingly from affirmative action through nepotism, connection, economic privilege and — above all — the largely subconscious sense of most white bosses and faculty that we are like them, that we fit in, that they are comfortable around us, or that we remind them of their kids.  Affirmative action that favors minorities — both the type that requires outreach to non-white populations and, on a larger scale, the type that keeps an eye on the numbers — is necessary and will be until our economy and workforce are sufficiently diverse that the affirmative action working against minorities has faded away.

So whaddya say, VAA?  Are you ready to address the plight of all VICTIMS OF NON-MERIT-BASED SELECTION PROCEDURES?  We’d like your assistance  . . . but skip the “otherwise,” I’ll take financial assistance.

The Post asked me to add a one-sentence biographical description.  I chose confession and tribute:

Amy Farr Robertson is a Denver lawyer who graduated from Yale Law School 28 years after her father, who taught her to appreciate all the ways she has benefited from affirmative action.


*The link will make you pay $2.95 to read the above.

Chief Justice Roberts quietly burns Scalia in the Obamacare decision – The Washington Post

Chief Justice Roberts quietly burns Scalia in the Obamacare decision – The Washington Post.

From the WaPo article:

The main question in the case is about the subsidies used to buy health insurance by people who otherwise can’t afford it. Roberts and Scalia disagree on whether Congress meant for the subsidies to be available through the federally run insurance marketplace set up under the law, as the Obama administration argued, or if Congress wanted to give subsidies only to people who bought insurance through an exchange operated by a state government, as the law’s opponents claimed.

Roberts agreed with the administration. He wrote that it was “implausible” for Congress to set up a system in which people who used the federal marketplace wouldn’t be able to get financial help buying insurance. Scalia disagreed. But, back in 2012, he had written that without subsidies, “the exchanges would not operate as Congress intended.”

And then there was this, from yesterday’s decision affirming the validity of the disparate impact theory of fair housing decision.  The majority opinion by Justice Kennedy explains that the Court had previously held similar language in Title VII and the Age Discrimination in Employment Act (ADEA) to support that theory.  Regarding the ADEA decision, Justice Kennedy wrote:

In a separate opinion, Justice SCALIA found the ADEA’s text ambiguous and thus deferred under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), to an Equal Employment Opportunity Commission regulation interpreting the ADEA to impose disparate-impact liability, see 544 U.S., at 243–247 (opinion concurring in part and concurring in judgment).

Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., No. 13-1371, 2015 WL 2473449, at *8 (U.S. June 25, 2015).  In other words, in 1984, Scalia believed that the language of the ADEA was ambiguous on the question of disparate impact and deferred to the regulations, something he refused to do with respect to the Fair Housing Act yesterday.

And this was just gratuitous, as I’m confident there are approximately 10,000 statutory construction treatises Kennedy could have quoted from:

Against this background understanding in the legal and regulatory system, Congress’ decision in 1988 to amend the FHA while still adhering to the operative language in §§ 804(a) and 805(a) is convincing support for the conclusion that Congress accepted and ratified the unanimous holdings of the Courts of Appeals finding disparate-impact liability. “If a word or phrase has been … given a uniform interpretation by inferior courts …, a later version of that act perpetuating the wording is presumed to carry forward that interpretation.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 322 (2012).

Id. at *11.

Such weird unpredictability from someone who believes the meaning of the constitution was fixed in 1787.

[Updated to add the second Inclusive Communities quote.]

Dog Bites Man*

Justice Scalia Makes Epic Blunder In Supreme Court Opinion.

“This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA’s contention that it could consider costs in setting [National Ambient Air Quality Standards],” Scalia wrote in his dissent, which was joined by Justice Clarence Thomas.

The problem: the EPA’s position in the 2001 case was exactly the opposite.

More or less epic than basing an entire judicial career on the fallacy that he can accurately interpret the intent of the drafters 100% of the time and that, coincidentally, it favors the desired conservative legal outcome 100% of the time?


* No dogs were harmed in the drafting of this post, though a number of them may have been insulted by the unfortunate comparison to Justice Scalia.

Constitutional originalism for the unbuff

Scalia Suggests ‘Hand-Held Rocket Launchers’ Are Protected Under Second Amendment | ThinkProgress.

Can you guess why Scalia suggests hand-held rocket launchers are protected under the Second Amendment?  Because you can “bear” them.  That is, you can, theoretically, lift them onto your shoulder.  So for this reason, “it does not apply to cannons.”  I swear this is not The Onion.  Seriously, folks, if we’re going for originalism, we can’t stop with the bright line between hand-held rocket launchers and cannons.  Clearly your Second Amendment rights, per Scalia, are calibrated to the amount of weight you can bench press.  Clearly this guy’s


constitutional rights are greater than mine, given that I’m not sure I could heft a Saturday Night Special.  But this, too, is flawed as originalism goes because at the time the Second Amendment was drafted, wasn’t the average body size smaller?  Shouldn’t we all be limited to the weapons that the average late 18th Century constitution-drafter could heft?  And if “bear” means only what it meant in 1781, how can freedom of the “press” apply to the internet?