Sunday, February 28, 2016

Modern "Conservatism" at its Core: the Sociopathology of Antonin Scalia

Scalia's passing has inspired praise and condemnation, almost in equal measure. But let's not forget that his intellectuality was practiced well removed from the people whose lives he affected.

Justice Antonin Scalia hated science, which precluded his religious
fundamentalism, but loved history, which was easier to manipulate.

Full disclosure: I never liked one thing about Antonin Scalia, from the moment he was nominated to the day he died. I found him a nasty, uncaring, vicious bully, whose decisions painted a picture of a man who supported privilege and the power privilege affords. Everything else was meaningless to him, in spite of his ability to denigrate it with a razor-sharp wit. That wit was often a real dagger that damaged real lives. And frankly, he could give a shit. But he could give a shit with style!

I am, of course, not alone in this opinion. Most progressives see in Scalia their own version of the anti-Christ. Ironically, his fervent Catholicism gave him cover for his endless stream of misogyny, cruelty, and contempt for the underdog or the abandoned. Let them die on the ice floes of life was his unwavering position.

It's helpful to remember that he famously said that there was nothing unconstitutional about executing an innocent man. I get what you mean, Nino, you are absolutely correct in your reasoning even as it paints you as a horrid human being. Judges like you shouldn't be allowed near a bench.

OK. I'm not alone in these feelings. Bruce Hay, who once clerked for Scalia, has this to say in Salon:
His own weapon was the poison-barbed word, and the battleground was what he once labeled the Kulturkampf, the culture war. The enemy took many forms. Women’s rights. Racial justice. Economic equality. Environmental protection. The “homosexual agenda,” as he called it. Intellectuals and universities. The questioning of authority and privilege. Ambiguity. Foreignness. Social change. Climate research. The modern world, in all its beauty and complexity and fragility.
Most of all, the enemy was to be found in judges who believe decency and compassion are central to their jobs, not weaknesses to be extinguished. Who refuse to dehumanize people and treat them as pawns in some Manichean struggle of good versus evil, us versus them. Who decline to make their intelligence and verbal gifts into instruments of cruelty and persecution and infinite scorn.
David Dayen in The Intercept shows another side of the man:
Supreme Court Justice Antonin Scalia was worth billions of dollars to corporate America, if a Dow Chemical settlement made public Friday is any indication.
Dow was in the midst of appealing a $1.06 billion class-action antitrust ruling, after a jury found that it had conspired with other chemical companies to fix prices for urethane, a material used in furniture and appliances.
But because of Scalia’s death and the sudden unlikelihood of finding five votes on the Supreme Court to overturn the case, Dow decided to settle for $835 million, the bulk of the original award.
“Growing political uncertainties due to recent events with the Supreme Court and increased likelihood for unfavorable outcomes for business involved in class-action suits have changed Dow’s risk assessment of the situation,” the company told Bloomberg News.
Imagine that. The Dow news release to Bloomberg essentially said, "Scalia died, so now we're fucked. Might as well settle." That's some pretty rare candor.

This article in the Wall St. Journal backs up Dayen's view in some detail:
The Supreme Court is considering several appeals on the scope of class-action litigation in its current 2015-16 term. The court docket otherwise isn’t particularly business-heavy.
Deepak Gupta, a plaintiffs’ attorney who specializes in Supreme Court and appellate litigation, said he didn’t expect Dow to be the only company with pending class-action litigation to reverse course, predicting a ripple effect on cases that span consumer complaints to securities lawsuits.
“You can think of this as the canary in the coal mine,” Mr. Gupta, said, “the first casualty on the business side.”
Justice Scalia was a crucial fifth vote on the court, and he wrote the controlling opinions in previous cases that tightened the standards for certifying a class, allowing such cases to proceed.
There it is, spelled out in the paper of record for Wall St. Without Scalia, class action suits won't be curtailed. Class action suits were a major way to get a case with enough heft to achieve some extent of justice for victims of corporate abuse. I can't go up against VW, for example, but 320,000 mes can. (I'm actually one of the victims of VW's pollution scandal, one of 450,000 in the U.S., 320,000 of which share my model type.)

The Business Court of John Roberts is fraying around the edges. No one should applaud another's death. After all, Anotonin Scalia was no Pol Pot. Nonetheless, for many, Scalia's uncompromisingly brutal jurisprudence will not be missed.

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