US Supreme Court Justice Scalia’s Valentine’s Gift

Is it a gift to New Zealand ?

If we like it or not the US Supreme Court matters to us in New Zealand as much as the rest of the “Western” world. We just signed the Trans Pacific Partnership Agreement (TPPA). If it gets ratified – which is doubtful in the US – we will get even more immeshed in the US legal, commercial and political system. We ignore it at our peril. Think of patents, copyright, civil liberties, spying on our own citizens, climate change, democracy, you name it. Think of the appointment of George W Bush as president over Al Gore and the resulting disastrous wars in the Middle East. All are greatly influenced or direct results of decisions of the US Supreme Court.

Scalia the Man

US Supreme Court Justice Antonin Scalia gave the world a parting gift or rather the gift of parting. He suddenly died on Valentine’s day (New Zealand time).

By all accounts he was an affable witty man with a big loving family and many friends who will be deeply mourning his passing. The last thing anyone would want to do is to further hurt the feelings of all those who suffered a great personal loss.

Scalia’s Supreme Court

The justices of the U.S. Supreme Court gather for a group portrait in the East Conference Room at the Supreme Court Building in Washington, October 8, 2010. Seated from left to right in front row are: Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, and Chief Justice John G. Roberts. Standing from left to right are: Associate Justice Sonia Sotomayor and Associate Justice Stephen Breyer. REUTERS/Larry Downing (UNITED STATES - Tags: POLITICS CRIME LAW) - RTXT71C

US Supreme Court Justice Antonin Scalia

However, from afar I can only deal with Scalia the Justice of the US Supreme Court.
He was supposedly the “intellectual” leader of the conservative 5:4 majority. He was the most radical right wing conservative Justice of the court who shaped the judicial landscape of a generation. By opposing any gun control he gave Americans the guns to kill each other in mind blowing numbers. As a staunch supporter of the death penalty he gave America the judicial killings, which affect mostly black Americans and other minorities and inevitably a certain percentage (some estimates say 5%) of innocent people on death row. Life was not sacred to him other than that of a foetus in the womb of any woman including rape and incest victims. He (in Citizens United) gave American corporations human rights specifically the right of free speech. This allows them to spend unlimited amounts of their shareholders’ money – if they like it or not – on political causes, funding political parties and buying political and judicial candidates. He thereby undermined the very democracy America pretends to be so proud of, which should be based on humans being citizens and voters and on the principle of “one man one vote”. Corporations after all don’t vote.
And he gave the world US President George W. Bush – not elected democratically but appointed by the Supreme Court.

Scalia was praised by his supporters for his great constitutional legal mind. If he was indeed the greatest legal mind on the conservative side of the bench what does that say about the rest of the justices ? He in support of the right of free speech for corporations for instance resorted to the distinction between free speaker and free speech in the constitution. You really have to wonder that this sort of meaningless sophistry is deployed to undermine the American democracy.
Scalia was generally known as interpreting the constitution literally and trying to base it on the thinking of the founding fathers almost 250 years ago. As a legal scholar I regard that as plainly ridiculous.


Republican Supreme Court

The US Republican Party has owned the Supreme Court since the demented days of Ronald Reagan. And they are saying as much. President Bush senior called the appointment of Justice Scalia the greatest legacy Reagan left America. Republican presidential hopeful and Texas Senator Ted Cruz called for the blocking of any Obama nominee for the Supreme Court saying that the Republicans in the Senate should not allow Obama to take the Supreme Court away from them. And he is right. The stakes could not be higher.

It is worth remembering the US constitutional situation in the case of a vacancy on the Supreme Court. The president alone has the right and duty to nominate a replacement who then needs to be confirmed by the US Senate. Neither can just sit on their hands and do nothing. The present Supreme Court is now balanced with four conservative and four liberal leaning justices. There is no casting vote but deadlock if a new justice is not appointed.

Obama has already appointed two Supreme Court Justices without any fuzz as he was only replacing liberal leaning justices and therefore not changing the power balance of the court. This time it is different and the Republicans know it. They and their corporate backers will do everything in their power by kook or by crook to prevent loosing their grip on the court, which has in the past enabled their neoliberal agenda in many crucial 5:4 decisions. They already openly announced that they will not play by the rules of the constitution.

Crucial Timing

Scalia’s death is a gift in two ways.

During a democratic presidency it presents a chance to change the balance of power on the court from conservative, neoliberal pro-corporation and anti abortion to liberal, pro-citizens and women’s rights.

During an election year it presents a chance to draw the attention of the American people and voters to the corruption of the whole system of government in the US. They will plainly see over the campaign period that the Supreme Court is not about the rule of law but corporate interests. And these corporate interests, which are already pouring billions of dollars into the 2016 US presidential and congressional election campaigns have now all the more reason to pull out all the stops. After all the replacement of a Supreme Court  Justice with a lifetime tenure is more important than even the presidency. We can expect it to get very ugly indeed. We already saw the beginning of it at the last Republican debate when the corpse was not even cold.

On the other hand Scalia’s timing presents a unique opportunity for the American voter to actually directly influence the future direction of their Supreme Court.
Will they accept their Valentine’s gift and make the best out of it ?
Will the corporations and their billionaire owners win, again ?
Or will the people, the 99.9%, prevail ?
We’ll know in November.

by  Dr. Hans B. Grueber


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