“Get Over It” – Scalia’s death creates a hope that America might yet escape the Kochtopus

Antonin Scalia, the most avid partisan politician in the U.S. Supreme Court’s history – and the justice who took the greatest pains to pretend otherwise – died today, creating a small window of hope. Hope that President Barack Obama, the least avid politician to rise to the White House, will find the mettle needed to nominate and see confirmed a nominee who will help the court escape the black hole of faux “originalism” that Scalia championed. Scalia’s patented originalism was what he cited whenever it gave him the outcome he desired, and could be abandoned without a care whenever it would have meant limiting corporate power or standing up for the rights of real Americans – workers and consumers – rather than the rich and powerful.
 
Appointed by Ronald Reagan, Scalia disgraced the court for decades with his rabid homophobia, his love of capital punishment, and his adamant refusal to even attempt to justify the appointment of the loser of the 2000 presidential election to the White House, a judicial coup without parallel in American history.
 
“Get over it” was Scalia’s only response to questions about inserting the court into a process where it had no business. In a very real sense, the Bush Administration failure that allowed the September 11 attacks and the deaths of hundreds of thousands in the Middle East can be laid at the feet of Scalia, whose partisan fever produced the appointment of George W. Bush, the least-qualified individual to ever hold the presidency.
 
Scalia promoted an arbitrary view of the Constitution that he claimed was “originalism” but was actually just a very un-original method of picking and choosing those parts of the Constitution he liked to get the results he wanted, ignoring them when convenient.
 
There is no basis in the Constitution for the notorious Citizens United decision that led to the complete destruction of any limits on corporate capture of the political process in the United States. Indeed, if anything, the Framers of the Constitution were more suspicious of corporate power than Bernie Sanders. Real citizens today – as opposed to the fictitious corporate citizens who have been endowed with enormous powers by Scalia and his fellow travelers on the court – should recall that the Framers rebelled against Crown corporations more than against England and Parliament. But, thanks in large part to Scalia’s convenient commitment to his supposed “originalism,” his tenure on the bench is marked almost entirely by the rise in power of corporations and the loss of power by real Americans.
 
So boundless was Scalia’s contempt for actual Americans that he even helped invent, out of the whole cloth, the idea that companies and corporations – which are themselves just assets – can have religious beliefs. The Hobby Lobby decision, in which the Court’s “conservative” majority found that the Constitution gave these assets a right to challenge laws on the basis of the company’s “religious beliefs.” Somehow, fictional persons called corporations were now so real that they could have a soul that would be offended if forced to provide female employees with access to insurance coverage that included birth control.
 
Some of the greatest harm done by Scalia’s opinions is in the area of consumer and employment law, where Scalia led the court into an era of slavish devotion to the needs and wants of big business and utter hostility to real Americans facing off against corporations. Scalia and his fellow corporatists on the bench have left almost no stone unturned in their efforts to bar the courthouse door to real Americans by blessing and promoting the use of forced arbitration and rendering class actions an endangered species. In the recent Italian Colors decision, Scalia voted to uphold an arbitration provision with a class-action ban that had the effect of serving to totally nullify federal anti-trust law protections.
 
Naturally, Scalia’s hostility to the rights of sexual minorities and his bitter war against women being allowed to make their own reproductive choices were ascribed to his Catholicism. But Scalia’s love for the death penalty, and his insistence that there was no constitutional problem with a state executing an innocent person, shows that his religious views were not determining his political choices. That is, there was never a need to resort to Scalia’s Catholicism to understand his opinions; to predict Scalia’s positions, you needed only to know if there was a real American pitted against an arm of the military-industrial complex.
 
Scalia was happy to join a majority finding that the First Amendment prevented states from criminalizing flag-burning, because that one case, cited again and again by his supporters, is such a rare exception to the rule that Scalia always sided with power, and especially corporate power. By claiming that he was only doing what the Constitution required, Scalia fooled a huge number of people, but mostly those who were happy that the Constitution always seemed to anticipate and providentially provide precisely what the US Chamber of Commerce, the National Association of Manufacturers, and Koch Industries would have advised, had they been there.