Arch conservative Justice Scalia becomes poster boy for liberal judicial activism

It’s a new day in America.

Where conservatives on the nation’s top court once stood for strict-construction of the U.S. Constitution and moderation when sticking their noses into the business of the lower courts, that approach is now just so ‘yesterday’.

There’s a new wind blowing through the hallowed and rarified halls of the Supreme Court and its message is clear -

Strict construction and judicial moderation is for wusses.

Make no mistake – Justices Roberts, Alito, Scalia, Thomas and Kennedy are no wusses.  These are real men – men willing to part with legal precedent to protect the sanctity of traditional marriage  - no matter what it takes.

I wonder where I can buy an Antonin Scalia action figure?

As many of you know, there is a trial currently underway in San Francisco testing the legality of the California Constitutional Amendment banning same sex marriage. This is a trial that has brought together, on the same side, attorneys Ted Olson – widely considered the top GOP/conservative legal mind and mouthpiece in the nation – and David Boies, the equivalent force in Democratic and liberal circles. If these names are familiar to you, it may be because they faced off against one another back in 2000 when Bush v. Gore determined who would be the President of the United States. Olson represented Bush while Boies represented the losing litigant, Al Gore.

These two brilliant attorneys, from opposite ends of the ideological spectrum, joined together because each understands the obvious – denying the right of marriage to gay couples is a clear and compelling denial of civil rights. They also got involved because they anticipate taking the issue up the line for ultimate resolution by the Supreme Court.

It appears they might as well save their breath and go home to their respective law practices. The Court has already pretty much told us where they stand.

When the trial began last week,  Judge Vaughn Walker – a libertarian leaning judge appointed to the Federal bench by George H.W. Bush – ruled that the trial could be broadcast for public viewing via the Internet. This was a significant decision as a federal trial has never before been broadcast for public viewing.

In explaining his rational, Judge Walker said-

This is a case which merits a very serious consideration for widespread distribution. This case deals with important issues that people think about, talk about, debate about, and consider. So I think it’s worth trying in this case.
Via Seattle Gay News

But the anti-gay marriage forces didn’t like this. They allegedly feared that those testifying on their side would be open to harassment and endangerment should people get a look at their faces.  Their concern is two-fold – first, if these people are intimidated, they will not give full and open testimony in court. Secondly, somebody who disagrees with these witnesses choices and believes might ostracize and harass them or cause them bodily injury – you know, like what they’ve been doing to gays in society forever.

Let’s stop for a moment and more fully savor the irony.

These noble Americans, deeply committed to protecting the sanctity of so crucial an issue as traditional marriage, are only willing to take their stand against the evils of single sex marriage if they are don’t have to expose themselves in the process.

Imagine, if you will, the patriots who founded this country rising to the floor of the Continental Congress to deliver rousing speeches pressing revolution against the British – an act guaranteed to cost them their heads if identified and caught – and then asking the reporters covering the historic event to leave their names out of the story because somebody could get hurt.

It gets better. After the lawyers representing the anti-gay marriage forces complained, Judge Walker agreed that the faces of witnesses who didn’t want to be exposed would be blacked out before the tape of their testimony was released to YouTube for distribution. This was possible because the trial was scheduled to be broadcast on a one-day delay.

Still not good enough. The matter was instantly taken to the Supreme Court who, to everyone’s utter amazement, agreed to hear the matter on an emergency basis. Why was everyone so shocked that the court would hear this?

It was unusual that the Supreme Court even decided to hear this case. The high court takes very few cases. It generally decides issues about which the state or federal courts are in conflict or cases that raise important questions of federal law. Yet relying on the Supreme Court’s “supervisory power” over the lower courts, the five conservative justices – Roberts, Scalia, Thomas, Alito and Kennedy – joined in an unsigned 17-page decision and chided Chief Judge Vaughn Walker for seeking to broadcast the trial without a sufficient notice period for public comment.
Via Truthout

So, you may ask, since the Supreme Court has this supervisory power over the lower courts, what’s the big deal?

The big deal – as pointed out by Justice Breyer in the 5-4 dissenting opinion- is that never, in the history of the United States of America, has the Court intervened in the procedural aspects of local court administration. What a remarkable coincidence it is that the five conservative members of the Court would choose this particular case to overturn this precedent – a precedent in existence since the very founding of the Supreme Court.

And, again, it gets better….much, much better.

Prior to this case, Justice Scalia did not even believe that there was a legal basis for the Supreme Court to interfere with the procedural operation of the lower courts. Here’s what Scalia wrote in an earlier case –

I agree that every United States court has an inherent supervisory authority over the proceedings conducted before it, which assuredly includes the power to decline to proceed on the basis of an indictment obtained in violation of the law. I also agree that we have authority to review lower courts’ exercise of this supervisory authority, insofar as it affects the judgments brought before us, though I do not see the basis for any direct authority to supervise lower courts.
Bank of Nova Scotia v. United States, 487 U. S. 250, 264 (1988)

As Justice Breyer points out, the majority’s decision in the present matter is a direct exercise of authority to supervise the actions of a lower court – not a review of the lower court’s exercise of such authority as to how it impacted on the case itself.

The bottom line here is that Scalia was so intent on accomplishing his desired social and political result, he actually overruled himself!

Now that’s not something you get to see everyday.

So, why does this matter? It’s not like the Court has ruled on the underlying question of whether laws banning gay marriage are constitutional.

It matters because when we see decisions like this fall along strictly ideological lines, it tells us that the Justices aren’t concerning themselves with law- they are sticking their noses into social and political issues.

This should strike a resounding chord with all the conservatives out there who constantly scream bloody murder about activist judges venturing into political and social decisions – a place, conservatives hasten to remind us, is somewhere no judge is permitted to go.

Yet, somehow, I have heard nary a word of criticism from conservatives faced with a Justice Scalia and his conservative brothers on the Court  who have reached this precedent breaking decision so as to achieve a desired social and political result.

Can you imagine what these conservatives would be saying had a liberal member of the court reversed himself or herself in this way?

Where’s the outrage? Where is Bill Bennett? Where is Pat Buchanan? Where are the defenders of the ‘American Way’?

Is it unreasonable to expect that if one is going to cry out against the evils of judicial activism, one should be prepared to scream at the top of their lungs even when their own political allies cross the line? Or is it simply that when it comes to gay marriage, the ends justify the means?

There’s no getting around the fact that the actions of Justices Roberts, Scalia, Thomas, Kennedy and Alito represent judicial activism at its very worst and most dangerous. Not only have they ignored their obligation to follow legal precedent, they have taken a dramatic step towards denying transparency and openness in our judicial system.

If conservatives are going to stay mum on this, they need to stop whining about Obama’s failure to deliver the transparency and openness he promised. Obama will be gone in seven years or sooner. The Supreme Court, in what has to be the grand slam of judicial activism,has put a lid on transparency in our system in way that could  last for centuries to come.

To my conservative friends out there, its time to put up or shut up. Your friends on the nation’s highest court have sold out the fundamental principals which you claim to hold so dear. And your silence is as painful as it is deafening.