Columns » Ernest Dumas

The changeable absolutist



Antonin Scalia, the longest-serving justice of the U.S. Supreme Court, is arguably the most important person in the land this approaching spring, since the president and Congress, disabled by gridlock, are out of the running. You can make a case that he is eclipsed by Anthony Kennedy or John Roberts, the "swing" justices who have kicked over their Republican traces on rare occasions and assented to the constitutionality of some Democratic undertaking.

But Scalia is the undisputed leader of the court's antimodernist bloc, which everyone is watching for signs that it will succeed in the biggest enterprises of the season: killing the national health-reform law on its second attempt and stopping people with similar sexual attributes from enjoying the benefits of marriage and family.

As I write, the justices are hearing arguments on whether a quirky phrase in the massive Patient Protection and Affordable Care Act of 2010, discovered by a Columbia, S.C., employment lawyer nine months after its passage, annihilates the whole thing, which here in Arkansas could mean ending medical coverage for as many as 300,000 people. By early summer the justices will also decide the marriage question, which federal and state trial judges in Arkansas have already decided affirmatively and which has sent the elected judges of the Arkansas Supreme Court into a catatonic state, fearful of making a decision that could defeat them in their next elections.

So when Scalia goes to Fort Smith to give a lecture for the town's new U.S. marshals museum, you hustle over to hear him. Part of the lure is Scalia's beguiling personality. Given his dour and often angry pronouncements from the bench, you always expect a sullen but natty John C. Calhoun but get a merry fellow who delivers Calhoun certitudes in a way that makes him almost lovable. When he tells you jovially that you are just flat wrong — say, in wanting to amend the Constitution in some way, as a couple of questioners did — you want to clap him on the back. The other motive is to detect a hint if he will live up to expectations on the Obamacare and marriage cases.

He will and he might.

To loud applause, Justice Scalia expounded on his famous originalist doctrine for interpreting the Constitution: When you are called upon to determine the meaning of lofty constitutional terms — freedom, liberty, rights, due process of law, equal protection, full faith and credit, domestic tranquility, the general welfare, cruel and unusual punishment, and so on — you try to establish the mindsets of the 55 white land-owning men who wrote the document or the several hundred men in the 12 states who ratified it and the Bill of Rights in 1787-91.

Succeeding generations and their judges, Scalia said, have had no right to substitute their notions about humanity and freedom for those that the 55 men in Philadelphia must have held. Their ideas about which people had rights that should be protected by the government are paramount forever. The question of what constitutes "cruel and unusual punishment" is settled, Scalia said, because in 1787 the correct punishment for felons was to kill them all.

Since it is easy to determine who the original 55 authors thought enjoyed human rights (free black men in 1787 in their minds were only three-fifths of a human being for government purposes, slaves nothing and females citizens of the republic in name only), the question of protected rights for gays and lesbians is settled in the justice's mind. He was sure of it when he voted against them in 1996 in Romer v. Evans, in 2003 in Lawrence v. Texas and again in last year's cases where he voted against the majority that all but declared matrimony to be a universal right that the government could not deny people of the same sex.

Without addressing the issue directly, Scalia left no doubt at Fort Smith that he would vote again to deny equality to same-sex couples because the Bill of Rights authors didn't expect it and the states have a long history of actually punishing same-sex relationships. Justice Kennedy abandoned the Scalia bloc on all the sexuality cases and is expected to swing the court the other way again.

Obamacare is a harder question. If Scalia follows the "original intent" of the authors in interpreting statutory as well as constitutional law he will hold in favor of the health law, that it offers tax credits for health insurance to every citizen in America whose income qualifies them, regardless of whether their state operates its own insurance exchange, or its people buy plans through the federal exchange or, like Arkansas, through a joint state-federal exchange. All 280 members of Congress who wrote and voted for the law, the industries and professions that it affected, the administration that supported it, and the press that reported on it always explained that the tax credits could be taken by people in every state.

All five members of the conservative bloc have held over and over that statutory language must be understood in context and that a single phrase that conflicts with the overall aim of a law cannot be used to undermine its goals, which in Obamacare's case was to make health insurance available and affordable to everyone.

Only six weeks ago, Scalia uttered that principle from the bench in arguments over interpreting the Fair Housing Act.

"When we look at a provision of law," he said, "we look at the entire provision of law. ... We try to make sense of the law as a whole."

But of what value is consistency? When he wrote the minority opinion in 2012 that Obamacare was unconstitutional because the commerce clause prohibited the federal government from regulating things like health care, Scalia ignored his prior opinions approving federal interference with matters that states had handled exclusively. Most notable for us here in the Bear State was his holding in 1988 and 1989 that the commerce clause allowed President Reagan's energy regulators to require Arkansans to pay $4.5 billion to subsidize electric rates in Mississippi, Louisiana and Texas, although federal law made retail ratemaking the exclusive job of the states.

Wait, that was a Republican administration and those were Republican states. Never mind.

Add a comment