Scalia, the Constitution, and Me

In Every Case but One  -- My Own -- Scalia Sided with Top-Down Tyrannical Power

For his entire tenure on the Supreme Court, Justice Antonin Scalia upheld top-down power of corporations and governments over ordinary and extraordinary human beings.

 BUT – in a case where I was one of nine “ordinary and extraordinary human beings” suing the FBI for its tyrannical and illegal “COINTELPRO” attacks on our First Amendment right of free assembly, then Judge Scalia ruled in our favor, against the FBI. 

He was still a judge on the Federal Circuit Court of  Appeals.  He was one of three judges who upheld a District Court decision that found the FBI liable for damages because of its use of outright theft, forgery, libel, and other illegal acts to obstruct our anti-war and anti-racist political organizing.

In the light of the Constitution, his vote was obvious. In the light of all the rest of his record, I did not understand his vote then, nor have I ever since.

As result of the decision, I was able to buy my first computer for doing Shalom Center work and to offer David Waskow and Shoshana Waskow a year-long stipend to do their first political work, support that I called the “J Edgar Hoover Memorial Fellowships.” (They both accepted: David to work for tenants’ rights in New England, Shoshana to work in a shelter for battered  women.)

If Justice Scalia stands this morning before the Heavenly Court, that case may be his one feather on the scale of justice to weigh whether he acted – as all our religious traditions demand -- on behalf of the oppressed.

For all the rest --  He upheld the power of the ultra-rich to flood elections with their money; the power of racist state governments to undermine the voting rights of Blacks, Hispanics, the poor, the young, and the old; the power of homophobic state governments to prevent same-sex marriages; the power of the US Government to imprison people in Guantanamo for years with no trial and no right to habeas corpus; the power of a corporation to invoke its own “religious freedom” (can a corporation pray? or take Communion?) to thwart the actual religious freedom of its flesh-and-blood women workers to freely choose insurance coverage for their use of contraceptives; and most recently, just days ago, the power of King Coal to continue committing arson against our Mother Earth and her vulnerable human communities.

Partly because of Judge Scalia's unexpected vote, our COINTELPRO case became a chapter in a book on the Bill of Rights by Caroline Kennedy and  Ellen Alderman, In Our Defense. For my own story of the case and its effect on me, see <

Last night and this morning, after Judge Scalia’s death, a true Constitutional Conservative would have said:

 “The Constitution defines the President’s term in office as four years, not three. So of course President Obama should nominate a candidate for the Supreme Court. And as also provided in the Constitution, of course the whole Senate should decide whether to confirm that nominee.”

It is shameful that some leaders of the Senate and some candidates for President who claim to be “conservatives” took exactly the opposite position. Shameful, but not surprising.

What now? Since the filibuster still applies to Senate debates on nominations to the Supreme Court, we should note that it only takes 41 Senators to prevent confirmation. Unless after the elections this fall there is a majority of Senators ready to change the rules, that will apply then as well as now  -- and to any nominee of the next President, of whatever party and belief. 

We might be in for a long period of 4-4 deadlocks on the Supreme Court. If so, that will mean decisions by the various Courts of Appeals will be upheld by default. (In the recent King Coal case, that would have dethroned the murderous monarch.)

Or to prevent a nightmare of conflicting Appeals decisions enshrining different law in different regions of the US, perhaps the wavery Justice – Kennedy—will cross over to make up a mildly liberal majority, more attuned to the rights of the people and the healing of Mother Earth.

In any case, I hope that President Obama will nominate precisely a strong defender of the rights of the people and the life of Mother Earth, rather than trying to compromise by naming someone acceptable to the Tea Party extremists. Better a 4-4 deadlock than that.

Perhaps a wise, creative, and unconventional choice might be former Govrnoor & former EPA head Christie Todd Whitman Though a Republican, she is maverick enough to strongly support campaign finance reform and to take the climate crisis seriously. Perhaps she would attract support from enough of Republican Senators to tip the balance.

Probably not,  but then she might move enough of the voting public to matter in the next election, when the Supreme  Court should be a major issue..