At Dorf on Law, Eric Segall: Supreme Irony: GOP Talking Points and Scalia’s True Legacy. From the introduction:
It is fair for Republicans to promise to appoint Justices who will vote for policies that further their interests. It is absurd, however, for Republicans to suggest, as they always do, that what that means is that their judges, and only their judges, will respect the text and history of the Constitution. Since both Donald Trump and the official GOP platform pay specific homage to Justice Scalia as the kind of Justice they would name, examining the late Justice’s actual voting record instead of fairy tales about his alleged text-and-history approach shows the falsity of the GOP talking points about our highest Court.
Justice Scalia did consistently vote against abortion and gay rights, often ranting that the Constitution is “dead, dead, dead” and arguing that judges shouldn’t make up rights that are not listed in the text of the Constitution. In a famous dissent in an important abortion case, Scalia said that “value judgments should be voted on [by the people] not dictated” by unelected judges. These cases, however, are aberrations. because Justice Scalia frequently made up rights and rules that aren’t mentioned anywhere in the Constitution and are often in direct conflict with the history of the Constitution.
Some examples:
For example, the Eleventh Amendment to the Constitution unambiguously provides that states cannot be sued without their consent by a “citizen of another state.” Justice Scalia enthusiastically accepted a line of cases twisting this text to invent a rule that states can’t be sued even by their own citizens. He endorsed this conclusion not just on stare decisis grounds but on the merits, and on the bizarre basis, one that might even embarrass a so-called “living constitutionalist,” that the Amendment’s clear text was more important for what it “reflected” than for what it “said.”
Justice Scalia also concocted a rule that even when Congress is acting within its power to regulate commerce among the states, or any other power expressly given it in the Constitution, Congress cannot require states to help implement otherwise valid federal law. This so-called “anti-commandeering” rule is nowhere in the Constitution and directly conflicts with clear statements in the Federalist Papers that the states that ratified the Constitution understood that Congress could use them to implement federal law. If we needed a draft in a hurry, the strange made-up nature of this rule could become apparent quite quickly.
Justice Scalia voted to strike down a key section of the Voting Rights Act in a decision in which Chief Justice Roberts said that, even when Congress acts pursuant to its authority under the Reconstruction Amendments, ratified in the wake of the demise of slavery and the Civil War, it cannot treat different states differently absent a very strong reason. This principle is nowhere in the text of the Constitution, and it is hard to imagine any rule being more inconsistent with the original meaning of the Civil War Amendments than Chief Justice Roberts’ completely fabricated “equal state sovereignty” rule, which the Court announced for the first time ever in 2013.
Plus some further examples. Without conceding the validity of any of them, it does seem that these are points Justice Scalia's defenders need to consider.
Posted at 6:47 AM