The Burlesque “Originalism” of Antonin Scalia

By Charles Pierce, Esquire

30 June 14

ntonin (Short Time) Scalia had another attack of burlesque "originalism" in the concurrence he insisted on reading Thursday morning when the Supreme Court found against the president in the case of Canning v. U.S., a case that held that the president cannot make recess appointments as long as somebody remembers to prop Mitch McConnell's empty suit up at his desk. (I'm paraphrasing.) Scalia, who simply is the world heavyweight champeen at not giving a fck, argued that the clause in the Constitution allowing recess appointments only could apply during formal Senate recess because that's the way the Founders wanted it. Scott Lemieux, who is having a very good week, put paid to this nonsense by pointing out, a) that recess appointments haven't worked that way since Andrew Johnson, and b) as Lemieux puts it, "...worse for Scalia's argument, as Breyer demonstrates, is that prior to the Civil War Senate sessions were comparatively short on the one hand and intrasession recesses for all intents and purposes didn't exist on the other. What we can infer about what Madison, Monroe, Jackson et al. thought about intrasession recess appointments from the fact that they didn't make any, in other words, is nothing. That they didn't make intrasession recess appointments is about as relevant as the fact that they didn't make statutes available in PDF form."

What struck me about the decision is the context in which it was raised. It represents more evidence for the collapse of the kind of gentlemen's agreements, and the institutional politesse, that always acted as the grease in democracy's wheels. Other elements included the tacit agreement that the filibuster was something saved for special occasions, that raising the debt ceiling was a pro forma vote, and, to cite the most spectacular example, that impeachment required specific high crimes, and was not just a political device, and was ultimately, as Thomas Jefferson called it, a scarecrow. This was not always a good thing, but these informal arrangements at least enabled the government to function. They were based in the fundamental philosophy that suffused the writing of the Constitution -- that opposing political forces could be made to balance each other out so long as both sides agreed that elections mattered, and that the government should, indeed, function. It is now the policy of the Republican party, in Congress and outside of it, that every chokepoint built into the system should be operated in the red zone for the purposes of refusing allow this particular president to function, and refusing to give a fair hearing to policies and legislation with which it disagrees. In turn, this resulted in the president's pushing the envelope of the recess appointment process simply so that the National Labor Relations Board could work.

So, essentially, what the court said here is, you guys solve your own problems. You have a Constitution. Figure it out. It's not our business except to keep you both in line. This does not seem entirely unreasonable, until you realize that the particular attitude expressed there is one more reason why the phrase, "Except For Bush v. Gore" should be carved in Latin above the doors to the Court.