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Pierce writes: “Antonin (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.”

Supreme Court Justice Antonin Scalia. (photo: AP/Morry Gash)
Supreme Court Justice Antonin Scalia. (photo: AP/Morry Gash)

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. your social media marketing partner


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+14 # davidr 2014-06-30 08:41
It's misleading to say that our government used to be more "gentlemanly." In essence, our government has always worked to give the operative political parties, officials and other interest holders what they could live with. Often enough, that could be achieved through compromise or horse-trading, but if not, then through hardball tactics of any kind, up to and including violence.

The problem today is not a change in the level of comity, it is a change in what our political actors are able to live with. It isn't that gentility is minimal, it's that political demands are maximal.
-6 # Gnome de Pluehm 2014-06-30 09:37
There is guilt on all sides; this country cannot last another three generations.
+5 # kalpal 2014-07-01 08:19
The GOP is and has been 100% evil. The Democrats are approximately only 99% evil and that difference is what has made this country work.
+56 # tswhiskers 2014-06-30 09:57
I may be wrong about this, but SURELY this is the first in Congressional history that the 2 parties have viewed each other as enemies. Obama has 2 faults according to Reps.: he's black and a Dem. Reps. in the Congress want more than anything to get back into power, meaning majorities in both houses and hold the WH, and keep them. In the '90's Tom Delay made it clear the party goal was to make the Reps. a PERMANENT majority party with the Dems. as token opposition. I believe to this day this is still their goal. This is why they will use (misuse) any means they can find or make up to enhance their power incl. impeachment, the increased majority in the Senate needed to pass legislation, voter ID laws, and downright chicanery in state precincts or anywhere else to achieve this end. Maddeningly, the Dems. have mostly played along with this agenda to the Dems.' obvious detriment. I used to call Dems. "chicken-sh** wonders". To some extent this insult still applies. I feel entirely sure our next president, should he/she be a Dem., will be treated in the exact same way. I also feel sure that until the Reps. decide they will get further with the public by becoming once again the same party they were before Reagan et al, that our political system will continue on its dysfunctional, crazy way.
+50 # Buddha 2014-06-30 10:33
Scalia simply takes the political opinion he wants to achieve, then pulls out of his ass whatever illogical (and frequently contradictory in relation to his own earlier rulings) rationalization s needed to reach that opinion. He's the ultimate political operative in a black dress.
+41 # ericlipps 2014-06-30 10:50
What can you expect from a Justice who got his law degree from Screw U?

I know, that was crudely put. But Scalia has spent years going out of his way to stick it to Democrats, liberals, unions and anyone else he connects with any of those three. His rulings, however carefully worded (and they aren't always even that)carry a distinct air of vindictiveness, a "put up your dukes" tone not usually associated with "judicial temperament" but all too common in political activists.
+26 # Farafalla 2014-06-30 13:08
Indeed, Scalia is a beer hall fascist in the style of Mussolini.
+26 # fredboy 2014-06-30 11:55
Glad some are now noticing what I always knew: Scalia is a fake.
+2 # kalpal 2014-07-01 08:20
he is what his father made of him, a fascisti.
+4 # PCPrincess 2014-07-01 11:21
Not withstanding the current 'separation of powers' written into our legal binding documents, why in the hell aren't we removing his ass from the bench. No excuses. Whatever it takes, he must be relieved of duty, period. I am already well aware of the lifetime appointments, etc. But, again, I ask the question: if we pay his salary, why is he still employed?
0 # LAellie33 2014-07-27 01:01
Impeach this imposter bastard!

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