On television, Justices Thomas and Scalia lavishly praise extremist liberal activists. For those who eviscerate the Constitution, such praise is unjustified on the merits as well as contradicted by the scathing writings of Thomas and Scalia themselves.
I. LAVISH PUBLIC PRAISE
It is daunting to dispute Justice Clarence Thomas when one agrees that he is a “national treasure” and “our greatest justice.” Nevertheless, with the president’s second term ominously portending a Supreme Court nightmare unimaginably more spine-chilling than it already has been for the last two generations, it is vital to place in perspective the justice’s repeated recent televised appearances “lavish with praise for his colleagues — especially the liberals.”
Last September, Thomas averred that all justices are “good people” who “try to get it right” and who “don’t agree with each other, but … agree that this is more important than we are and we’ve got to make this thing work”; he singled out Justice Ginsburg as “a good person” and “fabulous judge.” On January 29, he explained that “she makes all of us better judges” and proclaimed Justice Kagan a “delight.”
Thomas is not alone. Purportedly conservative commentator Jennifer Rubin asserts: “I may not agree … with … Justice Breyer’s constitutional approach, but I have no doubt he is trying to get it ‘right.’” On November 27, Justice Scalia stated all his fellow justices are “honest” and decide cases “fairly and honestly.” Previously, he characterized Justice Ginsburg, with whom he often disagrees, as among “some very good people [who] have some very bad ideas.”
These seemingly reassuring statements are glittering generalities lacking any evidence or explanation of meaning. Specifically, what differentiates “good” and “bad” people? Should officeholders be evaluated in a vacuum divorced from the consequences of their official actions based on “bad ideas”? Does sincerely “trying to get it right” make a judge “good” and “fabulous”? Why is it good to “make this thing work” if doing so causes great harm? Is the televised off-the-cuff warm oral praise by Thomas and Scalia supported by their own considered written words in official Supreme Court opinions?
Before turning to those writings, it is important to provide a context.
A College Bull Session?
The Supreme Court is not a debating society, a scholars’ think tank or an ongoing college “bull session.” Justices wield fearsome power to determine the outcome of real controversies between people engaged in very substantial, often life and death, disputes. Decisions often cause immense joy and agony – for example, joy for rapists and murderers and unspeakable agony for their victims. Moreover, the high court decides not only winners and losers among actual litigants but also among competing public interests on the most critical and fiercely contested political issues. Justices’ “ideas” result in highly consequential decisions adopting or imposing values and policies, often undemocratically.
Lincoln famously warned: if policy “upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers.” To a large extent, that has happened. The high court has become the last best hope of democracy’s losers. When they cannot prevail in fair debates and elections, they zoom to the court to overturn the results.
In his autobiography, Justice Douglas revealed a “shattering” statement by Chief Justice Hughes: “At the constitutional level where we [justices] work, 90 percent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections” Douglas added: “I had thought of the law [as] principles chiseled in granite. I knew judges had predilections. …But I had never been willing to admit to myself that the ‘gut’ reaction of a judge … was the main ingredient of his decision … Judges … represent ideological schools of thought …. No [justice] was neutral.”
So the “very bad ideas” of justices are not harmless academic musings. They are “gut reaction” value judgments. And not just minor ones. Abusing “interpretation,” justices often ram their own personal morality down the throats of a strongly opposed large majority. Consider two examples.
First, it is largely unknown that media-protected justices have played an immensely toxic role in encouraging highly unpopular illegal immigration. Law professor Lino Graglia demonstrates that, despite widespread misinformation, the Constitution does not grant citizenship to American-born babies of immigrants. It is justices’ rulings that effectively have made them citizens. Moreover, an unelected bare majority explicitly required that illegal foreign-born aliens be given a free public education, gratuitously adding that unlawful aliens’ babies born here are citizens – thus “entitled to all the advantages of the American welfare state.”
Second, for four decades, justices who consider themselves morally superior to the public have done everything they could to subvert and repudiate capital punishment, despite its being explicitly and repeatedly authorized by the Constitution. Those vitally affected, especially victims and their traumatized loved ones, are not likely to yawn about good versus bad ideas. As explained elsewhere, “[a]n unbridgeable values chasm exists between victims of the worst crimes and the zealous devotees of their depraved victimizers.” The latter are likely to pronounce “good” those justices who will do anything to save murderers and rapists; the former are likely to disagree sharply – and painfully.
What’s “Good” about Making “Bad Ideas” “Work”?
Justice Thomas implies that there is something laudatory about making the court work. But as shown by Thomas Sowell, “very bad ideas” can be very destructive and even horrifying. For example, if Iran successfully produces nuclear weapons that “work,” there can be nuclear attacks against Israel and the United States, as well as nuclear blackmail. That would certainly be an example of something that “works.” Scalia himself recently observed: “kings can do … good stuff that a democratic society could never achieve … Hitler produced a marvelous automobile and Mussolini made the trains run on time. So what? That doesn’t demonstrate what’s a proper interpretation of a Constitution.”
Is celebration warranted when improper and often dishonest so-called interpretations “work” to produce both unconstitutional and harmful or even disastrous results? Before giving kudos to the Supreme Court for “working,” it must be determined if this is toward good” or “bad” policies and if it results from abuse of power to impose personal values of justices rather than the People’s as expressed in their Constitution and statutes.
Obviously, the Supreme Court, as an institution, works in the sense that it has questionable legitimacy and its diktats are, so far, accepted. But in another sense, justices, for two generations, have “worked” by undermining the rule of law to achieve a far left agenda that could not be implemented by full, fair and open debate in a democratic republic. And they are not done yet – not by a long shot!
Making bad ideas work has required a frontal assault on the rule of law for a very simple reason: From Woodrow Wilson to Barack Obama, condescending leftist elitists have realized that the Constitution’s protected freedoms would prevent dictatorship of often unpopular “reforms” by those who think they know what’s best for the people better than the people themselves.
Recently, frustrated leftist law professor Louis Michael Seidman has called the Constitution so “utopian [yet] downright evil” that we should “give up” on it. He apparently thinks the Supreme Court has not rendered the document sufficiently unrecognizable to its Framers.
Just last June, five “fabulous” justices, over a vehement ObamaCare dissent joined by Thomas and Scalia, made the court “work” by driving another nail in the coffin of federalism, a critical Constitutional safeguard of liberty against federal tyranny. Justices have been legitimizing unlimited federal power for over 70 years, as they previously sanctified segregation for 58 years. The court “worked” by seizing the highly divisive abortion issue from the states, creating a “right” that even highly respected prominent liberal scholars concede is nowhere in the Constitution. And it should never be forgotten that, notwithstanding President Buchanan’s prediction that the slavery issue would be “speedily and finally settled” by the Supreme Court, six justices “worked” to produce a decision that took “a civil war to overturn,” as the late Judge Bork put it.
“A” for Effort?
There are two problems with the mantra that sincerely “trying to get it right” makes a justice “good.”
First, this is a strikingly low standard for highly educated and trained powerful judges. They don’t have to actually get it right; if they try, give them an “A-for-effort.” Should medical and law licenses be granted to all who study very hard, including those who fail their exams? Does “trying to get it right” trump actually being right? As Winston Churchill pointed out, “[i]t is no use saying, ‘We are doing our best.’ You have got to succeed in doing what is necessary.” What is necessary for justices is to apply the law, not misstate and rewrite it.
Second, sincerity can be downright dangerous. It is a short step from “trying to get it right” to arrogantly concluding, not merely that a view or policy is right, but that this must be forced upon everyone for their own good by elitists who presume themselves to be betters because they are cocksure that they know better.
Judge Learned Hand cautioned precisely that “[t]he spirit of liberty is the spirit which is not too sure that it is right.” Self-righteous self-certainty has been a hallmark of ruthless fanatics throughout history. After all, for one convinced of being “right,” wouldn’t it be immoral, or even sinful, to tolerate what is “wrong”? If necessary, why not just torture and murder heretics?
Surely, the fanatics who flew planes into the World Trade Center thought they were “right.” By all accounts, sixteenth century Pope Paul IV was personally honest and incorruptible; but he also was convinced of his moral superiority and that he was “right.” So he became a “reformer.” The result: ghettos and persecution for Jews and an intensified Inquisition accompanied by the most unimaginable torture to “save souls.” Positive he had “got it right,” this autocratic pope ordered law student Pomponio Algerio to be slowly boiled to death in oil to save his soul and protect the church from heresy. In turn, an unrepentant Algerio, convinced of his own rectitude, calmly accepted being boiled in oil – also to save his soul!
Giving thanks for small favors, at this point in history, justices do not actually boil in oil those who disagree with them. Nevertheless, the sobering reality, explained below in Part III, is that these “fabulous” and “good people” have no qualms about further and cruelly torturing the tortured to protect their torturers.