You know that Supreme Court Justices like Antonin Scalia and John Roberts are intellectual giants, because their right-wing groupies constantly tell us so. And, of course, an obliging media gladly repeats that trope. But I’m starting to think maybe I don’t understand the meaning of “smart,” because for supposedly smart guys, they have a tendency to say things that sound … well … not so smart, at times.
I mentioned yesterday Justice Scalia’s apparent misunderstanding of how the Fourteenth Amendment’s Equal Protection Clause works, but that’s not the only time he’s demonstrated a tenuous grasp of legal principles. Consider that this is the Justice who apparently has difficulty understanding his own opinion in District of Columbia v. Heller, 554 U.S. 570 (2008), the case that first found a personal right to keep and bear certain types of firearms under the Second Amendment. In Heller, Justice Scalia wrote:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. …
We also recognize another important limitation on the right to keep and carry arms. [United States v.] Miller [, 307 U.S. 174 (1939),] said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” [Citations omitted]
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
So, Justice Scalia said, in his own opinion, that “weapons that are most useful in military service — M-16 rifles and the like — may be banned” … yet in an interview last July with Fox News’ Chris Wallace, he stated (via Think Progress):
Obviously the Amendment does not apply to arms that cannot be hand-carried — it’s to keep and “bear,” so it doesn’t apply to cannons — but I suppose here are hand-held rocket launchers that can bring down airplanes, that will have to be decided.
Actually, no, sir. You already said weapons like that were not covered by the Second Amendment. But that was only in a Supreme Court opinion. That you wrote. It’s not like it was on Fox News or anything.
In any event, Mr. Justice Roberts, likewise a towering intellect of the right, has his moments, too. In yesterday’s oral arguments in United States v. Windsor, the case challenging the Defense of Marriage Act, Justice Roberts was confused by the Obama Administration’s decision not to defend the law on the grounds that it “violates the equal protection component of the Fifth Amendment.” Talking Points Memo has the details:
“If he has made a determination that executing the law by enforcing the terms is unconstitutional, I don’t see why he doesn’t have the courage of his convictions,” Roberts said of Obama, “and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, oh, we’ll wait till the Supreme Court tells us we have no choice.”
So, wait. Let me see if I can un-muddle the Honorable Justice’s severely muddled syntax. He points out that the Obama Administration believes the law is unconstitutional. Check. Got it. But then he says that because Pres. Obama has determined “that executing the law by enforcing its terms is unconstitutional” the Obama Administration should, nonetheless, “execute not only the statute, but do it consistent with his view of the Constitution” – so, “execute” the law by … uh … not executing it?
If I can translate from badly-tortured-legalese to English, what Justice Roberts appears to have said was this: If the President thinks the law is unconstitutional, he should just refuse to enforce it. And here’s the kicker. Justice Roberts seemed to be particularly aggravated that the President wanted to – get this! – wait until the Supreme Court ruled on the constitutionality of DOMA before refusing to enforce it. Even though there already were cases in federal court winding their way up to the Supremes for a final determination of the statute’s constitutionality.
No, seriously. According to Justice Roberts’ understanding of the Constitution, if the President believes a law is unconstitutional, and that law is currently being challenged in court, the President is supposed to disregard the legal process itself, disregard the role of the Supreme Court, and simply refuse to do what the Executive Branch is supposed to do. Which is to, you know, execute the laws passed by Congress. Unless, of course, the Supreme Court says those laws are unconstitutional.
And you thought the President’s decision not to defend DOMA in court was controversial. Imagine the heads that would’ve exploded if the President simply said: The law’s unconstitutional. I won’t enforce it. The end.
Oh, and pay no attention to this (also via Think Progress – those guys are everywhere!):
[I]f Roberts and his fellow conservatives don’t like Obama’s decision, they have only one person to blame for laying the groundwork for it — Chief Justice Roberts.
In 1990, the Justice Department was tasked with defending a law protecting an affirmative action program governing broadcast licensing to minority-owned stations. Despite the fact that none of the traditional reasons why DOJ might refuse to defend a federal law were present in the case, then-acting Solicitor General Roberts refused to defend the law anyway. Instead, Roberts signed a brief arguing that the law was unconstitutional.
Of course, one (ahem) possible reason that Justice Roberts wishes Pres. Obama simply refused to enforce DOMA is that non-enforcement likely would have rendered the pending legal challenges to the statute moot, so the Supreme Court wouldn’t have to make the call. Kind of like the way basketball referees don’t like to determine the outcome of games by calling fouls as time winds down … even though they’re, of course, determining the outcome of games by not calling fouls as time winds down. Because here, if the Court were able to dismiss Windsor and its companion cases as moot, the next president could simply reverse course, re-enforce DOMA, and voila! DOMA would be back in full force and effect.
But that damn Obama. He has the nerve to respect the rights of individuals and his job as head of the executive branch and the role of the court system in determining the constitutionality of laws. All of which makes Justice Roberts’ life infinitely more complicated.
Hey, man. Judgin’ ain’t easy.
But remember: These are the “smart” ones.
[Cross-posted at Angry Black Lady Chronicles]