Tag: SCOTUS

In defense of grave dancing: It’s true that Scalia was a human being, but I still refuse to mourn a-holes like him politely

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Ronald Reagan, Antonin Scalia, Margaret Thatcher (Credit: AP/Doug Mills/Haraz N. Ghanbari/Charles Tasnadi/Photo montage by Salon)

When a public figure we loathe dies, we’re expected to observe a certain level of decorum. Here’s why that’s wrong

Originally posted February 18, 2016 on Salon

Like many people, I found out about the death of Antonin Scalia through social media, a Facebook chat to be specific. “DUDE! Scalia may be dead,” my friend messaged me.” After a few minutes of silence, my friend returned, in all caps, once again, to proclaim, “HE’S DEAD!!!!!!!!!!!!!”

While Scalia’s unexpected death provoked a pseudo-constitutional crisis among the right wing, it provoked an existential crisis in me. I felt simultaneously happy, relieved, hopeful and guilty. He’s someone’s father! Someone’s husband! RBG’s bestie and opera partner! Even worse than what I felt was what I wanted to do! “OMG!” I typed to my friend. “Would a listicle of Scalia’s Worst Quotes be the worst?” Ironically enough, my friend’s verdict was Scalian; swift, punishing and punctuated with hyperbole and exclamation points: “NO! YOU MUST DO IT!” F&*( DECORUM!”

A woman of checks and balances, I sought counsel from other sources via other means of communication. I skyped an editor to ask for her ruling on the issue. Her judgment was Kennedyian and moderate: She urged me to wait 24 hours, reminding me that “dancing on people’s grave [was] not a good look.” When I texted another friend, a journalist, he concurred with the editor, writing, “I wouldn’t celebrate it.”

The majority, it seemed, had ruled. It would be in poor taste and bad judgment, an ethical breach, to openly rejoice about Scalia’s death.

I had no grounds for appeal. The decision was final… or so it seemed.

But then, I felt a flickering of hope, as I saw a flickering of light from my cellphone. With bated breath, I watched as dots of i-message judgment popped up on my screen. The journalist, it seemed, hadn’t finished his ruling: He thought I could make the argument that his death may have “saved the planet” with the court now unlikely to strike down Obama’s far-reaching emissions plan. “He was a bigot who made millions of people suffer.” With this Breyersian analysis, my friend granted my piece, which I had planned to kill, a last-minute reprieve.

I decided I’d “nudge,” if not totally violate, decorum. I compiled some of the late justice’s most “memorable quotes.” I can’t say I’m proud of my word choice. The cop-out-est of adjectives, “memorable” allowed me a convenient vagueness. But, in all fairness, Scalia’s equal opportunity bigotry made it hard to come up with a headline-length title that did him any justice: “Scalia’s most homophobic and/or sexist and/or racist and/or savage decisions, quotes or off-the-cuff statements” is a mouthful.

The guilt I felt over turning Scalia’s death into shareable content started to dissipate as I sorted through the bottomless pit of sexism, homophobia and racism that was his legacy.  His cruel and draconian incarceration opinions, which had caused so much suffering, now offered me comfort, solace, conviction and a sense of righteousness.

But what really emboldened me was his near fetish for death and the death penalty. Not only did Scalia defend capital punishment for youth and people with mental disabilities, he also has famously said, out loud, that it wasn’t unconstitutional to execute the innocent as long as they had a fair trial: “[t]his court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

Why should Scalia, who was so brazen about his disregard for human life, even innocent life, deserve respectful or solemn commemoration in the public sphere?

Scalia wasn’t merely defending the death penalty in theory as an acceptable and appropriate punishment for guilty people; he was defending it for the innocent if it came to that. And, as one of the nine people on the Supreme Court, his ideas contributed and buttressed the state-sanctioned murder of innocent people.

Surely, whatever deficit of empathy I revealed paled in comparison to Scalia’s chasm of compassion. If he could sleep soundly with the deaths of innocents on his mind, who was I to feel guilty about a death I had nothing to do with. It seemed wrong. And also, profoundly un-Scalia-like. And that was when it occurred to me: What better way to honor the late justice than by asking #WWSD? What would Scalia do? The answer was obvious: He’d react to the loss of human life with heartlessness, cruelty and adherence to his own conviction.

To be fair, this issue of how to mark the passing of the wicked and depraved does not belong to Scalia alone. The question of public celebration of death was raised when Osama bin Laden was assassinated. I’m in no way comparing Scalia and bin Laden, but the contrast between the two sheds light on how and why society determines norms around mourning. I did not celebrate the death of bin Laden because we have laws to deal with outlaws and trials to teach defendants and the public about the nature of crime and punishment. But most Americans rejoiced at the death of a man who masterminded an attack on the United States that killed 3,000 people.

The truth is, these norms are based on politics, vested interests, an unquestioning acceptance of the status quo and powers that be. They are not based on ethical principles or moral absolutes.  How many leaders have ordered the killing of thousands of civilians? When the leaders are ours, we call it collateral damage. When the leaders are our enemies, we call it murder.

There are, of course, rules of engagement and the rule of law. And Scalia isn’t technically a murderer. As a judge, he gets to implement state-sanctioned murder, also called the law. But as any student of civil rights history knows, the issues of legality and justice are separate. What Martin Luther King did was illegal. But it wasn’t unjust. What Scalia did may have been legal but it was unjust. And because he was a judge, Scalia had the power to codify his own murderous behavior, enshrining it into the law.

But let us return to the question of whether the late justice, despite his numerous crimes and offenses, still deserves to be mourned with some level of decorum. After lengthy analysis and hand-wringing, I can only conclude: hell no! It is hypocritical and sanctimonious to require anyone to grant Scalia the compassion he relished denying others. Mourning itself becomes distasteful and disrespectful when the person who has died was not simply a flawed person or a misunderstood person or a deeply misguided person, but a person whose life and legacy were built on the pain, damage, humiliation and injustice he caused others and our world at large.

When we decorously mourn Scalia, or other powerful and public figures like him, what are we doing to the family members and loved ones of those people whose appeals Scalia voted against? Is there not something morbid about mourning a (state-sanctioned) murderer?

If only our culture cared as much about the lives of the living as it does the lives of the dead, or the unborn, for that matter. The culture of decorum that elevates a person’s life after death is, in some way, a perfect corollary to the culture of “life.”

Our tradition of mourning, rooted in religion, has codified centuries of war and pillage. Paying homage to people once they are dead doesn’t absolve us from killing them. Death cannot and should not change history. Solemnifying and ennobling the act of leaving the mortal sphere has the dishonest and painful effect of whitewashing the actions of those who were hateful, destructive, or worse. The damage wrought by people like Scalia will long outlive them.

Rest in peace can’t undo a career’s worth of damage; and pointing this out is not an act of disrespect. Ignoring it is.

Unlike Scalia or our leaders, however, I don’t believe the desire for vengeance should be embraced on a legal or policy level. I know Scalia was very Catholic in his thinking and siring (of nine children). And I, on the other hand, am a godless Jew. But when I heard about Scalia’s death, I immediately thought of a Christian hymn, of all things. Written in 1869 by the American Baptist minister Robert Wadsworth Lowry, “My Life Flows on in Endless Song (How Can I Keep From Singing)” was amended by Quaker Doris Penn, popularized by the folk singer Pete Seeger and, later, the new-age singer Enya. Since I’m not a strict constructionist, I will quote the verse that Penn added nearly a century after it was first written:

When tyrants tremble, sick with fear,

And hear their death-knell ringing,

When friends rejoice both far and near,

How can I keep from singing?

In prison cell and dungeon vile,

Our thoughts to them are winging;

When friends by shame are undefiled,

How can I keep from singing?

12 “memorable” quotes from Antonin Scalia

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Antonin_Scalia_Official_SCOTUS_Portrait (2)

Originally posted February 14, 2016 on RawStory

Conservative Supreme Court justice Antonin Scalia, who spent decades warning the nation about the flagpole-sitting nature of homosexuality, died of natural causes on Friday at a luxury resort in Texas. He was 79.

Death is always sad. I feel bad for his family. And it’s not time to talk about politics. (Unless you’re a Republican who really wants to honor Scalia’s memory by using his death to push for a totally unheard of postponement of his replacement so it happens after Obama leaves office.)

But it might be time to memorialize the man through rounding up some of the most memorable things he ever said or wrote.

1.Homosexuality: It’s a lot like murder!  Romer v. Evans challenged a Colorado amendment which banned outlawing anti-gay discrimination (I know, I have a headache, too) in 1993. Justice Scalia expressed his sympathy for the people of Colorado, who wanted nothing more than to protect themselves from gay sex like they would from murder:

The Court’s opinion contains… hints that Coloradans have been guilty of ‘animus’ or ‘animosity’ toward homosexuality, as though that has been established as Unamerican. . . . I had thought that one could consider certain conduct reprehensible–murder, for example, or polygamy, or cruelty to animals–and could exhibit even ‘animus’ toward such conduct.

2. Homosexuality: it’s a lot  like incest! The Supreme Court struck down a Texas ban on sodomy in 2003 in Lawrence v. Texas. Amazingly, Scalia’s murder comparison had not convinced his colleagues of the danger posed by the gays. So he tried again. Only this time, with a different analogy.

States continue to prosecute all sorts of crimes by adults “in matters pertaining to sex”: prostitution, adult incest, adultery, obscenity, and child pornography

3. Homosexuality: it’s a lot like flagpole sitting! To his credit, Scalia would try, time and time again, to use the power of simile to enlighten his colleagues. Within the same dissent, he pointed out that not everything was a right just because it had once been illegal. The act he chose to use to demonstrate is a great American pastime:

Suppose that all the states had laws against flagpole sitting at one time [which they then overturned].Does that make flagpole sitting a fundamental right?

4. Legalizing same-sex marriage: nothing more than ‘fortune cookie justice.’  When the Court legalized same-sex marriage in Obergefell v. Hodges in 2015, Scalia lamented that,

The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

5. Legalizing same-sex marriage: nothing more than pretentious, egomaniacal ‘fortune cookie justice.’ In the same dissent, he described the majority opinion as being,

couched in a style that is as pretentious as its content is egotistic.

6. ladies: not protected by the Constitution. Scalia didn’t limit himself to reactionary ideologies based on sexual orientation. Ironically, his bigotry embraced the diversity and equality that, he claimed, the Constitution lacked. During a 2011 interview with California Lawyer, Scalia said,

Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.

Continue Reading…

The Notorious RBG talks ‘unconscious bias,’ abortion, and push-ups

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Image via Wikipedia
Image via Wikipedia
Originally posted on Feministing

In an exclusive interview that appeared on The Rachel Maddow show on Monday, U.S. Supreme Court Justice, feminist hero, and Tumblr sensation Ruth Bader Ginsburg talked to MSNBC’s Irin Carmon, sharing her thoughts on abortion, her push-up routine, and how she describes President in Obama in one word.

See the video here…
Here are some of the greatest moments from their discussion…

On unconscious bias:

…what’s still with us and harder to deal with is what I call unconscious bias. And my best example is the symphony orchestra. When I was growing up, one never saw a woman in the symphony orchestra, except perhaps playing the harp. People who should have known better like The New York Times critic, Howard Taubman said, “You could put a blindfold on him and he could tell you whether it’s a woman playing the piano or a man.”

Someone had the simple idea, “Let’s drop a curtain. Let’s drop a curtain between the people who are auditioning and the people who are judging.” And almost overnight, there was a sea change. Once the curtain was dropped, the testers couldn’t tell whether it was a man – or a woman. And they made their judgments based on the quality of the performance.

Some years ago, when I was telling this story, a young violinist told me, “You left out something.” “Well, what? What did I leave out?” “You left out that we auditioned shoeless, so they won’t hear a woman’s heels behind the curtain.” That device of the dropped curtain isn’t so easy to duplicate in other areas.

On abortion access:

It’s not true that it’s [abortion] inaccessible to women of means. And that’s the crying shame. We will never see a day when women of means are not able to get a safe abortion in this country…. It hurts women who lack the means to go someplace else… all the restrictions, they operate against the woman who doesn’t have freedom to move, to go where she is able to get safely what she wants.

On how she does 20 pushups: “We do ten at a time. And then I breathe for a bit and do the second set.”

On what she hopes young women take away from her work:

I would like them to have the enthusiasm that we had in the ’70s – determining that the law should catch up to the changes that have occurred in society, changes in the way people whatever, the realization that no one should be held back, boy or girl – because of gender, artificial gender barriers. That everyone should be – in the words of a wonderful song that Ms. Magazine popularized, everyone should be free to be you and me.

On the one word that comes to mind when she hears the name President Obama: “Sympathy. That’s a French word. It means more than sympathetic. It means who cares about other people.”

Read the rest of the interview here.

Apparently, SCOTUS thinks firing women for breastfeeding isn’t discrimination

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US Supreme Court
Originally posted on Feministing

The Supreme Court refused to consider the case of Angela Ames, a woman who was forced to quit her job because she needed to breastfeed, deciding that firing a woman for breastfeeding isn’t discrimination because men can lactate. The argument may sound progressive and inclusive, but
it’s the total opposite.

Image via Wikipedia

When Angela Ames returned to work at the Nationwide Insurance Company after her maternity leave, she found another employee’s belongings in her workspace. She needed to pump breast milk for her child but was denied access to the lactation room because the company needed three days to process the paperwork. Unfortunately, nobody had bothered telling Ames about this lengthy lactation-room-admissions policy before she came back to work. She tried to express milk in a “wellness room,” but it was occupied. By this point, Ames, who had been unable to express her milk, was in pain and had started leaking. When she asked her supervisor where she could pump, he responded, “Just go home to be with your babies.” And then, like the chivalrous, selfless prince that he is, dictated her letter of resignation.

Ames tried to sue over what seems to be obvious pregnancy and gender discrimination. But in March 2014, the Eighth Circuit Court decided that she had not met the legal burden of showing that her treatment was so bad that any reasonable person would have resigned. Because, a reasonable person would totally tolerate the humiliation of having someone else’s stuff in their workspace, being denied access to a place she can nurse, being in pain and leaking, being told to go be with their babies, and then having their letter of resignation written for them.

But here’s the kicker! The Eighth Circuit was refusing to overturn an earlier decision, which also sided with Nationwide in 2012. This ruling said that if Ames had, indeed, been fired over her needing to breastfeed, that wouldn’t constitute pregnancy-related discrimination, anyway. Want to know why? Because you don’t have to be pregnant to lactate. Nor do you have to be a woman. As the Court wrote in its decision, “It is a scientific fact that even men have milk ducts and the hormones responsible for milk production.”

Now, this may sound like a progressive inclusive point. But let’s not kid ourselves. This is about refusing to recognize blatant discrimination, not about challenging the gender binary. As the ACLU’s Galen Sherwin wrote on Monday,

It’s certainly important to acknowledge that some men (including some trans men) can and do lactate. But it should also be self-evident that firing someone because they are breastfeeding is still a form of sex discrimination, and one that is all-too-frequently experienced by new mothers.

Sherwin also points out that finding loopholes to justify discrimination has a long and rich history.

The court’s reasoning in this case echoes old Supreme Court pronouncements that discriminating against pregnant women at work isn’t sex discrimination because both men and women can be non-pregnant. Congress long ago rejected this ridiculous reasoning when it passed the Pregnancy Discrimination Act. It’s disheartening to see it resurface again.

As Sherwin also explains, this case,

shines a harsh light on the multi-layered workings of structural discrimination: Workplace policies that don’t make space for the realities of pregnancy and motherhood, employers’ entrenched sex stereotypes and implicit bias, and courts that — despite decades-old legal protections — still manage to turn a blind eye to the pervasive discrimination faced every day by working women.

This isn’t just sanctioned discrimination. This is institutionalized.