February 15, 2016

Some reasons the media should stop fawning over Scalia

From American Prospect; Decisions in which Scalia helped tip the vote

McCleskey v. Kemp (1987): In Justice Scalia’s very first year on the Court, he joined this 5-4 majority opinion holding that powerful evidence of race discrimination in death-sentencing did not amount to an actionable violation of the Equal Protection Clause.

Harmelin v. Michigan (1991): The Court upheld a life sentence for cocaine possession and greatly narrowed Eighth Amendment “proportionality review,” under which criminal penalties may not be disproportionately harsh in light of the underlying offense.

Kimmel v. Florida Board of Regents (2000): Congress can’t authorize lawsuits against states for age discrimination.

Boy Scouts v. Dale (2000): The Court held that under the First Amendment, states cannot compel a private association (in this case, the Boy Scouts) to stop discriminating against LBGT people.

U.S. v. Morrison (2000): The Court struck down key parts of the Violence Against Women Act of 1994, holding that those provisions exceeded congressional power both under the Constitution’s Commerce Clause and under the enforcement provisions in Section 5 of the 14th Amendment.

Citizens United v. Federal Elections Commission (2010): The Court reshaped the U.S. political system, largely deregulating campaign spending and allowing unlimited infusions of money by individuals and corporations.

Connick v. Thompson (2011): The Court narrowed the liability of prosecutors’ offices even for egregious misconduct.

AT&T v. Concepcion (2011): In an opinion written by Scalia, the Court undermined consumers’ ability to bring lawsuits or group arbitration cases. Consumer contracts—like the one you agree to when you buy a cell phone—often require that disputes or accusations of illegality be resolved in individual arbitration, rather than group arbitration or either individual or class litigation. With each consumer harmed only a little bit—a dollar, or a thousand dollars—only aggregation in a group matter gives anyone sufficient incentive to bring a case at all. That’s why, in some states, such agreements were disallowed. Scalia’s opinion for the Court interpreted the Federal Arbitration Act of 1925 to disallow state law that insisted that some aggregated avenue of redress remain open. The result is that businesses can often practically immunize themselves from damages by carefully drawn consumer contracts.

Wal-Mart Stores, Inc. v. Dukes (2011): In another 5-4 Scalia majority opinion, the Court put one more major obstacle in the way of class-action suits—this time, particularly civil-rights actions. The decision shut down a nationwide, all-at-once sex discrimination lawsuit by the million-plus women who had worked or were working for Walmart. Instead, the women—and others like them in other lawsuits—would have to conduct litigation in far smaller, more individually fact-intensive forms.

Burwell v. Hobby Lobby (2014): Under the Religious Freedom Restoration Act, closely held for-profit corporations are exempt from the Affordable Care Act’s contraception mandate.


Albert Krauss said...

Who is "fawning"? I see the N.Y. Times simply reporting that chaos is about to descend on the political scene. Your summary is great, all the more to apply the adage to this man's passing as "Good riddance of bad rubbish".

Rob said...

CNN is definitely fawning -- one of their news-performers this morning said that that Obama would be nominating Scalia's replacement and then corrected himself saying "no one could ever replace Justice Scalia the president would be nominating someone to fill the vacancy"