The extreme conservative judicial activism in overturning the Voting Rights Act clashes violently with conventional conservative rhetoric opposing the DOMA decision. That rhetoric is simply a lie.
July 1, 2013

“We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.” – Antonin Scalia, dissent in US v. Windsor.

[Self-Editor's Note: Do Republicans (or conservatives) lie more than Democrats (or liberals) do? Several surveys of fact-checker records—mostly PolitiFact—strongly suggest that they do. In early June, the Columbia Journalism Review ran a story occasioned by the most recent such study, finding that Republican statements were three times more likely to earn the “pants on fire” rating than Democratic statements. But CJR gave significant attention to the idea that the data can't be trusted, that it might reflect selection bias by fact-checkers. There is a valid point here, of course: fact-checkers aren't doing social science. They aren't doing random sampling.

But what CJR never considered was the possibility that fact-checkers might actually under-represent just how mendacious Republicans—and conservatives more generally—really are. After all, there is The Republican War on Science but nothing remotely similar on the Democratic side. I was going to weigh in before Netroots Nation caught up with me. And then came the final Supreme Court decisions of the session, which shifted my focus dramatically from conservatives and science to conservatives and the law.]

The above quote from Antonin Scalia would be utterly unremarkable, if it had not appeared just one day after he took the diametrically opposite stance as one of five justices striking down Section 4 of the Voting Rights Act in Shelby County vs. Holder. Of course, Scalia has been saying this sort of thing for decades now (which is why I called it “utter unremarkable”); and, of course, he's been ignoring his own words whenever it suits him; and, of course, America's political class has been ignoring, excusing, or minimizing his hypocrisy for decades as well.

But Scalia wasn't just being hypocritical. He was, quite blatantly, lying. If he actually believed what he claimed to believe in Windsor, then he never would have joined the decision to strike down the Voting Rights Act in Holder. To the contrary, he would have denounced John Roberts' opinion with venomous glee. To absolutely no one's surprise, he did not. Because everybody knows he was lying in his Windsor dissent. Everybody knows he's been lying for decades.

If Scalia were a defendant, a plaintiff, or a witness, we would call what he did perjury. But what Scalia did was far worse than that: He didn't inject falsehood into the input side of the judicial process, where it might or might not affect the eventual outcome — he injected falsehood into the output side, where it was absolutely guaranteed to affect the outcome. What's more, it wasn't just Scalia, and it wasn't just this one time. This was only the tip of the iceberg — one iceberg among a constant flow of them.

Responding to the Shelby County decision, Caroline Fredrickson, president of the American Constitution Society for Law and Policy, took aim squarely at two other prominent conservative principles lies. “So much for ‘originalism’ and ‘strict construction,’” Fredrickson said. “The Supreme Court’s opinion in the Shelby County voting rights case is staggering and appalling in its disdain for the words and meaning of the Constitution – not to mention protection of the hallowed right to vote.” In particular, she pointed out, “Both the 14th and 15th Amendments state clearly that ‘Congress shall have the power to enforce’ voting rights and equal protection. Time and time again, Congress has done so by reaffirming overwhelmingly the Voting Rights Act, including Sections 4 and 5; the last vote was a combined 488-33 or 94 percent of Congress.” (The Senate vote in 2006 was 98-0.). “But five of the Court’s justices have chosen to ignore the Constitution and Congress and substitute their own views for those granted the power in the Constitution. For jurists who allege to support judicial restraint, it’s hard to imagine a more activist (and disingenuous) decision than today’s.”

Fredetickson is absolutely correct. The three great pillars of post-Warren judicial conservatism — originalism, strict construction and judicial restraint — are all fundamentally violated by the Shelby County decision. Yet all and only the conservative justices on the court joined in that decision. In one fell stroke, they clearly revealed that the foundation of their “judicial philosophy” was nothing but a pack of lies.

And why shouldn't they? After all, the primary purpose of post-Warren judicial conservatism is to roll back American law to a pre-Warren (indeed pre-Caroline Products) state, meaning, in large part, a pre-Brown v. Board of Education state. The pseudo-principles of judicial conservatism are but the means to an end, and when the end itself in sight, why quibble with tossing the means to the four winds? They have, after all, served their purpose. There is no further need of them.

This diary initiates a series exploring this idea, that post-Warren judicial conservatism is fundamentally and systematically dishonest, based on a variety of different sorts of lies, including, but not limited to its basic pseudo-principles of judicial restraint, orginalism, and strict constructionism. Its purpose is to serve conservative ends, that is, the perpetuation of closed and semi-closed social, economic and political hierarchies, against the basic American ideals of liberty, justice, equality and opportunity for all. Precisely because it is so nakedly anti-American at its core, it absolutely has to rely on systematic lying in order to endure.

Of course it should go without saying that my subject here is an organized political movement. I am not for a moment trying to argue that any and everyone who subscribes to it in whole or in part is thereby guilty of all its sins. Indeed, part of its perverse genius is precisely the depth and scope of its capacity to deceive — its true believers as much as, if not more than, anyone else. We are all of us — liberal, conservative, radical, whatever —inherently flawed, inherently limited human beings, using imperfect means to do our best to make our ways in the world. Despite our best efforts, we often deceive ourselves more than we deceive others, and by this mechanism, we may all be taken in by appealing arguments, organizations and movements, which, if fully informed, we would reject as repugnant to our basic morality.

There is powerful evidence that liberalism and conservatism have a strong underlying genetic component, and it would clearly be both absurd and self-defeating to argue that roughly a third of the human race is simply and irretrievably lost to reason. What I am arguing against is a particular historical development, a blind alley that American conservatism has gotten itself into. Part of conservatism's nature is that it is conservative — that is to say, traditionalist, distrustful of novelty, new ideas, new directions, all of which makes it even harder for conservatives to think their way out of a blind alley once they have gotten themselves into one. Nonetheless, this is what I believe that conservatives must do. And the sooner they realize it, the better. For that reason, the series of diaries is as much for the benefit of conservatives as conservatives as it is for the benefit of all of us. In that spirit, before proceeding further, I will devote the next diary in the series to a discussion of the tension between temperamental conservatism — which, like temperamental liberalism is an ineradicable part of human nature — and ideological conservatism, which repeatedly mires itself in lies, and which conservatives themselves would be better off without.

Conclusion: What Is To Come

In the diaries ahead, I have several areas I intend to explore — with room for surprises to emerge. The opinions and dissents in Shelby County v. Holder and Windsor v. US will certainly be important parts of my concern. But I want to establish a much broader historical framework for understanding what is going on in them, particularly in terms of truth vs. lies.

Temperamental vs. Ideological conservatism: The crux of the problem and the birthplace of lies. As already stated above, temperamental conservatism is a part of human nature, consisting in an aversion to change, a need for order, and trust for established authority, but it is arguably quite distinguishable from ideological conservatism which appears historically as a pathologized, even self-defeating form of temperamental conservatism. This difference is starkly illuminated by the different attitudes towards gay marriage and stability seen in Justice Kennedy's opinion for the Court, and in the other conservatives' dissent.

Lying in the confirmation process: Rehnquist, Thomas, Roberts and the “Borking” Myth. There is powerful evidence that both William Rehnquist and Clarence Thomas committed perjury in their confirmation hearings. Justice John Roberts was also deeply disingenuous in presenting himself as a non-ideological “umpire” simply “calling balls and strikes”. This pattern of mendacity is both obscured and even justified by the myth of “Borking”, a supposedly unfair process of holding conservative judicial nominees accountable for their palpably distasteful views. The “Borking” myth is properly understood as a symptom of conservative victimhood syndrome, a deeply embedded complex of lies that is far more general than just this one area of manifestation. What this part of the series is meant to establish is (1) That conservatives routinely rely on deception in order to gain or place their chosen representatives in positions of unaccountable lifetime power. (2) That conservatives feel perfectly entitled to use deception in order to gain positions of permanent, unilateral, anti-democratic power. (3) That conservatives have a variety of noxious and mendacious actions and beliefs to hide. (4) That conservatives have concocted a framework of false narratives to provide political cover and mobilize base support in promoting increasingly extremist judges and justices.

Lies as fundamental principles of conservative jurisprudence. Originalism, strict construction and judicial restraint are three supposed pillars of post-Warren judicial conservatism (along with states rights, aka “federalism”, itself a rather mendacious misnomer). But none of the three were taken seriously in Shelby County v. Holder—a case that was anything but the exception, but which clearly proved the rule. States rights, on the other hand, were elevated to a level unseen before with the invention of a new “constitutional principle” of “equal sovereignty” conjured out of thin air. Both Justice Ginsburg's dissent and a comparative look at some of the other spectacularly bad Supreme Court decisions of recent years—most notably Bush v. Gore and Citizens United—will provide vantage points for this exploration.

Lies rooted in the mythos of the conservative victimhood complex. In their dissents to the Windsor decision striking down DOMA, conservative justices tried to defend themselves from the stigma of bigotry—and, indeed, even sought to project the mantel of intolerance onto those they opposed. If it seems strange or unusual that such arguments should appear in Supreme Court opinions, that's only because it is. And yet, it's telling as well. The conservative victimhood complex lies at the very heart of ideological conservatism, and serves as the foundation for taking all manner of liberal and progressive arguments and using them to champion so-called “victims” whose victimhood ultimately consists of no longer being able to bully others quite as blatantly and successfully as in the “good old days”.

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