Ralph Nader: A Cover for Corporatism in Scalia’s “Originalism”
Ralph Nader says Scalia interpreted the constitution hypocritically as he extended the bill of rights from persons to corporations
PAUL JAY, SENIOR EDITOR, TRNN: Welcome to the Real News Network. I’m Paul Jay.
After the death of Antonin Scalia, newspaper editorials and articles, opinion pieces, many praised his integrity, his judicial wisdom, his legal theory. Yes, he may have represented the right wing, but he did so with a consistent intellectual logic that added to the discourse and overall knowledge of the court. Well, his theory of originalism, that is, a theory that says laws should be interpreted based on the U.S. Constitution as envisioned by the authors of that Constitution, or what a normal person at the time of the writing of the Constitution would have considered a correct way to interpret it, and that’s how it should be interpreted now.
So was Justice Scalia a defender of a consistent view of the U.S. Constitution or not? Now joining us to discuss Scalia and what he represents in terms of legal thought is Ralph Nader. Ralph is the renowned political activist and attorney, an auto safety reformer, a consumer advocate, an author. He ran as the presidential candidate for the Green Party in the year 2000. He also ran as an Independent candidate in 2004 and 2008, and he’s an often and favorite guest on the Real News. Thanks very much for joining us.
RALPH NADER: Thank you very much, Paul.
JAY: So we’re going to do a couple of, maybe more than one segment on Scalia. But let’s start with this theory of originalism. And Scalia, as a legal mind, a scholar, someone maybe a lot of people didn’t agree with but at least he was good for the court and so on. What is this theory of originalism, and how did it really impact decisions of the court?
NADER: Well, originalism means that if you’re a judge who believes in it on the Supreme Court or other courts, you interpret cases brought before you according to the text of the Constitution, and the way the words in the Constitution were meant to be understood at that time by the framers and the people living in the 18th century in the United States.
Now, why would anybody make a big deal out of this if you’re a judge? Because Scalia wanted to insulate the meaning of the Constitution from being twisted, interpreted, according to the political whims, the ideologies, or the personal values of judges or politicians. So he saw it as a way of preserving the integrity of the Constitution from being interpreted in any way that any majority at any given time in our history wanted it to be interpreted.
Now, that sounds very good, except that Scalia and others on the court, the five Republicans, brought to the court corporatist values. They brought to the court elitist values. And they couldn’t separate themselves from those values the way Scalia would lead us to believe. For example, he said he didn’t want nine unelected lawyers on the Supreme Court to defy the popular will, and to defy legislation as was enacted by the people’s legislators. Well, when it came to selecting George W. Bush in 2000, what happened? Scalia led the way for a 5-4 majority to prohibit the Florida Supreme Court’s ongoing order of a full state recount in the 2000 election.
So here you not only override state’s rights, which certainly is part of originalism, respecting state’s rights in our Constitution, but you defy the popular will, which means to have a more accurate count of the votes in Florida. And so he selected with four others in the most blatant political decision in Supreme Court history, that was so intellectually thin it’s surprising that Scalia wouldn’t have at least beefed it up a bit, the most politically driven decision in American history, that completely defied any Constitutional semblance of due process and respecting state’s rights. In this case, the order of the Florida Supreme Court. They blocked it in midstream before it was completed.
Now, why did they do that? Well, who nominated all those five? The Republicans. The Republican president. So there’s this inconsistency. And I might say that there’s some leading Conservative jurors and academics who have taken Justice Scalia to task for his gross inconsistencies. One of them was the leading Conservative jurist Richard Posner, who’s on the Circuit Court of Appeals out of Chicago. Writes a book every year, very well known philosopher of the law, as well as a judge. And he wrote an article on the inconsistencies of Justice Scalia in rather sharp terms. And this Professor Epstein took him apart on Scalia’s refusal to give taxpayers standing to sue to challenge government corruption, and the government violations of the law. Which means, you know, if there’s no standing to sue that means nobody can sue the Pentagon or the Department of the Treasury, or the Department of Agriculture, except the Attorney General of the United States. None of us have any standing to get into court and argue it on the merits. We’re thrown out the minute we file the case. It’s called No Standing to Sue.
And Epstein took–Epstein took Scalia to serious task, saying how could this be a reflection of the Constitution as it was written? The Constitution is premised on the sovereignty of the people, it starts with, We the People, in the preamble, not We the Corporation.
JAY: And isn’t that another, another one of his use of this, when some argue–I guess you would, for political and his own interests of his allies, treating corporations as people, extending Bill of Rights protection to corporations.
NADER: Yes, exactly. That’s the only time I had a conversation, a personal conversation with Justice Scalia, that in 2006 Robert Richmond of Public Citizen working with us at the time and I sent him a letter basically saying, you’re an originalist. You go back to the text of the Constitution, there’s nothing mentioning corporations or companies in the Constitution. The word doesn’t even appear in the Constitution. All that appears is the word person. And it was a rogue interpretation of an 1886 case, the Santa Clara case against a railroad, where not–the court didn’t even make the decision. It didn’t even discuss it. It was a railroad, ex-railroad lawyer who was the scribe that would jot down the decision those days with a quill pen who actually wrote in the head notes, they were called, summarizing the case, that the case stands for giving equal protection to this railroad under the 14th Amendment, which only mentioned the word ‘person’ or ‘persons’.
And so we asked Justice Scalia, how could he square going back to 1787 and the original text as amended, which has no mention of corporate personhood, no mention of corporations getting the same rights as persons, that the word ‘person’ clearly meant to the framers of our Constitution a human being, not an [official] entity called a corporation, with all kinds of privileges and immunities that real human beings could never accrete to themselves, like creating their own parents, their own holding companies to evade certain laws, or like having five thousand subsidiaries in some tax haven for tax evasion purposes.
JAY: You get to limit your liability because you’re a corporation, except then you get all the privileges of being an individual that can’t limit their liability.
NADER: That’s right. And when corporations have equal rights as human beings, that is, when they’re treated as persons under this doctrine of corporate personhood which Justice Scalia adhered to, then you cannot treat corporations differently under equal protection that you treat human beings. So that’s why the Supreme Court opposed prohibition of advertising by tobacco companies. Tobacco companies have a First Amendment right to speak. You can regulate it modestly, but you can’t prohibit it, or you can’t strictly require them to put lurid but accurate pictures on their pack of cigarettes.
So he’s inconsistent there. But he is very consistent in terms of his corporatist philosophy, that he filters through this philosophy of originalism. Now, on his behalf, number one, he makes you think. He has very, very granular arguments, and he makes people who disagree with him think. That’s good. Number two, he’s not afraid of a debate. He goes all over. He went all over law schools and public forums, was willing to debate with his opponents in ways no Supreme Court justice ever dared to do, whether out of judicial decorum or out of personal inhibition. [Inaud.] so that’s plus two.
And plus three, look, he called me back, and he wanted to discuss the letter. And he said–.
JAY: What did he–what did he say?
NADER: And he said, well, a strict–. Yeah. He said, a strict corporate personhood case hasn’t come before the court while I was on it, he said. So I haven’t researched what my originalist doctrine would do to apply to corporate personhood.
JAY: What happened when–when Citizens United came after that, so then what?
NADER: Of course. But they wouldn’t have been. He–yes. He voted for giving corporations the right, overruling an important Supreme Court precedent, the right for unlimited contributions for or against any political candidate, local state [nationals]. But he was talking about a more strict, fewer corporate personhood case. And he confessed to me. He said, I haven’t researched it. When it comes to me, I’ll do the research and I’ll decide. Then he added something very interesting. He implied that he thought Social Security was unconstitutional. But it was so woven into the fabric of socioeconomic life in America that if it came before him, he would not declare it unconstitutional. It’s too embedded in our political economy. And he implied that corporate personhood is too embedded in the whole business law of our economy to actually overturn.
But look, he had a conversation. That couldn’t happen with Justice Kagan, or Justice Breyer. They would never call back. I mean, we invited the justices to come for opening day for the first law museum in the world. The American Museum of Tort Law, Tort law being the law of wrongful injury, in Connecticut. And none of them replied, except Justice Ginsburg, saying she had just come back from a very extensive trip in the far East, and the Spring court was opening in October and she didn’t have the time, but she wished us luck.
So there are some positives about Justice Scalia that should be remembered.
JAY: But the point, I think–I take your point on there’s some positives. But the point is, political expediency often trumped–no Trump pun intended. It’s hard to say that word now without having to say something about it. That even on, even on the Bush-Gore Florida vote, it was sort of justified later. I believe there’s quotes from Scalia and some of the others that voted to elect President Bush that they did it mostly because it would be good for the country, and that it wasn’t a strict Constitutionalist argument.
NADER: No, of course, it was extremely thin, ridiculed by many law review articles on that basis. It was a political decision by the Supreme Court, which is not supposed to make political decisions.
But you know, you’ve got to admit, Paul, that he brings his corporatist philosophy to his cases, but over the years people who are liberal justices, they brought their philosophy. It’s not going to be stopped. We ought to recognize it for what it is. That’s why when they question candidates for the Supreme Court it’s absurd for the candidates to say they’re just going to measure up the law with the facts, and decide objectively, without injecting political values. That’s what Senator–that’s what Chief Justice Roberts said when he was being examined by the Senate during his nomination process. That’s a joke. There’s no way you’re going to separate people’s personal values, political inclinations, from their decisions. You just hope that they will respect the accuracy of the facts, and recognize that the ultimate purpose of all law is justice. That’s what it’s all about. Justice.
And you can’t take that out of a literal interpretation of a document in 1786 where the words are often ambiguous, due process is inherently a tremendously important but ambiguous word throughout history. There was nothing about abortion, there was nothing about assisted suicide, as Justice Scalia pointed out not long ago, which is why he thinks it’s wrong to say that the Constitution recognizes the right of abortion or a right of privacy, or a right of assisted suicide. He thinks that’s for the legislature to decide, not for the courts.
JAY: Okay. In the next segment we’re going to talk a little bit about the fight over whether President Obama will be able to nominate a new member of the Supreme Court, what’s at stake, and a little more about what is the division between the so-called liberals and the so-called Conservatives on the court, and what does that represent in terms of the historical trends that are pushing the various political forces within the American elite? So join us for Ralph Nader part two on the Real News Network.
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