Panic Street Lawyer: Ides of Deconstruction, Part II

Sunday, 17 March 2013 06:00 AM Written by  Jay Hornack

20130317 placesetting photocom86526815 150After an introduction which used the device of an imaginary dinner conversation, I pick up last week’s story line with a post-Ides of March deconstruction of a legal opinion written by U.S. Supreme Court Associate Justice Antonin Scalia. The foodies who read both PSL parts will be disappointed with the absence of an imaginary menu – although I did discover the perfect cocktail for a Pisces such as Scalia to order before a March 15 meal: the Bloody Caesar.

I asked my two non-attorney dinner guests to share their life experiences after the 1960s. John Lewis, after serving as SNCC chair and a “Bloody Sunday” march leader, said that he eventually went into electoral politics. He began serving on Atlanta City Council in 1982, and then starting in 1986, he served as U.S. Representative of Georgia’s Fifth Congressional District.

Barry McGuire, after leaving The New Christy Minstels and recording “Eve of Destruction,” said that he had a drug problem before becoming a born-again Christian in 1971. Although he said he has left the music scene, he is touring in 2013 under the billing “Tripping the 60’s” (he also has a blog and an “on this day” feature on an online site bearing that name).

My third dinner guest answered that, after working as an associate at Jones Day in Cleveland, he eventually joined the judiciary. He was sworn in to the U.S. Court of Appeals for the D.C. Circuit in 1982, and then starting in 1986, he was sworn in to the U.S. Supreme Court. Thus, his most recent years of public service mirror the years of Representative Lewis (and as mentioned I last week, they also have the same daily horoscopes).

20130310wap johnlewis 150Rep. John Lewis (D-GA 5th) Gregory Smith/API was very aware of the fact that this third dinner guest had angered Representative Lewis with comments made from the bench during the February 27 Supreme Court oral argument in the case of Shelby County, Alabama v. Holder. Justice Scalia, in a question to the Solicitor General who was defending the constitutionality of Section 5 of the Voting Rights Act of 1965, stated that the ever-larger passage margin each time Congress reenacted the Act was “very likely attributable [to] the phenomenon of racial entitlement.” Representative Lewis stated in an MSNBC interview that he found it “unreal, unbelievable, almost shocking, for a member of the court to use certain language. I can see politicians and even members of Congress — but it is just appalling to me.”

It was clear that I was going to have to try to find some evidence of Justice Scalia racial sensitivity in order to prevent this dream dinner from turning into a nightmare. So I mentioned to Representative Lewis that, at another point in his Shelby County oral argument questioning, Justice Scalia told the Solicitor General: “This Court doesn't like to get involved in -- in racial questions such as this one. It's something that can be left -- left to Congress.” I could see from his facial expression that Representative Lewis did not find that statement reassuring.

The only additional evidence I had left to try and convince the representative that Justice Scalia’s vote in Shelby County was up for grabs was the justice’s dissenting opinion in the 2004 case of Tennessee v. Lane. The Court’s 5-4 decision held that Title II of the Americans with Disabilities Act, as it applied to cases implicating the right of access to state courts, constitutes a valid exercise of Congress’ authority to enforce the guarantees of the Fourteenth Amendment to the U.S. Constitution. Justice Scalia wrote separately to explain why he felt that “[r]equiring access for disabled persons to … public buildings cannot remotely be considered a means of “enforcing” the Fourteenth Amendment.” How could this opinion aid U.S. Attorney General Eric Holder in his attempt to get 5 justices to go his way in a 2013 voting rights case that in no way pertains to persons with disabilities? Please allow me to deconstruct.

20110922 antoninscalia 150Supreme Court Justice Antonin Scalia. APIn Justice Scalia’s effort to limit through judicial activism the ability of Congress to pass “prophylactic” legislation pursuant to §5 of the Fourteenth Amendment, he concedes that the Court upheld such legislation in a 1966 decision (South Carolina v. Katzenbach), where the law in question was passed pursuant to the similarly worded §2 of the Fifteenth Amendment. Justice Scalia found it significant that “the Fourteenth Amendment, unlike the Fifteenth, is not limited to denial of the franchise and not limited to the denial of other rights on the basis on the basis of race.” After coming up with his own activist test for judicially determining the constitutionality of Civil War Amendment legislation – based on the 1860 Webster’s Dictionary definition of “enforce” – Justice Scalia admits in Tennessee v. Lane that “the major impediment to the approach I have suggested is stare decisis.”

One of the precedents that Justice Scalia is most concerned with is South Carolina, a case which he says serves as the constitutional foundation for “many important and well-accepted measures, such as the Voting Rights Act…” He points out that what makes South Carolina unique from most of the Court’s other decisions on the constitutionality of civil rights legislation is that South Carolina “involved congressional measures that were directed exclusively against, or were used in the particular case to remedy, racial discrimination” (emphasis in original).

Justice Scalia concludes in Tennessee v. Lane that, “principally for reasons of stare decisis, I shall henceforth apply [a test more consistent with judicial restraint] to congressional measures to remedy racial discrimination by the States.” His only requirements for such measures are that they must (1) be imposed only upon states in which there has been “an identified history of relevant constitutional violations,” (2) be directed against the state actors “rather than the public at large,” and (3) not violate “other provisions of the Constitution.”

Of course, Justice Scalia refused to tell us at the imaginary dinner table how he voted in Shelby County, Alabama v. Holder. And, yes, Justice Scalia could announce later this term that Section 5 of the Voting Rights Act does not meet one of his Tennessee v. Lane requirements for legislation that remedies race discrimination (under some “equal sovereignty” violation theory, for example). But I think I gave Representative Lewis some basis for hope.

www.barrymcguire.comBarry McGuire www.barrymcguire.comAs “dinner” progressed to “dessert,” I decided to bring musician McGuire back into the conversation. I got him to tell the others that he updated the lyrics to his one “hit” and called it “Eve of Destruction 2012.” I think Representative Lewis may have secretly felt that McGuire’s removal of the “Selma, Alabama” reference was premature. And while I did not get the sense that Justice Scalia was a fan of either version of “Eve,” I did get a chuckle from him when I said that I thought he might be more fond of the more politically ambiguous “I’d Love to Change the World,” by Ten Years After. That 1971 song starts out with the late Alvin Lee singing:

Everywhere is freaks and hairies
Dykes and fairies, tell me where is sanity …


(Top image: Jupiterimages/Getty Images)

The Panic Street Lawyer is a personal opinion column by attorney Jay Hornack. Contact him right here at This email address is being protected from spambots. You need JavaScript enabled to view it. and follow Jay on Twitter: @panicstlawyer

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