When you've got the facts on your side argue the facts. When you have the law on your side argue the law. When you have neither pound the table. It's an old lawyer's joke whose punch line isn't so funny when the lawyer doing the pounding is an Associate Justice of the United States Supreme Court and the table being pounded is the bench of the highest court in the land.
But that's what happened at the Supreme Court earlier this week in what Washington Post columnist Dana Milbank described as "an extraordinary display of judicial distemper" -- "more campaign speech than legal opinion" - as Antonin Scalia did what Scalia usually does when things don't go his way: he threw a temper tantrum.
In his scathing dissent in United States v. Arizona, where a 5-3 Court majority struck down that state's infamous "papers please" immigration statute, Scalia put aside the law and launched into a highly-partisan, ad hominem, rant against the Obama administration over policies, such as the presidential directive on the DREAM Act, totally unrelated to the issues before the Court.
According to Milbank, Scalia thundered that the Obama administration "desperately wants to avoid upsetting foreign powers;" that it was acting with "willful blindness or deliberate inattention" to Arizona's illegal immigrants; that the majority's opinion "boggles the mind;" and that the states are "at the mercy of the Federal Executive's refusal to enforce the nation's immigration laws."
Salon's Nathan Pippenger added that Scalia offered "plenty of FOX News-ready invective" about Arizona residents who "feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy."
As Scalia's stunned audience listened to what Pippenger described as Scalia's "bellowing, bullying and bombastic" screed, the Justice came off sounding like some crazed neo-Confederate re-enactor reminiscing about the Lost Southern Cause and "the jealousy of the states with regard to their sovereignty."
Scalia also made the astonishing claim, as Pippenger notes, that had the Court issued its decision in the 1780s, the United States might never have happened at all since no state would have been willing to enter the Union under the conditions set by the Court.
Commentators have properly scolded Scalia for displaying an utter lack of judicial temperament, which has once again compromised the Court's standing with the public.
Writing in the New Republic, Paul Campos called Scalia "an increasingly intolerant and intolerable blowhard: a pompous celebrant of his own virtue and rectitude, a purveyor of intemperate jeremiads against the degeneracy of the age, and now an author of hysterical diatribes against foreign invaders, who threaten all that is holy."
Scalia's dissent in the Arizona case reads as if it were written "by a man who obviously no longer cares that he sounds increasingly like a right-wing talk radio host rather than a justice of the Supreme Court."
His dissents, says Campos, are also starting to read "more like hastily drafted blog posts than sober judicial opinions."
In short, Scalia is just being Scalia. The controversial Justice has always been a right wing ideologue who seems to gain a perverse delight in defying traditional norms and conventions designed to maintain the Court's dignity and reputation as, in Chief Justice Roberts' words, an impartial umpire calling balls and strikes.
Scalia's boorishness is legendary. He's the judge, after all, who answers critics of Bush v. Gore with "get over it." He's the one who thumbed his nose at the impropriety of duck hunting with Dick Cheney just days before the Court was scheduled to take up a case involving the former Vice President as a principal player.
Scalia and Justice Clarence Thomas are the pair who don't seem to care what others think when they closet themselves at pricy conferences put on by the very same business tycoons who profit from the Court's ruling in Citizens United. Scalia was also the junior Justice who thought it okay to "lash out" at the more senior and experienced Sandra Day O'Connor when she failed to give Scalia his all-important fifth vote in a Webster case that might have "left Roe v. Wade a hollow shell," deeming O'Connor's position 'irrational' and not to be "taken seriously."
With opinion surveys showing respect for the Supreme Court at an all-time low (just 44% of Americans hold a favorable view of the High Court) Campos said Scalia's partisan outbursts are a serious problem as the Court "continues to devolve into an institution dominated by cranky senior citizens who are harder to get rid of than the longest-serving members of the old Soviet politburo."
Scalia's behavior goes way beyond bad manners and reflects exactly the kind of society he wants to inculcate, one where unaccountable autocrats rule the day -- identical, in fact, to the governing model Scalia's own Catholic Church hopes to replicate if it can.
In his own way, I'm convinced Scalia would like to see the country governed just like the Catholic Church of his pre-Vatican II dreams while he and the bishops win back the faith and trust of the followers they've lost through brute force and intimidation, and by showing the unlettered masses who's boss.
I've long maintained that one cannot understand the behavior of the current conservative Court majority without also appreciating its affinity for a traditional hierarchy that is an indelible hallmark of the autocratic Catholicism to which all five members of this right wing majority are devoted.
Both the Catholic bishops and the conservative Catholic members of the Court, after all, are attempting to resuscitate a discredited and disgraced elite and restore it to power.
In the Court's case, conservatives are trying to rescue the wealthy oligarchy that caused the financial collapse of 2008 in the first place. That is the theme that unites three Court decisions: permit the wealthy to make unlimited campaign donations; bless voter ID laws meant to suppress the Democratic vote; create new obstacles to make it more difficult for labor unions to support candidates and causes on the other side.
For the Catholic leadership, this means a more rigid insistence on obedience and orthodoxy at the precise moment the hierarchy's moral authority with the faithful is least credible.
Just like Scalia and his conservative Court brethren, the Catholic hierarchy has responded to its own credibility gap with the public in the only way authoritarian autocrats know how: By flexing their muscles and doubling down on their pugnacity as the bishops go out of their way to pick fights with the President on birth control while putting American nuns on report for failing to take their side.
Like Scalia's intemperate outburst from the bench, the screeching manifestos against liberals that Catholic bishops now distribute at mass exhibit a tone reminiscent more of political handbills found nailed to trees than the measured communications you might expect from doctors of the Church. And for students of mass hysteria, I highly recommend the sulfurous letters banged out by the Catholic hierarchy whose rhetoric on birth control and religious "liberty" reeks of the scorched remains of Christian martyrs who've been roasted at the stake.
Atlantic magazine's James Fallows says he normally tries to shy away from "apocalyptic readings of the American predicament." And yet, he says, when you connect the dots from Bush v. Gore, through Citizens United, to a likely defeat for Obamacare -- and combine it with ongoing efforts in Florida and elsewhere to prevent Democratic voters from going to the polls, as well as the unprecedented abuse of the filibuster since Obama was elected -- what you're left with is a picture of "a kind of long-term coup."
Underscoring that point, says Fallows, is a Bloomberg poll of 21 constitutional scholars in which 19 of them believed the individual mandate is constitutional but only eight said the Supreme Court will rule that way.
"How would you characterize a legal system that knowledgeable observers assume will not follow the law and instead will advance a particular party-faction agenda?" asks Fallows. "That's how we used to talk about the Chinese courts when I was living there. Now it's how law professors are describing the Supreme Court of the John Roberts era."
Chris Hayes, in his wonderful new book Twilight of the Elites: America After Meritocracy, talks about a "crisis of authority" in which America's governing elites are no longer trusted because they've been tried and found wanting.
I think the rot goes deeper, to a "crisis of legitimacy."
Ed Schultz hinted at just such a crisis on his MSNBC show last night when he opened by pulling out William Safire's Political Dictionary and defining for his audience the difference between "democracy," "oligarchy" and "plutocracy."
Schultz's poli-sci 101 lesson reminded me of another time a prominent American journalist felt compelled to instruct his audience on the fundamentals of political societies and why theirs was in peril.
Writing in The Good Society two years before Hitler's Panzers overran Poland in September 1939, thus sparking World War II, Walter Lippmann said western liberal democracies were endangered by political movements of both the left and right "engaged in an indecisive and therefore incessant struggle for supremacy" and "unlimited authority."
A limit on power is what separates civilized societies from barbarian ones, says Lippmann, since only in civilized societies is power, however it is exercised and in whatever arena, duly constituted and accountable.
The idea that arbitrary power can be exercised at the willful discretion of any single group or individual "is alien to the very conception of a civilized society," said Lippmann.
A monopoly on power "is the legalism of the barbarian and the instinctive political philosophy of all who have not been disciplined to, or are in reaction against, the uses of civilization," wrote Lippmann. "For every man, until he has been taught differently, is predisposed to believe that what he wills should have the force of law."
The world was nearly torn apart in the middle decades of the 20th century by such men, just as Lippmann foretold, for while fascists and communists might have had their differences, and pursued very different worldviews, they both sought absolute power to achieve them.
"The struggle to determine who shall exercise unlimited power is the turbulence of the modern world," wrote Lippmann as the clouds of war gathered over Europe in 1937.
"One man's promises are as good as another's. Power controlled by guesses about the future, not rules of law in the present, is arbitrary," wrote Lippmann, pointing to the "radical lawlessness of the contending factions" and warning his audience not to be misled by the fact that some of these factions "employ lawyers, or use the machinery of the state, or enact duly engrossed statues and are careful to act in the forms of law."
For there is such a thing "as lawless legality," said Lippmann, which "is to be found where men deny that in making or interpreting law they are bound by the spirit of law."
Where the forms of law are observed, but not its limiting spirit, Lippmann says there exists no fundamental difference between "the lawyers who hold that property may be administered as if it were under the sole and despotic dominion of its possessors; the democrats who hold that the will of a majority must be unobstructed; the nationalists who believe that states are no more bound by the term of a treaty than by the words of a compliment; and the dictators who claim the right to dispose of their subjects."
For each of these groups in its own way "contends that his party has an indefeasible right to the exercise of power," said Lippmann.
Echoing the distinction between the forms and the spirit of law, James Fallows reminds us that liberal democracies depend on rules -- but also on norms. And these norms, he says, are based "on the assumption that you'll go so far, but no further, to advance your political ends." Or, as Lippmann might have put it, arbitrary power, exercised at the willful discretion of any particular group, "is alien to the very conception of a civilized society."
Conservative administrations in the past have nominated conservative Justices, says Fallows. But none have been like the "radical partisans" who now constitute the five-member conservative Catholic majority of the Roberts Court -- one that "overthrows precedent to get to the party-politics result they want" and acts with its own papal infallibility to empower the kind of oligarchic hierarchy we associate more with the Catholic Church than the American Republic.
However brilliant Antonin Scalia may be, his thuggish outbursts from the bench and his petulant, adolescent contempt for accepted norms of behavior when things don't go his way mark him out to be one of Lippmann's uncivilized primitives - and just like the autocrats he champions.