Charles Pierce calls Justice Clarence Thomas “the last Confederate.” I hadn’t realized the Justice has a “thing” about the 14th Amendment and thinks it has been incorrectly applied to deny states the power to trample on the rights of U.S. citizens.

Yes, that 14th Amendment. The one that ensured people of color were citizens and stopped the “Black Codes.” The one that has been the primary foundation of much civil rights case law. I started to call this blog post “Is Clarence Thomas trying to prove Cliven was right?” but decided it was a bit too incendiary. But were the Black Codes okay with you, Justice Thomas?

Now that the Court has said it is perfectly fine to expect citizens to sit through prayers to Jesus at a town council meeting — the Court’s three Jewish members and just one of the Catholics disagreed — it turns out Justice Thomas thinks the establishment clause shouldn’t be binding on the states at all. So let Louisiana make Christianity the state religion and tell the Buddhist public school student to suck it up.

I was not aware, however, that several years ago Justice Thomas wrote a dissenting opinion that said states have the right to determine qualifications of senators and representatives elected to the federal Congress.

Emphasizing that “the Federal Government’s powers are limited and enumerated,” Justice Thomas said that “the ultimate source of the Constitution’s authority is the consent of the people of each individual state, not the consent of the undifferentiated people of the nation as a whole.” Consequently, he said, the states retained the right to define the qualifications for membership in Congress beyond the age and residency requirements specified in the Constitution. Noting that the Constitution was “simply silent” on the question of the states’ power to set eligibility requirements for membership in Congress, Justice Thomas said the power fell to the states by default. The Federal Government and the states “face different default rules,” Justice Thomas said. “Where the Constitution is silent about the exercise of a particular power — that is, where the Constitution does not speak either expressly or by necessary implication — the Federal Government lacks that power and the states enjoy it.”

That has been the basic argument since the Constitutional Convention began, and every time that it has been litigated — in the debates over ratificaton of the Constitution, in the battle over the tariff with South Carolina, when Webster stood up to Hayne, when John C. Calhoun fashioned his doctrine of nullification out of it, when the nation tore out its own guts between 1860 and 1865, and, most recently, when “massive resistance” became the strategy through which white supremacy sought to break the civil rights movement — it has failed. It was the basis for the Reconstruction amendments, especially the 14th, which Thomas curiously elides in both his term-limits dissent and his government-prayer concurrence.

So sad.

Back in 2012 Charles Pierce wrote that Justice Antonin Scalia had started his retirement without bothering to leave the bench.

It’s been clear for some time now that he’s short-timing his job on the Supreme Court. The job bores him. All these inferior intellects coming before him. All those inferior intellects on the bench with him, now with some other Catholics who aren’t even as Catholic as he is, Scalia being the last living delegate who attended the Council of Trent. Inferior Catholics with inferior minds. What can a fellow do? He hung in there as long as he could, but he’s now bringing Not Giving A Fuck to an almost operatic level.

Scalia long gave up on paying lip service to impartiality or even consistency with his own past opinions.

It is plain now that Scalia simply doesn’t like the Affordable Care Act on its face. It has nothing to do with “originalism,” or the Commerce Clause, or anything else. He doesn’t think that the people who would benefit from the law deserve to have a law that benefits them. On Tuesday, he pursued the absurd “broccoli” analogy to the point where he sounded like a micro-rated evening-drive talk-show host from a dust-clotted station in southern Oklahoma. And today, apparently, he ran through every twist and turn in the act’s baroque political history in an attempt to discredit the law politically, rather than as a challenge to its constitutionality. (What in hell does the “Cornhusker Kickback” — yet another term of art that the Justice borrowed from the AM radio dial — have to do with the severability argument? Is Scalia seriously making the case that a banal political compromise within the negotiations from which bill eventually is produced can affect its ultimate constitutionality? Good luck ever getting anything passed if that’s the standard.) He’s really just a heckler at this point. If he can’t do any better than that, he’s right. Being on the court is a waste of his time.

Pierce speculates that Scalia is bored with being on the SCOTUS. Otherwise, why would a man at least bright enough to achieve this level of success in a legal career say things this stupid?

But now Scalia has made an blunder that observers are calling shocking and even unprecedented, misstating basic facts about one of his own past decisions.

The Court — although not Justice Scalia personally, I don’t think — issued a rewritten version of his dissent. Here’s the gist of the matter —

Scalia was dissenting from a 6-2 decision upholding the Environmental Protection Agency’s authority to regulate cross-state coal pollution. To help back up his judgment, he cited a 9-0 opinion he wrote in 2001 called Whitman v. American Trucking Association. But the EPA’s stance in that case was the exact opposite of what Scalia said it was in Tuesday’s opinion.

It’s not the first time a justice has erred. In July 2008, a majority opinion written by Justice Anthony Kennedy mischaracterized federal law when ruling unconstitutional the death penalty for raping a child. The opinion argued that the death penalty for such a crime existed in just six states and not on a federal level. That claim was false, as the New York Times reported afterward: Congress had passed a law two years earlier saying child rape was subject to the military death penalty. The Court subsequently issued a corrected opinion with a footnote noting the change, unlike this week when its correction came surreptitiously and without notice.

There is speculation Scalia’s clerks actually wrote the dissent and the justice didn’t bother to read it first, but if that’s the case it’s a good argument that Charles Pierce was right back in 2012 — Scalia is retired, and he just keeps acting out the Suppreme Court Justice thing for his own amusement.

But I wondered about senility awhile back, when he made his infamous “moral feelings” comment —

While speaking at Princeton University on Monday, U.S. Supreme Court Justice Antonin Scalia defended his legal writings after a gay student asked him “why he equates laws banning sodomy with those barring bestiality and murder,” according to the Associated Press.

“I don’t think it’s necessary, but I think it’s effective,” Scalia said. He added that legislative bodies can place bans on what they find to be immoral.

“It’s a form of argument that I thought you would have known, which is called the ‘reduction to the absurd,’” Scalia told Duncan Hosie, the freshman student who asked the question. “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?”

Beside the fact that this makes no sense, what do “moral feelings” have to do with law? But it’s been obvious for a while that Scalia doesn’t base his decisions on law, but on his own biases, and then he constructs a legal opinion to back up his biases. He pretty much admitted this in a Charlie Rose interview awhile back.

Corrupt, yes. A disgrace to the bench, yes. An opinionated blowhard, no question. But that doesn’t rule out the possibility of senility, too. No one else is saying this, but I’m saying it. It needs to be considered. Scalia is 78, I think, which means it is possible he could sit on the Court for a few more years, getting more and more demented, and causing more and more damage.