During a speech at Wesleyan University last night, Supreme Court Justice Antonin Scalia offered a strange revision of the time he joined with four of his conservative colleagues to make George W. Bush president:

At the end of the speech, Scalia took questions from the audience. One person asked about the Bush-Gore case, where the Supreme Court had to determine the winner of the election.

“Get over it,” Scalia said of the controversy surrounding it, to laughter from the audience.“

Scalia reminded the audience it was Gore who took the election to court, and the election was going to be decided in a court anyway—either the Florida Supreme Court or the U.S. Supreme Court.

It was a long time ago, people forget…It was a 7-2 decision. It wasn’t even close,” he said.

Bush v. Gore was not a 7-2 decision — and indeed, Scalia could tell this is true by counting all four of the dissenting opinions in that case. Although it is true that the four dissenters divided on how the Florida recount should proceed — two believed there should be a statewide recount of all Florida voters while two others believed a narrower recount would be acceptable — not one of the Court’s four moderates agreed with Scalia that the winner of the 2000 presidential election should effectively be chosen by five most conservative members of the Supreme Court of the United States.

Earlier this year, Tea Party Sen. Mike Lee (R-UT) announced that he would oppose each of President Obama’s nominees in retaliation for the fact that Lee believed the president’s recent recess appointments to be unconstitutional. Lee also believes that national child labor laws, Social Security, Medicare, FEMA, food stamps, the FDA, and income assistance for the poor are unconstitutional.

Regrettably, Lee’s fellow Tea Partier Sen. Jim DeMint (R-SC) has now decided to follow Lee’s lead:

DeMint, who voted last fall for two Obama judicial choices from South Carolina, said he’s now rejecting all of the president’s nominees to protest his winter recess appointments of four controversial nominees to avoid GOP opposition.

“President Obama has shown a complete disdain for the people’s elected representatives and our duty to advise and consent on nominations,” DeMint told McClatchy.

“Unless he revokes his unprecedented recess appointments that defied the constitutional role of Congress, I don’t intend to support any of his judicial nominees this year,” DeMint said.

Needless to say, Lee and DeMint are wrong about the constitutionality of the president’s recess appointments. They and many of their fellow congressional Republicans have argued that the Senate can defeat the president’s recess appointments power by having a single senator hit the Senate’s gavel twice every three days (this is not an exaggeration). Yet, as two of President George W. Bush’s top constitutional advisors explained in 2010, the question of whether the president can make recess appointments does not turn on whether the Senate engages in some empty formality, rather, “the question ‘is whether in a practical sense the Senate is in session so that its advice and consent can be obtained.’”

Because the Senate was out of town and conducting no business when the president named his recent recess appointments, there is no good reason to doubt their constitutionality.

The United States Court of Appeals for the Ninth Circuit handed down an opinion in a truly tragic case yesterday involving a mentally ill man named Eric Vogel who broke into another person’s home and yelled at police to kill him while also demanding to speak with the President of the United States. Vogel was tossed in a jail run by Sheriff Joe Arpaio, the Arizona sheriff currently under DOJ investigation for widespread legal violations, where he was ordered to wear the pink underwear Arpaio routinely requires inmates to don. After Vogel refused to do so, he was held down by four officers while a fifth stripped him naked and forced the pink undergarments on him. Vogel died about a week later, allegedly because the stress caused by this incident and his schizophrenia caused his heart to give out.

In an opinion by Reagan-appointed Judge John Noonan, the Ninth Circuit did not simply revive a lawsuit brought by Vogel’s survivors against Arpaio, it also suggested that Arpaio’s policy of choosing underwear intended to demean his inmates violates the Constitution:

When a color of such symbolic significance is selected for jail underwear, it is difficult to believe that the choice of color was random. The County offers no penalogical reason, indeed no explanation whatsoever for its jail’s odd choice. Given the cultural context, it is a fair inference that the color is chosen to symbolize a loss of masculine identity and power, to stigmatize the male prisoners as feminine. . . .

As the Supreme Court has explained:

if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to “punishment.” Conversely, if a restriction or condition is not reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.

Unexplained and undefended, the dress-out in pink appears to be punishment without legal justification.

Because the question of the underwear’s constitutionality was not raised in the trial court, the Ninth Circuit did not hold outright that the pink garments are illegal. Nevertheless, they strongly hinted that the lower court should do so when it takes up the case again.