October 24, 2006

Who's your favorite Supreme Court justice?

ATL is taking a poll. I forgot to guess who I thought would win before I looked at the results... at which point it seemed obvious. It's interesting how evenly spread the vote is, though, with the highest only getting 19%, and 6 of the 9 getting between 10 and 20%. Do you think most lawprofs have a favorite Supreme Court justice? I think they may but that it's not someone currently on the Court. My favorite justices tend to be favorites because I enjoy presenting their points of view in the classroom or because I like their writing style, not because I think they are getting more things right than the others.

ATL is also talking about reviving the term "Scalito," using it not in the original sense of mocking Alito as a Scalia clone, but to refer to the two as a pair when they make a joint appearance -- the way one refers to celebrity couples like Brangelina and Bennifer. (The first comment over there tries to make nicknames out of other judicial pairs.) Anyway, this Scalito entity appeared at a National Italian American Foundation the other day. Scalia talked about judicial independence and said: "You talk about independence as though it is unquestionably and unqualifiably a good thing. It may not be. It depends on what your courts are doing." And Alito seemed to have a problem with people writing about judges on the internet:
"This is not just like somebody handing out a leaflet in the past, where a small number of people can see this. This is available to the world. ... It changes what it means to be a judge. It certainly changes the attractiveness of a judicial career."
Hey, it's not my job to make your job feel cushy!

40 comments:

Simon said...

I think Alito's point is more that it's going to be harder to attract good men and women to the bench - even with the lure of life tenure - if those men and women have to go through an experience akin to walking on hot coals to be confirmed, and are going to be ruthlessly attacked and denigrated by bloggers who have not the faintest understanding of the issues in the case. Only a small minority of bloggers who discusses the courts are law profs and misc legal professionals. Now, whether he's right or not is an open debate, but it's surely not a minor point - Rehnquist spent a good chunk of time in his last decade making the same point in connection to judicial salaries.

Favorite Justice? I'll give you two guesses, but you're only going to need one. ;) But I doubt that anyone would guess my second-favorite writer on the Court.

Edward said...
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Edward said...

In one of Ann's threads last week, I called Scalia "a bilious little caricature of himself."

A few posters took offense at this remark, which I think is just a statement of fact about Scalia's reckless abandonment of what's usually refferred to as the judicial temperament.

None of his Supreme Court colleagues -- regardless of their ideological or philosophical leanings -- display such a disregard for the valuable notion of judicial temperament.

Well, I never knew that Scalia would be so helpful as to provide me with brand-new and irrefutable evidence that he is, indeed, "a bilious little caricature of himself."

The speech that he gave last Saturday is astoundingly bad. Everyone here should be sure to read news reports of it.

Scalia's disdain for the free press and its information-age equivalent, the internet, is deeply, deeply troubling.

Scalia takes pride in being able to discern the full and precise intent of our nation's founders on every issue. His judicial philosophy of "originalism" is based on the principle of constantly referencing what (he believes) the founders thought.

Well, I think Scalia should do a whole lot of new reading about the founders' opinions on the importance of a free press.

The founders clearly believed that, while untidy and rambunctious, a free press is the cornerstone of any democracy worthy of the name.

He should be ashamed of himself for insulting our nation's free press traditions.

If he thinks press coverage of court decisions is flawed, he could spend his time more profitably and honorably by trying to devise institutional reforms that would improve the interaction between the press and the courts.

MadisonMan said...
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MadisonMan said...

So, Edward, is Scalia then not your favorite justice? I can't tell.

I'm fond of Felix Frankfurter, just 'cause he has a funny name, and Sandra Day O'Connor because she was (is?) sensible. Or do I have to give a legal or logical reason for my liking them? Of the sitting Justices, the one I think would be the most interesting dinner companion -- that's how I'd choose favorite -- would be Souter. Some of the others would too dominate the conversation.

Dave said...

You mean ATL, not DTL, in your post...

chickenlittle said...

Roberts

Can't say exactly why, but at least I'm "for" somebody

Simon said...

Edward,
I have yet to see the full transcript posted. Unless or until that transcript becomes available, you are in the unfortunate position of attacking not Scalia's remarks, but a characterization of those remarks made by a news media that is bitterly hostile to Scalia and people who share his views. Last week, I posted a perfect example: a youtube video where a short snippet of Scalia's remarks at the ACLU were taken out of context and made to stand for the precise opposite of the point he was making. And likewise, we saw yesterday various Greenwald sock puppets stand the point of Ann's NYT op/ed on its head, either out of sheer intellectual incapacity to grasp the point, or wilful mischaracterization. So, no transcript, no credibility.

And in this case, it is even more ridiculous, because even the ACLU concedes that Scalia has mounted a strong defense of free speech rights - free speech is one of the areas where he has usually voted "their way."

You're free to hate Scalia and everything he stands for. But please, don't pretend as though it's in wide-eyed horror at something he's said at a conference. You just don't agree with his views on law or politics, and you don't like the way he expresses himself.

Edward said...

Scalia’s criticism of “judicial independence” is clearly a swipe at Justices Breyer and O’Connor, who have spent the last few weeks launching a national discussion on the role of the courts in our nation’s life.

The contrast between Scalia’s speech on Saturday and the recent speeches of Breyer and O’Connor illustrates why the former is on track to becoming a textbook case of how justices and judges should not behave.

Breyer and O’Connor were dignified, intellectually modest, restrained in their remarks, and cool-headed.

The hot-headed Scalia offers a perfect contrast to the judicial temperament displayed by Breyer and O’Connor.

Ann Althouse said...

Dave: Thanks. Corrected.

Jonathan said...

Thomas. How can it not be Thomas?

Fitz said...

My Favorite Justice would be Clarence Thomas. Both for his personal Biography/Stoic manner in which he has handled the savaging from the left & his single handed revival of natural law jurisprudence in Supreme Court opinion.
(and yes the two are interrelated – His approach represents the single biggest threat to liberal activism on the court, hence the savaging)

If we are discussing the disgusting recent “judicial independence” lectures by Breyer & O’Conner then I must quote George Orwell

Evil is done by little men in starched white shirts who never raise the tone of their voice”

Why don’t the “raise the tone of their voice” – they don’t have too. They are in a position of power were they can afford to look “level headed” and of “proper temperament”
I have watched those two Justices and their little charade of sticking up for judicial “independence” supposedly under attack. They conflate honest and important criticism with fringe threats of violence. They (feign? I cant tell..)Ignorance of their inflammatory stance/decisions as if these criticisms are not historically distinct. They use a bland tone and cast themselves as innocent victims in a dire threat to “judicial independence.” (read: we get to do whatever we want)
The truth is they are experiencing a belated and widespread attempt at balancing the Judicial arrogance and politicalization of the law that they and there predecessors have instigated, and continue to champion.

Goesh said...

It should be Janice Brown but that's another matter, so it is High Handed Clarence for me, though 'Tony Ducks' Scalia comes close. Any man who shoots quackers in marshy wetlands with Dick Cheney, doesn't get shot himself then refuses to recuse himself from some half-baked litigation coming from half-baked tree huggers is quite a stud in my books. Despite my groveling at their feet, they all need term limits imposed on them by the People.

Simon said...

Edward,

No transcript, no credibility. You're as bad as these Kos diarists who criticize the Military Commissions Act without even having read it.

Even assuming that he did say what you think he said (which I take to be, as it was reported here, that "[y]ou [can't] talk about independence as though it is unquestionably and unqualifiably a good thing ... It may not be. It depends on what your courts are doing ... The more your courts become policymakers, the less sense it makes to have them entirely independent") there are several ways to interpret those remarks. You are apparently interpreting it to mean that Scalia wants to impeach Justice Breyer. Another reasonable interpretation is that Scalia repeated a point he has made several times in recent months: that nonoriginalism and results-oriented judging will tend to make the public ask questions about whether judges should have life tenure, and why judges have the power of judicial review in the first place. You are doing PRECISELY what the detractors of Ann's NYT piece on judge Taylor did.

I certainly agree that Scalia offers the perfect contrast to O'Connor and Breyer. The difference, of course, is that I have a very, very low opinion of Justice O'Connor's minimalist, balance test-fixated jurisprudence, and anyone who wants to get a clear view of the difference between Scalia and Breyer in an afternoon should read A Matter of Interpretation back to back with Active Liberty, and seriously ask themselves the question: which of these books presents a workable theory, and which is a bunch of vapid nonsense?

Simon said...

Goesh said...
"they all need term limits imposed on them by the People."

Discussed recently at Prawfsblawg.

Edward said...

Simon: I don’t take my marching orders from the ACLU, and I wasn’t really passing judgment on Scalia’s court opinions in specific free-speech cases. And no, I haven’t yet read a transcript of Scalia’s remarks from this past Saturday. I don’t even know if a transcript will ever be made available.

Still, it doesn’t take a tremendous amount of complex information to know that the sentiment and thrust of Scalia’s remarks on Saturday displayed deep unease with the actual workings of a free press.

Scalia displayed even more unease with the internet, which will be the backbone of our economy, our political system, and our news media in the future.

Scalia is out of touch with the modern world, and that should be deeply troubling to everyone, regardless of party affiliation, because Scalia remains very powerful.

Fitz said...

"Scalia is out of touch with the modern world, and that should be deeply troubling to everyone, regardless of party affiliation. "

I swear Ed, your totally transparent. Were do you get this stuff?
Why don’t you just say…. I have an Ideological interest in portraying Justice Scalia (and like minded Jurists) as backward “Neanderthals” as per the classical leftist approach.

You don’t know what the man said. It sounds like his criticism of the Internet was in the context of attacks on the judiciary (no intermediating institutions) and where descriptive rather than proscriptive.

“Still, it doesn’t take a tremendous amount of complex information to know that the sentiment and thrust of Scalia’s remarks on Saturday displayed deep unease with the actual workings of a free press.”

Uh, yes it does “take a tremendous amount of complex information to know that the sentiment and thrust of Scalia’s remarks” Like perhaps reading his opinions on free speech & press issues. The man’s credentials are unassailable, he has ruled against flag burning laws as well as campaign finance regulations.

Its like your rummaging through the closet of your mind in search of any way to cast dispersions on a man you know nothing about. It hackney…and inaccurate, and hyperbolic.

Simon said...

Edward said...
"Simon ... I wasn’t really passing judgment on Scalia’s court opinions in specific free-speech cases."

Clearly. See, e.g., Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987) (Scalia, dissenting); Riley v. Nat. Fed. of Blind, 487 U.S. 781 (1988) (Scalia, concurring); Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) (Scalia, dissenting); R.A.V. v. St. Paul, 505 U.S. 377 (1992); Hill v. Colorado, 530 U.S. 703 (2000) (Scalia, dissenting); McConnell v. Federal Election Commission, 540 U.S. 93 (2003) (Scalia, dissenting). Cf. confirmation hearings at pp.51-2 ("[For the purposes of the First Amendment,] I define speech as any communicative activity. [Can it be nonverbal?] Yes. [Can it be nonverbal and also not written?] Yes. [Can it encompass physical actions?] Yes.") (response to questions by Senator Biden of Delaware).


"And no, I haven’t yet read a transcript of Scalia’s remarks from this past Saturday. I don’t even know if a transcript will ever be made available. Still, it doesn’t take a tremendous amount of complex information to know that the sentiment and thrust of Scalia’s remarks on Saturday displayed deep unease with the actual workings of a free press."

In other words, you have no idea what he said, but you're willing to take a guess based on your pre-existing hostility.


"Scalia displayed even more unease with the internet, which will be the backbone of our economy, our political system, and our news media in the future. Scalia is out of touch with the modern world, and that should be deeply troubling to everyone, regardless of party affiliation, because Scalia remains very powerful."

You have absolutely no basis for commenting on Scalia's views on the internet or how in touch he is with the modern world. Your scarcely have any basis for criticizing what he actually said this weekend, since by your own admission, you haven't read a transcript. Do you routinely comment on movies without having seen them? Do you read the dustjacket of a book and write a book review on the basis of the handpicked laudatory statements by other reviewers? I doubt it. Again, the bottom line is that you're hostile to Justice Scalia and to his views, and when you see information that relates to him, you slot that information neatly into your pre-determined view of him.

Edward said...

Fitz and Simon: You know, in their recent speeches, Breyer and O’Connor also worried about increasingly vitriolic criticism of judges. To deal with this problem, however, Breyer and O’Connor adopted a very different approach from that of Scalia.

Breyer and O’Connor engaged the American public in a high-level discourse on the role of the judiciary in our constitutional system. Their approach was almost philosophic, but without ever being arcane. They were also sensitive to the fact that public appreciation of the courts has fluctuated throughout American history.

Never once (that I’m aware of) did Breyer and O’Connor ever say anything critical about the free press or the internet per se, as bedrock institutions in our democracy.

Scalia did just the opposite. He severely criticized the actual channels of communication on which democracy depends, the free press and the internet. The conception of the judiciary implicit in his criticism was quite imperious and arrogant.

Bruce Hayden said...

My vote, as with several above, is for Clarence Thomas.

Simon said...

Edward said...
"Fitz and Simon: You know, in their recent speeches, Breyer and O’Connor also worried about increasingly vitriolic criticism of judges. To deal with this problem, however, Breyer and O’Connor adopted a very different approach from that of Scalia."

This is a preposterous statement. It is precisely the behavior - on the bench, not off of it - of judges like Breyer and O'Connor whch is driving the "increasingly vitriolic criticism of judges." Scalia's "approach" to the criticism of judicial is "don't do the kind of activism that people are complaining about." Which isn't to say that the right answer won't ever be controversial, to be sure, but it isn't decisions like Neder v. United States or AT&T Corp. v. Iowa Utilities Board that's getting everyone's blood boiling, it's decisions like Stenberg v. Carhart, Roper v. Simmons, Goodridge v. Dept. of Pub. Health and ACLU v. NSC.


"Never once (that I’m aware of) did Breyer and O’Connor ever say anything critical about the free press or the internet per se, as bedrock institutions in our democracy."

No, but their votes in campaign finance cases such as McConnell, supra, are a dagger aimed at the heart of the First Amendment. But you know, as long as they're bluff about it, instead of sounding all passionate like mean ol' Nino, right? It's far more important that they maintain the appearence of "judicial temperament" while eviscerating the first amendment than that they actually, you know, defend it.


"Scalia did just the opposite. He severely criticized the actual channels of communication on which democracy depends, the free press and the internet."

Again - you haven't read the transcript, a transcript which may or many not even exist, so you have no idea what he said, beyond the recollections, notes and ideological biases of reporters who may not like him any more than do you. No transcript, no credibility.

Doug H. said...

Is anyone else surprised by how well Souter is doing in the poll? I'm not criticizing him, but it seems like he's a lot less visible than others.

Fitz said...

Edward
– You keep repeating your criticism even when we supply evidence that’s its factually void. You make want Scalia to to have severely criticized the actual channels of communication on which democracy depends, the free press and the internet. But you have Zero evidence that

A.) He did
B.) He is disposed to such criticism by way of past opinion.

You have created a fiction for your own amusement. If you wish to assert something you need to back it up. Not merely re-assert it ad nausea. It makes it so much more persuasive for the listener.


Simon

{edwards qoute} "Scalia is out of touch with the modern world, and that should be deeply troubling to everyone, regardless of party affiliation, because Scalia remains very powerful."

Reminded me of the Romer v. Evans case When Scalia s dissent noted that
“To suggest, for example, that this constitutional amendment springs from nothing more than "`a bare . . . desire to harm a politically unpopular group,'" ante, at 13, quoting Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973), is nothing short of insulting. (It is also nothing short of preposterous to call "politically unpopular" a group which enjoys enormous influence in American media and politics, and which, as the trial court here noted, though composing no more than 4% of the population had the support of46% of the voters on Amendment 2, see App. to Pet. for Cert. C-18.)

It seems the Breyers and O’Conners live in the fantasy world of their own creation. I remember someone reading the majority opinion in Con-Law sitting the sections that painted the class as politically vulnerable, to which I responded (about the Justices) apparently they don’t have cable!
The class broke out laughing….and some young conservative read aloud that above aspect of Scalia’s dissent. (of which I was ignorant)

Edward said...

Fitz: I have absolutely no idea why you cited that passage from Scalia’s dissent in the Romer case. It certainly doesn’t refute my claim that Scalia is out of touch with the modern world.

Of course, Scalia’s dissent in Romer reveals a very wrong view of the political influence of gay people. His view is wrong both historically and in terms of the present day.

In fact, Scalia’s attitude in the passage that you cite seems to reek of prejudice and illogic. Unpopular minorities are often viewed by those prejudiced against them as having an excessive amount of influence over politics and culture. Unpopular minorities are often imagined to have an influence far out of proportion to what they “deserve.”

That kind of claim is a classic strategy of anti-Semitism, for example.

So, to return to the original point, Scalia’s recent comments about the internet show that he is out of touch with the modern world.

Other, equally wrong comments that he made in a dissenting opinion on gay rights in no way refute the charge that he is out of touch. If anything, Scalia’s dissent in Romer just shows that he is out of touch on issues other than the internet.

Simon said...

"So, to return to the original point, Scalia’s recent comments about the internet show that he is out of touch with the modern world."

You mean the recent comments that you have never seen in context in a transcript, and have yet to even cite in a reputable second-hand source?

The Philly Sentinel, for example, attributes the disparaging comments made about the internet at Saturday's Scalia/Alito appearence to Justice Alito, not Scalia, and it fails to include an actual quote.

And speaking of the WaPo, here's the soundbite they lifted from Scalia's speech:
""The press is never going to report judicial opinions accurately[,] ... [t]hey're just going to report, who is the plaintiff? Was that a nice little old lady? And who is the defendant? Was this, you know, some scuzzy guy? And who won? Was it the good guy that won or the bad guy? And that's all you're going to get in a press report, and you can't blame them, you can't blame them [the press]. Because nobody would read it if you went into the details of the law that the court has to resolve."

Well, that sounds pretty reasonable, right? He's not criticizing the media, he's saying that the business that the media are in is not conducive to detailed reporting of legal minutiae, and as a result, court reporting in the MSM will always be truncated. Scalia made the same point last year in a panel debate with Justices O'Connor and Breyer that was carried on CSPAN, in connection with the cameras in cout debate: that the news media will inevitably take only soundbites from the available coverage of the court, and even if they arne't trying to misrepresent the court, the nature of the industry and the format and the audience will ill-serve the accurate reporting of the law. Do you disagree with any of those points, Edward? When was the last time you saw CBS Evening News read an antitrust opinion - or even the syllabus - in its entirety, on the air?

So in point of fact, the more of Scalia's remarks that we see, the more reasonable it starts to appear, although the WaPo of course does its best to obscure the point; they preface the emminently reasonable forgoing quote with the following loaded paragraph: "Scalia expressed disdain for the news media and the general reading public, and suggested that together they condone inaccurate portrayals of federal judges and courts." That isn't at all what he did, if you read the quote, but that's sure they way that the WaPo want to spin it. Once you take away the false characterization of the WaPo - which has, on this evidence - now apparently given up on subtle bias and resorted to outright lies and character assasination - suddenly it starts to sound quite reasonable, doesn't it?

Bring your allegations back when you have a transcript, Edward. The problem you have is that you're asking us to accept from you - after your own admission to not having seen a transcript - an allegation (not even an actual quote, in fact!) that cuts at complete odds to twenty years of Scalia's jurisprudence. If you were saying that you read in the WaPo that Scalia doesn't think the Constitution protects abortion, then that might be one thing. But when you're making an allegation that is just totally out there, you need to provide some credible evidence, and the more out there the proposition, the stronger the evidence required.

Edward said...

OK, I’ve just read another news report on Scalia’s remarks from Saturday.

It seems clear now that Alito, not Scalia, made the comment about the internet.

You know, Scalia has no one to blame but himself if his comments are occasionally misinterpreted. He clearly has a distrustful attitude toward the media.

If his Saturday appearance had been televised, or if the participants had allowed transcripts to be made available immediately, there would be far less confusion now about what was said.

Nino and Sam (Scalito) are less media savvy than the duo of Sandra and Stephen (O’Breynor).

O’Breynor also seem to have much more judicial temperament, which is a tremendously important quality to me and lots of other Americans.

I just hope that this whole episode is not an indication of Scalia’s growing influence over the young and impressionable Sam Alito.

I don’t worry too much about that, though. As he usually does, Scalia will probably say something really insulting about Alito in the near future, and then he'll lose influence over his new colleague just like he has over the more senior justices.

Freeman Hunt said...

You know, Scalia has no one to blame but himself if his comments are occasionally misinterpreted.

Oh, good grief.

You're proved wrong and now that's somehow Scalia's fault.

Simon said...

Edward said...
"It seems clear now that Alito, not Scalia, made the comment about the internet. [But] [y]ou know, Scalia has no one to blame but himself if his comments are occasionally misinterpreted."

Damned right. No one to blame but himself. Caught red-handed "driving while conservative."

(And by the way - is it really clear that Alito made "the" comment about the internet? What comment? What were his exact words? In what context? That's just the problem, isn't it Edward: as you've just discovered in this thread, relying on media reports leads you into treacherous waters if you don't have a transcript to rely on. What makes you think the Sentinel report is any more accurate than the one you read before?)


"[Scalia] clearly has a distrustful attitude toward the media."

Well, gee - I can't imagine why. Might it have something to do with the kind of intentional distortion unmasked in my previous post? Might it have something to do with the very concern that he was expressing, that views will be taken out of context, either to fit into the media's preferred spin, or more commonly, innocently massaged beyond recognition to fit into the mass media's product? You may as well ask why I have a distrustful attitude towards the hungry-looking lioness stalking towards me while licking her lips and holding up a sign that says "I'm going to eat you."

Haven't you yet learned from this thread that you can't trust the media, Edward? The only thing you did wrong was to have a trustful attitude towards what you read in media reports, but they let you down! The realization of their misreporting has now forced you to make an embarrasing backpeddle (more about which anon)!


"If his Saturday appearance had been televised, or if the participants had allowed transcripts to be made available immediately, there would be far less confusion now about what was said."

Assuming that it was neither transcribed nor televised (and we don't know that), I agree entirely, but that is a red herring. Your evidence for alleging that the event was neither transcribed nor televised purely at the behest of Justices Scalia and/or Alito is...?

Moreover, Edward, you all of a sudden seem very coy about what was actually said. There is confusion about Scalia's "speech" now? You didn't seem terribly confused about what was said and by whom when you averred this morning that Scalia's speech "last Saturday is astoundingly bad," that he "should be ashamed of himself for insulting our nation's free press traditions," and that the speech provided you "with brand-new and irrefutable evidence that he is, indeed, 'a bilious little caricature of himself.'" Now, all of a sudden, as it becomes clear that you have been duped by an MSM spin on Scalia's remarks, what little case you might have had is rapidly unravelling, you offer a fallback position that there is "confusion" about the remarks?


"I just hope that this whole episode is not an indication of Scalia’s growing influence over the young and impressionable Sam Alito."

I'm sure the 56-year-old 16-year veteran of the Court of Appeals would love to hear himself described as "young and impressionable."

Edward said...

Simon: I was attempting some humor when I wrote that Alito is "young and impressionable."

You don't have a problem with humor, do you?

And there was a grain of truth in my joking. Alito is very new to the court, and I'm sure there are some shifting allegiances still going on there, what with the new additions of both Alito and Roberts.

Eric said...

Thomas? Who would like Thomas? Is this vote designed to pick the most amusing justice? Remember the Lopez dissent?

And Scalia!? Goodness. He's winning??? This is a travesty of the highest order. Professor, I think you need to do a better job of teaching our young attorneys!

The Jerk said...

Two problems Scalia are that (i) he's results-oriented, as anyone with a passing familiarity with his 11th Amendment opinions should know; and (2) he's constantly lambasting his colleagues for being results-oriented, making him a hypocrite.

Thomas' affinity for "natural law" jurisprudence is a detriment, not a virtue, as "natural law" simply expresses a particular set of policy preferences and is found nowhere in the text of the Constitution.

Revenant said...

Scalia is out of touch with the modern world, and that should be deeply troubling to everyone, regardless of party affiliation, because Scalia remains very powerful

Even if I believed it was true, it would only be "deeply troubling" to me if I thought the role of a judge required being in touch with the modern world. As I do not believe in reinterpretting laws based on popular whim, I do not see the necessity of Scalia being up to date on the latest societal trends.

I support gay rights. So does an increasing percentage of the American people. That does not mean those rights have magically appeared in a Constitution written and enacted by a bunch of 18th-century men who believed sodomites deserved to be treated as criminal deviants. If modern society believes gay rights should be enshrined in the Constitution then by all means, let us pass an amendment to that effect.

Simon said...
This comment has been removed by a blog administrator.
Simon said...

The Jerk said...
"Two problems Scalia are that (i) he's results-oriented, as anyone with a passing familiarity with his 11th Amendment opinions should know"

Well, first, you're wrong and he isn't, but while we're at it, since you're super-familiar with them -- you know, being someone with more than a passing familiarity with them -- perhaps you could name some of "his 11th Amendment opinions." You can confine yourself to the three or four most important examples that make your point.

(This is in poor faith, insofar as I'm not asking because I don't know, I'm asking because I have a decent side bet that says you don't know).

Fitz said...

The Jerk.

“Thomas' affinity for "natural law" jurisprudence is a detriment, not a virtue, as "natural law" simply expresses a particular set of policy preferences”

No more so than originalism, living constitutionalism, textualism or any other method of legal interpretation.


“and is found nowhere in the text of the Constitution.”
That was written by a bunch of natural law deists who operated under an English common law system predicated on Natural Law and Natural Rights.

Fitz said...

Edward

“Other, equally wrong comments that he made in a dissenting opinion on gay rights in no way refute the charge that he is out of touch. If anything, Scalia’s dissent in Romer just shows that he is out of touch on issues other than the internet.”

Apparently you’re out of touch with the law. Scalia’s comments were meant to illustrate that any interest group that can command such political influence (as is evident in the media) & democratic support (as is evident in the Amendments detractors support) is not “politically unpopular” in the sense of needing special federal judicial protections neither proffered in legislation nor precedent.

Regardless: My comments were clearly addressed to Simon and reminded me “who was out of touch” with reality.

Simon said...

Fitz,
I have to admit that, to some extent, I agree with "The Jerk" on the natural law point. If you're saying that the Constitution was written by a people deeply enmeshed in the common law, and that the common law therefore forms the background against which many of the Constitution's pronouncements must be considered (in some cases establishing certain implied provisions) then I agree entirely. See, e.g., Wilson v. Arkansas, 514 U.S. 927 (1995) (holding that the common-law "knock and announce" rule "forms a part of the reasonableness inquiry under the Fourth Amendment"); Kelo v. New London, 545 U.S. 469 (2005) (Thomas, dissenting). But if you're saying that the Constitution permits "natural law" to be used to give content to the Constitution, I am far more skeptical about that. See, e.g., R. Bork, THE TEMPTING OF AMERICA at p.66 (“I am far from denying that there is a natural law, but I do deny both that we have given judges the authority to enforce it and that judges have any greater access to that law than do the rest of us”); Troxel v.Granville, 530 U.S. 57 (2000) (Scalia, dissenting). I'm skeptical because it seems as if natural law is usually invoked - like purposivism - as a way to go around the text, rather than to resolve questions about where its animating spirit leads it.

LoafingOaf said...

Scalia is my favorite for two reasons.

First, because I enjoy reading his opinions the most, including when I disagree with him. He's clever and, compared with other justices, not boring.

Also, he came to speak at my law school in 2003 and, man, did he create a buzz. Some of the professors were itching to take him on, but when they attempted to they were left looking shocked at how he blasting back. For example, after defending his approach to interpretting the constition (he explained how he would've loved to rule against a flag burner but was handcuffed from doing so), he suddenly yelled across the auditorium (paraphrasing): "And by the way, professor, why don't you tell your students what YOUR philosophy is for interpretting the constitution!?" Well, I can't recreate the scene, but it was funny as hell to see a Supreme Court justice going off on big-egoed professors. And I enjoyed the strong defense he put forth for the drafters of the consitution.

I went to a law school in Cleveland that's dominated by leftists. Which I did't have a problem with as I liked most of my profs. It just was so cool to see him storm into that scene as a contrarian, blasting away, and clearly the smartest person in the room.

The Jerk said...

perhaps you could name some of "his 11th Amendment opinions."

Blatchford v. Native Village of Noatak, 501 U.S. 775, where he wrote "Despite the narrowness of its terms, since Hans v. Louisi- ana, 134 U.S. 1 (1890), we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms..."

I imagine you'll object because I said "opinions" rather than "opinion," as if that made my point about his hypocrisy any weaker. I could list all the other non-textualist 11th Amendment decisions he's signed on to, but I've a brief to write.

Fitz,

What part of "text" didn't you understand?

Chris D. said...

They're all very interesting individuals, I think, but Breyer's writing I find to be most enjoyable, and he has a great sense of humor (which can't help but come out, even in such grey things like constitution law). Scalia, of course, is the most electric justice, but I (like many others) don't particularly care for his personal temperament at times: a bit too "feisty" for someone who is suppose to uphold the constitution, above all else. That probably explains why I disagree with his opinions the most. In the end, though, the Supreme Court is supreme for a reason: only the very best lawyers in our country are nominated to the court, and we have a very strong judicial system, although it may be slightly more conservative than I would care for personally (Citizens United being the most prominent example)