February 22, 2016

"He was our man for all seasons, and we shall miss him beyond measure."

Said Chief Justice John G. Roberts, Jr., as the Supreme Court returned to the bench this morning, for the first time after the death Antonin Scalia.

ADDED: I wondered if Justice Scalia had ever quoted the play "A Man for All Season" in an opinion. I think the answer is no, but he joined a dissenting opinion, written by Chief Justice Roberts, in Armour v. City of Indianapolis, 132 S. Ct. 2073 (2012):
Indiana law requires that the costs of sewer projects be “apportioned equally among all abutting lands.” Ind. Code §36-9-39-15(b)(3). The City has instead apportioned the costs of the Brisbane/Manning project such that petitioners paid between 10 and 30 times as much as their neighbors. Worse still, it has done so in order to avoid administrative hassle and save a bit of money. To paraphrase A Man for All Seasons: “It profits a city nothing to give up treating its citizens equally for the whole world . . . but for $300,000?” See R. Bolt, A Man for All Seasons, act II, p. 158 (1st Vintage Int'l ed. 1990).
The quote de-paraphrased: "It profits a man nothing to give his soul for the whole world ... but for Wales, Richard?" And to get back to Jesus: "For what is a man profited, if he shall gain the whole world and lose his own soul?"

I also found a Stevens dissent — that Justice Scalia did not join — with what I think is a more familiar "Man for All Seasons" quote, in Nat'l Ass'n of Home Builders v. Defenders of Wildlife (2007)(quoting an earlier case in which Chief Justice Burger used the quote):
At the risk of plagiarizing Chief Justice Burger's fine opinion, I think it is appropriate to end my opinion just as he did--with a quotation attributed to Sir Thomas More that has as much relevance today as it did three decades ago....
"The law, Roper, the law. I know what's legal, not what's right. And I'll stick to what's legal.... I'm not God. The currents and eddies of right and wrong, which you find such plain-sailing, I can't navigate, I'm no voyager. But in the thickets of the law, oh there I'm a forester. . . . What would you do? Cut a great road through the law to get after the Devil?... And when the last law was down, and the Devil turned round on you--where would you hide, Roper, the laws all being flat?... This country's planted thick with laws from coast to coast--Man's laws, not God's--and if you cut them down... d'you really think you could stand upright in the winds that would blow then?... Yes, I'd give the Devil benefit of law, for my own safety's sake." R. Bolt, A Man for All Seasons, Act I, p 147 (Three Plays, Heinemann ed. 1967) (quoted in Hill, 437 U.S., at 195, 98 S. Ct. 2279, 57 L. Ed. 2d 117).

50 comments:

Hnkn said...

What an inappropriate use of the phrase "man for all seasons".

traditionalguy said...

Catholics like that phrase. Someone stood up for the Pope in Rome when Henry VIII said from now on he was Pope in England. It did not turn out well for that guy who never saw another season.

Ann Althouse said...

"The quote de-paraphrased: "It profits a man nothing to give his soul for the whole world ... but for Wales, Richard?" And to get back to Jesus: "For what is a man profited, if he shall gain the whole world and lose his own soul?""

There's also George Harrison:

"We were talking about the love that's gone so cold/And the people who gain the world and lose their soul..."

Hnkn said...

A guy who forcefully states his opinions and philosophy, which he stands by for decades even as he is reviled by millions to the point where many are gleeful at his death isn't really "a man for all seasons". He was a man singularly out of season for much or all of his career.

David Begley said...

"The law, Roper, the law. I know what's legal, not what's right. And I'll stick to what's legal.... I'm not God."

That quote perfectly encapsulates exactly what Obama has NOT done with his Executive Orders. He apparently thinks he is "on the right side of history" so he just ignores the law or makes up his own law.

The destruction of the Rule of Law is Obama's legacy right after identity politics.

Balfegor said...

"The law, Roper, the law. I know what's legal, not what's right. And I'll stick to what's legal.... I'm not God. The currents and eddies of right and wrong, which you find such plain-sailing, I can't navigate, I'm no voyager. But in the thickets of the law, oh there I'm a forester. . . . What would you do? Cut a great road through the law to get after the Devil?... And when the last law was down, and the Devil turned round on you--where would you hide, Roper, the laws all being flat?... This country's planted thick with laws from coast to coast--Man's laws, not God's--and if you cut them down... d'you really think you could stand upright in the winds that would blow then?... Yes, I'd give the Devil benefit of law, for my own safety's sake."

A famous quote, and one that recogises that the law is not necessarily right (nor just). But one whose contemporary application places weight on our common law tradition without really earning it. That thicket of laws grew up over centuries of custom and tradition. Modern law has not swept it all completely aside, but it has swept much of it aside. And law is, after all, just a set of rules. The Nuremburg laws and Jim Crow were law as much as the laws of the United States are today. A "thicket" of laws is no real protection at all. The real protection was the dense foundation of custom and tradition on which the common law rested. And that foundation we have eroded away.

traditionalguy said...

"What shall a man give to buy his own soul" is a good evangelical opener.

n.n said...

While Mother Nature has firm, inviolable rules for our conclusion, the man and philosophy stood their ground in his season.

Bay Area Guy said...

Scalia was one of my heroes. Great judge, great man. A true thinker. His dissent in Morrison v. Olson was an absolute classic. I got to meet him once, briefly, at a conference in Colorado. He had an odd combination of acerbic brilliance with a dash of humility.

He attacked ideas ruthlessly, but never people. Very rare these days.

He'll be greatly missed. But he accomplished a lot.

dustbunny said...

NYT has an article today on the popularity of Dylan quotes by the SC and other justices

Quaestor said...

The film has that quote slightly differently.

MORE: There is one question I'd like to ask the witness. That's a chain of office you're wearing, may I see it? The Red Dragon, what's this?

CROMWELL: Sir Richard is appointed Attorney General for Wales.

MORE: For Wales... Why Richard, it profits a man nothing to give his soul for the whole world, but for Wales?

James Pawlak said...

"...the law is an ass", (Charles Dickens)

buwaya said...

Saintliness aside, they executed Thomas More, and he lost.
Whatever protection he though the law gave or should give was an illusion; the law can't give anything on its own, it just reflects the power relationships at the time. Lawyers and judges are clever; they have no problem making things come out as they need to have them come out. Its just like the old Roman Haruspices interpreting their livers according to Caesars needs.
As my abuelita used to say, for people making much of the qualities of losers, it is a "consuelo de bobo" - a fools consolation.
Scalia was no doubt as wonderful as so many say, but his true value for anyone outside the legal cognoscenti was his vote (that's what it was). What matters isn't the quality or style of the deliberation, but the outcomes. It doesn't matter how the gun works, all that matters is who gets shot.

Quaestor said...

And our glorious Lord Zero couldn't find time in his busy schedule to attend Justice Scalia's obsequies, setting a precedent. (He's done a lot of precent setting these last seven years, has he not?) He made sure to be snapped by the press photographers while carrying a four inch thick binder from the West Wing to the Residence (oh, too busy-busy to even leave the work for a moment, must take it to bed, even). He even took the long cut through the portico just to make certain the distracted nation knew what herculean labors their President endured for their happiness.

but for Wales?

Steve M. Galbraith said...

One of the ironies in the critics of Scalia - those who thought he was a crypto-Nazi - is that it was his own view of the role of a Justice that would prevent such a person from doing great harm. It was THEIR view of the role of a Justice that risks everything.

Assume we have no limits on the Constitution? It's a "living" document that can change with the winds of time. So, where do those who think he was a Nazi go to stop him from doing harm? There isn't anywhere to go; all of the restraints have been removed.

Scalia's originalism limits what a Justice Goebbels can do. But his critics don't even realize it.

Quaestor said...

Saintliness aside, they executed Thomas More, and he lost.

The Thomas More of history and the Thomas More of the stage are two different men. Both mounted the scaffold for the sake of a principle, but different principles, I think.

The historic Thomas More regretfully welcomed the burning of heretics, something a Protestant atheist must see as coloring of the reputation somewhat. The principle he died for may have been papal supremacy, or the unity of Christendom, but for sovereignty of the individual conscience as did the playwright's More, with a smoking brand in his fist, never.

Quaestor said...

Here's Obama being all hard-working and shit.

HoodlumDoodlum said...

St. Scalia, sure.
Add up his miracles.

buwaya said...

The important point about Thomas More is not his value as a McGuffin in latter day rhetoric.
That's the Thomas More of the stage. Useful for hitting someone over the head with pious sentiments of one sort or another. If not Thomas More someone else will do perfectly well. For this purpose he is just a literary device, a McGuffin.
The only important thing in the concrete was that he was an obstacle in the way of the English crown acquiring greater power, over the church in this case. In this, the only significant matter as far as the material and social environment of the powerful of the day, and the common people as well.
The Church lost all its power, and all its lands, the local aristocracy mostly took over the "livings" and control of the local clergy, etc. And the follow-on social and ideological changes that affected the culture of the people, high and low.
No sentimental hagiography of More changes 600 years of consequences of his not getting his way.

So with Scalia. His writings are now a source of quotes for use in rhetorical argument. Like Thomas More, this is a McGuffin, really, attaching Scalias name as an emotional enhancer to an argument.
His votes are what always mattered. They are ALL that ever mattered. And he voted, and mattered, because he was put in his position in an exercise of power.

HoodlumDoodlum said...

buwaya said...Whatever protection he though the law gave or should give was an illusion; the law can't give anything on its own, it just reflects the power relationships at the time.

I'm not sure that's entirely fair if we're talking about the movie/play More, buwaya. As I recall he points out after Richard Rich's perjury that he is "a dead man." He wasn't let down by the law, in the end, but by the intentional lie of Rich. That's his point in the "Wales" line--that Rich had perjured himself and killed More for the sake of a relatively low office. The movie More cared most about his fidelity to God, so this betrayal was the worst Rich could have done--worst because it damned Rich himself (that's why More says "I am sorrier for your perjury than for my own peril" which was apparently an actual quote).
So it's true that the trial went against More, but I'm not convinced it did because the law itself was flawed/at fault. Like economics the law too relies on, depends upon, and at root is about people, and the fact that people are flawed shouldn't be held as evidence that the law is bad. Imperfect, surely--but as the work and tool of Man necessarily so.

Michelle Dulak Thomson said...

Ann, I can swear that I remember you refusing even to see the Bolt film because it was "middlebrow." It surprises me a bit to see you quote the most famous passage from this middlebrow play.

Quaestor, there just weren't any people of note in 16th-c. England who didn't welcome the burning of heretics, on one side or the other.

HoodlumDoodlum said...

Balfegor said...The real protection was the dense foundation of custom and tradition on which the common law rested. And that foundation we have eroded away.

Erosion is a natural process, it happens over time without any conscious intent. The removal to which you refer was intentional and unnatural--you implicitly forgive the perpetrators when you fail to point out their complicity.

buwaya said...

"He wasn't let down by the law, in the end, but by the intentional lie of Rich."

That's the nature of fiction - its easy to distort perspective and make more of the details than they deserve - the reality was that he was inconvenient, and he was gotten rid of. If not one way, another would have been found.

"but I'm not convinced it did because the law itself was flawed/at fault"

The law was not flawed or at fault - it was merely irrelevant.
My point is that the law is merely a social convention, a ritual, of no force or power in itself.
It does whatever is needed by whomever has the power at the time. If it can be said that the law impedes something some people greatly desie it is merely the playing out of a power struggle.

Quaestor said...

[There] just weren't any people of note in 16th-c. England who didn't welcome the burning of heretics, on one side or the other.

Tu quoque, Michelle? Try as I might I can't think of an English Catholic burned by an English Protestant. Perhaps you can enlighten me?

buwaya said...

"Try as I might I can't think of an English Catholic burned by an English Protestant. Perhaps you can enlighten me?"

IIRC quite a few English Catholics were hung, drawn and quartered by Henry VIII and his successors. Burned vs HDQ - it is a bit of over-focus on the details.

Quaestor said...

As heretics, or traitors?

buwaya said...

"As heretics, or traitors?"

Conveniently, the English categorized "heresy" as "treason". Do labels matter?
Whats the difference whats written on the piece of paper, once the king has decided to do you in?

Quaestor said...

byway wrote: Do labels matter? Whats the difference whats written on the piece of paper, once the king has decided to do you in?

I'm disappointed that someone as perceptive as you usually are would think why someone dies to be irrelevant.

buwaya said...

Why he dies? We know that. Whats on the piece of paper usually hasn't much to do with why.
These English Catholics died because they weren't with the program. They were inconvenient.
That's all.

Its like paying undue attention to the reasons given by the Soviet state in its execution orders.
Whatever came to hand would do.

buwaya said...

An example - there are dozens (if not hundreds) of executions that turned on the legal trickery in question (see below), and the body count, ultimately, was in the hundreds of thousands in Britain and Ireland - all turning on this point -

https://en.wikipedia.org/wiki/John_Houghton_(martyr)

The trick here is The Act of Supremacy, which required the English Church to accept that the Crown was the ultimate authority in all religious matters. This required all churchmen to swear a heretical oath. Failure to swear was treason. So there you go, that's the trick of turning a religious difference into a secular crime.
Should we care what the trick was?

YoungHegelian said...

@Quaestor,

"Try as I might I can't think of an English Catholic burned by an English Protestant. Perhaps you can enlighten me?"

Are you kidding me? Have you never heard of the English Jesuit Martyrs?. Nor of the punishments imposed on "recusant" noble families both in England, Scotland, & Wales? As Michelle points out above, it wasn't as if any of the lot were big fans of freedom of religious conscience in principle, but to think that somehow the attempted extermination of a thousand years of Roman Catholicism in GB was going to be a neat & tidy business just boogles the mind.

Are you now taking your history lessons from Tradguy?

buwaya said...

A really, truly disturbing movie -
https://en.wikipedia.org/wiki/The_Chekist
This thing can be hard to watch, and not recommended for anyone under 50 .

The whole thing is on Youtube IIRC.
It is nearly the best argument I know of for stripping the illusions of "process".
The Checkists rather casually dispose of "cases" for whatever reasons seem plausible, or whatever it takes to fill a line on the form, or there's no need to bother with the form at all, if it gets in the way of what amounts to a meat-processing operation, keeping up with the volume of new arrivals.

Quaestor said...

The Catholic martyrs of the English Reformation are men and women of Catholic denomination who were executed under treason legislation in the years of the English Reformation between 1534 and 1680 CE. A certain number of them have officially been recognised as martyrs by the Catholic Church.

Executed for treason, not heresy.

buwaya said...

"Executed for treason, not heresy."

I have a very, very hard time understanding why this matters.
They simply redefined heresy as treason. As simple as that.
They were executing Catholic clergy for being Catholic clergy. There is not the slightest difference between them and the near-contemporary Tokugawa persecution of Christians.

buster said...

@ Questor at 1:42

More was sentenced to be burned, but the king was persuaded to commute the sentence to beheading. Not because the king was more tolerant of heretics than More himself, but because of the influence of More's supporters/sympathizers.

buster said...

Mistake: sentenced to be hanged, drawn, and quartered. As punishments go, I'd take burning. Many victims died of smoke inhalation before the fire got there.

Quaestor said...

I have a very, very hard time understanding why this matters.

In the end we're all dead. If why we die is irrelevant then the crime of murder has no logical raison d'ĂȘtre.

They simply redefined heresy as treason. As simple as that.

Not nearly so simple. Look up heresy and treason in a dictionary. They are not nearly the same.

They were executing Catholic clergy for being Catholic clergy.

There's only one incident I know of where that was literally true, and it wasn't in England. In 1572 19 Catholic monks and friars were hanged for refusing to renounce the pope by Dutch Protestants. This was in the midst of the vicious war prosecuted by the Spanish Hapsburgs against the Netherlands Protestants, and was in defiance of the orders of William of Orange, who enjoined his fellow Protestants to leave clergy and the religious unmolested. William was assassinated for his humanity by a Catholic some years later.

There is not the slightest difference between them and the near-contemporary Tokugawa persecution of Christians.

I very much doubt Tokugawa Ieyasu persecuted Christians for doctrinal reasons. The fact that the Christians were aligned with Toyotomi had much more to do with it.

Quaestor said...

Buster wrote: More was sentenced to be burned

Incorrect. More was convicted of treason and was sentenced to be hanged, drawn, and quartered -- the typical execution method applied to commoners. Henry commuted the sentence to death by the axe.

buwaya said...

Tokugawa persecuted Christians for over 200 years. The religion was banned.

"Not nearly so simple. Look up heresy and treason in a dictionary. They are not nearly the same."

This is still non-responsive. The distinction in this case is meaningless. heresy - professing a banned religious idea, is defined by the authorities as treason, being disloyal to the state. This makes a difference?
Just in what paperwork needs to be filed, if that.

"In the end we're all dead. If why we die is irrelevant then the crime of murder has no logical raison d'ĂȘtre."

This is obtuse.

"There's only one incident I know of where that was literally true"

Nearly every case of the Tudor - Stuart executions was that of simply being in the country and preaching.
https://en.wikipedia.org/wiki/John_Roberts_(martyr)

Note - like MOST of the listed cases, and I suggest you have a look - "he was tried and found guilty under the Act forbidding priests to minister in England"

buwaya said...

More, a thought experiment - if I, Lavrentiy Beria, decide that kiting checks can be construed as treason, then its treason and its off to the cellar of the Lubianka (this sort of thing did happen). You can point to articles about fraud vs treason all you want, but Beria doesn't care. He can define anything as he likes. Like the Tudors/Stuarts could and did.

buwaya said...

To cite the relevant law (there was a long series of escalating severity)

From the Catholic Encyclopedia but in Wiki and elsewhere -
https://en.wikipedia.org/wiki/Jesuits,_etc._Act_1584

"The climax of Elizabeth's persecution was reached in 1585 by the "Act against Jesuits, Seminary priests and other such like disobedient persons" (27 Eliz. c. 2). This statute, under which most of the English martyrs suffered, made it high treason for any Jesuit or any seminary priest to be in England at all, and felony for any one to harbour or relieve them."

Michael in ArchDen said...

I'm just waiting for one of the Justices to follow the example of the Georgetown prof, and issue a statement that the Chief doesn't speak for all of them, and that "we shall miss him beyond measure" doesn't represent the entire court's opinion.

Mark said...

It did not turn out well for that guy who never saw another season.
they executed Thomas More, and he lost


Turned out better for him than for Henry Rex.

Mark said...

Bolt's treatment of the trial is reasonably accurate and consistent with the historical record set out by More's son-in-law, William Roper, in his biography of More published posthumously in 1626.

Allocution of Sir Thomas More at his trial --

"For as much as, my Lords, this Indictment is grounded upon an Act of Parliament, directly repugnant to the Laws of God and his Holy Church, the Supreme Government of which, or of any part thereof, no Temporal Person may by any Law presume to take upon him, being what right belongs to the See of Rome, which by special Prerogative was granted by the Mouth of our Savior Christ himself to St. Peter, and the Bishops of Rome his Successors only, whilst he lived, and was personally present here on Earth: it is therefore, amongst Catholic Christians, insufficient in Law, to charge any Christian to obey it." And in order to the proof of his Assertion, he declared among other things, that "whereas this Kingdom alone being but one Member, and a small part of the Church, was not to make a particular Law disagreeing with the general Law of Christ's universal Catholic Church, no more than the City of London, being but one Member in respect to the whole Kingdom, might enact a Law against an Act of Parliament, to be binding to the whole Realm": so he shewed farther, "That Law was even contrary to the Laws and Statutes of the Kingdom yet unrepealed, as might evidently be seen by Magna Charta, wherein are these Words; Ecclesia Anglicana libera sit, & habet omnia jura integra, & libertates suas illcesas: And it is contrary also to that sacred Oath which the King's Majesty himself, and every other Christian Prince, always take with great Solemnity, at their Coronations."

Mark said...

Thomas More was indicted, and Henry and his men were determined to condemn him for it, because he remained silent. He minded his own business and sought to withdraw from any controversy. Far from publicly condemning Henry, he was content to let the king do his business.

But the thing is this -- thugs and tyrants and evil are not content with you minding your own business. They will not leave you alone, but will demand your involvement and approval. That is what the left does today.

Simon said...

When I read A Man for All Seasons, the part of More is always played in my head by Peter O'Toole. I doubt the historical veracity of that choice, but he does say the lines very well.

HoodlumDoodlum said...
"St. Scalia, sure."

Santo subito!

Quaestor said...
This comment has been removed by the author.
Quaestor said...

The distinction in this case is meaningless. heresy - professing a banned religious idea, is defined by the authorities as treason, being disloyal to the state.

A mere assertion, and a self-serving interpretation unsupported by the actual indictments. Show me the documents.

Tokugawa persecuted Christians for over 200 years. The religion was banned.

Somewhat inaccurate. Foreigners, including Christian missionaries, were banned. The Dutch continued to trade in Japan, but were confirmed to certain off-shore islands. Native Japanese Christians continued to worship openly in Kyushu and Shikoku. Only in the circuit of Kanto, the principal city of which was Edo was Christian worship proscribed, but only in public (much as in England before 1688) Private worship was permitted because were there Christians among the daimyo, They were compelled to maintain a residence in Edo and live there for part of the year.

This is obtuse

Only to the non-objective mind. I'll put you a middle case, in honor of the Bolt's Richard Rich character.

A redshirt crewman is found collapsed in the corridor of USS Enterprise's Deck 3. Chief medical officer Leonard "Bones" McCoy whips out his tricorder and scans the crewman.

"He's dead, Jim," says the physician.

"Too bad. Flaherty was a good officer. Better chuck him out before he stinks up the place," replies Captain James Tiberius Kirk, master and commander of USS Enterprise.

"But, Captain, Lieutenant Sulu was heard by many, including myself, to threaten Ensign Flaherty with his life," says the First Officer, Commander Spock.

"And there's a sword wound in Flaherty's chest!" interjects McCoy.

"Indeed," continues Mr. Spock, "a weapon Mr. Sulu favors and is known to be more than proficient with."

"Jim, this is clear case of murder..."

"Not necessarily, Doctor, but an inquiry is warranted by the facts..."

"Dead's dead, gentlemen. Why is irrelevant. Chuck 'im," says the Captain.

"But, Jim..."

"No buts. Transport the corpse into space. That's an order."

Crazy Jane said...

My favorite is Scalia's takedown of an Oregon decision that convicted a man who was growing marijuana in his house, based on police outdoor surveillance of how much electricity was being used. Scalia blew the whole thing out of the water, and good for him. People charged with crimes -- not a big part of the electorate, yes -- owe Scalia gratitude for his respect for their rights.

Bill Peschel said...

"It profits a man nothing to give his soul for the whole world ... but for Wales, Richard?"

Odd. This is the second time I've heard this phrase this week, but in a different context. On Kevin Smith's Hollywood Babble-On podcast, he mentions that everytime he hears about Wales, this is what he thinks.