Said Justice Ruth Bader Ginsburg in a statement I selected from a USA Today page collecting the statements of all the Supreme Court Justices, including the retired Justices Stevens and O'Connor (though not Souter, perhaps because he's attached to inconspicuousness).
Our longtime commenter Simon sent me that link, and he has his reflections on the death of Scalia here: "Our Hero has died... Over the last decade, I have often used 'Our Hero' as a sobriquet for Justice Scalia; that was tongue-in-cheek doesn’t mean that it’s a joke.... I never met Justice Scalia, but ten years ago last month, his debate with Justice Breyer at American University changed my life. He gave me direction, focus, and an intellectual toolkit that has shaped my approach to every question where we confront a text.... Would I be a Catholic today but for his influence? Perhaps; but if so, like a man who stumbles upon the right answer for the wrong reason (or no particular reason), it would been by blind luck, and would be a fragile, chancy thing...."
That made me look up what I said about the old Scalia-Breyer debate — back in 2005 (video of the debate is here):
Scalia suggests that people who want to use foreign law [in the interpretation of constitutional law] want to use it selectively. They never say let's abandon the exclusionary rule or strong abortion rights because other countries don't have these things. And they only want to use the foreign law that supports what they want to do anyway, as in Lawrence, when the foreign law that supported the decriminalization of homosexual sodomy was cited, but foreign law that did not was avoided. Obviously, they don't want it to be authority. So then what is the criterion for using it? Whenever it agrees with you?ADDED: I never wrote a post about Scalia's use of the word "applesauce" in a dissent, but I did write about "argle-bargle," here:
Justice Breyer says law "emerges" and the Supreme Court is just part of a "conversation" about what law is. Judges, professors, law students, lawyers – all are part of this "giant, messy -- unbelievably messy -- conversation."... Breyer says people naturally cite what is "useful." Of course, it doesn't "bind" the court, but foreign judges "are human beings," and they have problems to solve, and the ways they've figured out to solve problems are useful to us "if it's similar enough." Why shouldn't I read it? And if I read it, why shouldn't I cite it? They cite us. And if we cite them, it might help them establish the rule of law where they are....
Breyer: You look other places precisely because you don't trust your own opinions.
Scalia: The only reason it can make sense to you to think it matters what some judge in another country thinks is because in fact you DO trust your own opinion.
Basically, Breyer is claiming a kind of humility in looking to what others think, which Scalia portrays as cloaked arrogance.
Specifically, Scalia said: "As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by '"bare . . . desire to harm"' couples in same-sex marriages."And then I did go on to make an argle-bargle tag. I forgot to keep using it.
I started a new tag today. No, not "argle-bargle." Paraphrase. I've become immensely interested in the concept of paraphrasing, and I'm hypervigilant about paraphrasing about paraphrasing, and I see that there. Scalia has a really cheeky way of saying "so what you're really saying is...": whatever disappearing trail of its legalistic argle-bargle one chooses to follow....
"Applesauce," for the record, came in Scalia's dissenting opinion in King v. Burwell, last summer's Obamacare case:
The Court claims that the Act must equate federal and state establishment of Exchanges... Otherwise, the Court says, there would be no qualified individuals on federal Exchanges, contradicting (for example) the provision requiring every Exchange to take the “ ‘interests of qualified individuals’ ” into account when selecting health plans. Pure applesauce. Imagine that a university sends around a bulletin reminding every professor to take the “interests of graduate students” into account when setting office hours, but that some professors teach only undergraduates. Would anybody reason that the bulletin implicitly presupposes that every professor has “graduate students,” so that “graduate students” must really mean “graduate or undergraduate students”? Surely not....