February 14, 2016

"We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation."

"Justice Scalia nailed all the weak spots—the 'applesauce' and 'argle bargle'—and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh. The press referred to his 'energetic fervor,' 'astringent intellect,' 'peppery prose,' 'acumen,' and 'affability,' all apt descriptions. He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp."

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?

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.
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:
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."

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....
And then I did go on to make an argle-bargle tag. I forgot to keep using it.

"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....

13 comments:

Chuck said...

In the hours after the news of Scalia's death, I wrote in these comments pages that the Justice was the second-most "consequential" individual in American government, following only the president.

Funny; hours later President Obama used the same word in his statement on Justice Scalia, and then so did Marco Rubio in the Saturday night debate.

eric said...

Chuck, you also wrote that the Republicans should cave to Obama and put whoever he wants on the Supreme Court.

I hope your candidate for the presidency loses so badly, you feel it all the way down in your bowels. Because that's what Republicans like you, surrender monkeys, deserve.

Bill Harshaw said...

Cass Sunstein, that rabid leftist :-), has a nice tribute. http://www.bloombergview.com/articles/2016-02-14/the-scalia-i-knew-will-be-greatly-missed

He was a great man, and a deeply good one.

Left Bank of the Charles said...

It's interesting that the two Justices on opposite sides most famous for their blistering dissents were great friends. And Scalia was also a friend to Kagan. New York values.

CWJ said...

And did any of his insight change anything with Ginsburg other than to go back and rewrite what she had already decided? Did any of his insight lead her to ever come to an opinion other than that of the "liberal wing" of the court? No this is all "nil nisi bonum" bullshit. She's just happy there's one less first class mind on the court to keep her honest.

buwaya puti said...

CWJ is right.
What matters outside of legal circles is the decision.
Inside the box its all very well to have an intellectual appreciation of the how, but outside of it the only thing that matters is the what.
It wouldn't matter to the rest of us if these questions were settled by gladiators having knife-fights, and doubtless fight fans will also have an aesthetic appreciation for skill and style.

Chuck said...

eric said...
Chuck, you also wrote that the Republicans should cave to Obama and put whoever he wants on the Supreme Court.

I hope your candidate for the presidency loses so badly, you feel it all the way down in your bowels. Because that's what Republicans like you, surrender monkeys, deserve.


I said no such thing, eric. I implied no such thing. You are making all of this up. You can't quote me on any such thing. I don't know quite how your fabulist conspiratorial mind works, but this post explains a lot, since it involves me directly and I know better.

You somehow want to paint me as weak, or some such thing? Not worthy of the legacy of Scalia, say?

Professor Althouse will back me up on this: NOBODY in the history of her blog has more lavishly praised Justice Scalia, and more regularly quoted Scalia, than I have. And more recently, no Republican candidate for president has a sketchier history of dubious comments relating to Scalia, than Donald Trump.

n.n said...

Ginsburg changed her choice once Scalia developed a voice and a defense.

Unfortunately, the Matriarch still had plans for Scalia. He had passed the threshold of viability, and would be aborted with the rest.

Rhythm and Balls said...

Scalia suggests that people who want to use foreign law [in the interpretation of constitutional law] want to use it selectively.

Do we not have an honored tradition in this country of taking from the best of what other countries have to offer and discarding the worst?

Simon said...

Left Bank of the Charles said...
"It's interesting that the two Justices on opposite sides most famous for their blistering dissents were great friends. And Scalia was also a friend to Kagan. New York values."

Kagan was, I fancy, part of the Harvard connection.

Rhythm and Balls said...
"Scalia suggests that people who want to use foreign law [in the interpretation of constitutional law] want to use it selectively. Do we not have an honored tradition in this country of taking from the best of what other countries have to offer and discarding the worst?"

Sure, and a member of Congress would do well to consider foreign materials. But to bring them into a judicial opinion is to misconceive the judicial role, which is why that debate was, as I came to realize, very much pregnant. Justice Breyer was (and is) wrong about foreign law because he didn't (and doesn't) understand the proper lawsaying role of a judge.

robother said...

As Left Bank of the Charles says,
"New York values."

What I most missed about moving to Flyover Country from New York City was the way lawyers could passionately disagree on political/Constitutional issues and still remain friends. (Admittedly, I have no idea if that's changed since 1975,)

David McMillan said...

Do we not have an honored tradition in this country of taking from the best of what other countries have to offer and discarding the worst?

Only if you think the courts are there to create law. Scalia very clearly pointed out in the video that was linked that Breyer was an activist judge.

Jason said...

Well, to an extent, we shouldn't give a rat's ass about what eurotrash thinks about this or that legal issue.

But we imported a lot of incredibly central ideas from abroad: Natural rights theory, the enlightenment, John Locke, John Stuart Mill, Freeborn John, King John being forced to sign the Magna Carta (what is it with all the "Johns?") English common law, it goes on.

But this doesn't mean you have to continue to import ideas, though. We have an incredibly rich intellectual history of jurisprudence, with lots of very well thought-out precedent. Stare decisis has a lot of value. If you start importing other country's ideas into our own legal tradition, you undermine precedent, you chip away at the foundations of legal stability and predictability, and you run the risk of introducing a virus.

It's like introducing a new organism into a carefully balanced ecosystem... the new organism can do a ton of damage, and stupid people (inevitably liberals) will run with the idea to cause the maximum damage possible.