March 6, 2014

Why did Scalia refuse to join a footnote that ended "We therefore express no view on the issue"?

He also withheld his name from a second footnote that specified an issue for the purpose of saying it's not going to be dealt with.
We did not deal in these cases, nor do we here, with... We express no view about....
It's almost metaphysical. Reminds me of the philosophical questions of childhood like what if nothing is something? Or the conversational riposte when you drop the phrase "not to mention" and your interlocutor snarks "You just did." Or what is the sound of one hand clapping?

I hope this is a harbinger of Supreme Court writing to come. These characters have been too blabby for too long. If you're not going to talk about something, don't talk about it. Let's get tough. Let's get cranky. As Psycho Killer says: When I've got nothing to say, my lips are sealed...



Message to the Supreme Court: You're talking a lot, but you're not saying anything.

15 comments:

David said...

I'm not going to mention paralepsis in this comment, even though it's a popular rhetorical technique.

St. George said...

Song was first recorded in 1974, sez Wiki.

Amazing.

rehajm said...

You don't wish to express a point of view by expressing you have no point of view? You may ask yourself, How do I work this?

ngtrains said...

But, if 'X' is never mentioned in a decision, is it not true that someone in a few years say: "But they never considered 'X' and therefore the decision did not consider all possibilities.

David said...

He didn't join in the footnote because he knows that, for the court watchers who obsess about every possible nuance in every opinion, these footnotes in fact express a view.

In other words, there will be those who read footnote 8 as suggesting that it is possible for a person who sells a gun knowing (but not caring) that the gun will be used in a crime, is guilty of abetting the crime if it is committed. In other words, Justice Kagan's footnote will be seen as an invitation to try to convict gun dealers of abetting crimes -- and when it comes to the court, the prosecutor will say that the Supreme Court, in footnote 8, suggested that this was possible.

Scalia may or may not agree (I'm expressing no view) but I am of the view that he thinks suggesting the possibility is improper.

Henry said...

I'm waiting for the footnote that reads: "substantive due process, qu'est-ce que c'est?"

One time, one of the Volokh conspirators asked for pop songs that could be used as the basis for law school discussion. I don't remember if "Psycho Killer" was mentioned. My suggestion was this (nice animation, too).

David said...

"Scalia may or may not agree (I'm expressing no view) but I am of the view that he thinks suggesting the possibility is improper."

So why not just say so? Scalia does not usually shrink from being direct.

PDM said...

All this reminds me of the Fifth Circuit opinion in which the oh-so-clever law clerk (one assumes) weaved the Talking Heads songs and album titles into the court's opinion. See United States v. Abner, 825 F2d 835 (5th Cir. 1987). Funny stuff, if you don't mind federal judges using the bench for a little sport, respect for the litigants be damned.

Robert Cook said...

"Song was first recorded in 1974, sez Wiki."

That's wrong...too early.

Actually, in checking the Wiki, it says the song was first played in 1974, by The Artistics, (as Byrne, Frantz and Weymouth's band as Rhode Island School of Design was known).

David said...

David:

Because to do so he'd have to dissent in part, although that would be a dissent I'd love to see.

Ann Althouse said...

The first rule of Supreme Court footnotes is don't talk about not talking about things in Supreme Court footnotes.

RuyDiaz said...

Gotta say:

For those of us with the hitchhiker's thumb mutation, 'what is the sound of a one hand clapping' is NOT an unanswerable question. I can definitely make a one-hand clap.

umeboshi said...

Tina Weymouth is a babe.

Simon said...

No cases spring immediatley to mind, but he's done this before. The typical situation in which it happens seems to be a footnote discussing legislative history, so I imagine that what happens is that the opinion author puts that point into a footnote so that Scalia can join the entire opinion but reserve on the footnote. It's somewhere between a courtesy and a convenience. I don't know what's going on with these two.

mikee said...

In Heller v DC, the most important 2nd Amendment case in the last 50+ years, the question under consideration was whether a complete ban on handguns was allowed in the federal enclave of DC.

This narrow question was purposefully litigated to avoid raising any other issue than that.

Then Scalia, et al., went and mentioned in the decision that their decision did not make unconstitutional any other regulations or laws regarding firearms, which is logical, because those laws and regulations were not even under consideration in the Heller case.

Now anti-gun activists trot out Heller and say it declared all laws and regulations concerning guns are constitutional.

Sometimes you can't win by saying something, you can't win by not saying something, and you can't win when you say you aren't saying something.