Althouse: Should have?

June 17, 2020

Should have?

I'm giving this my "Althouse the pedant" tag, so stop now if you don't like where this is going. I'm reading the headline at The Washington Post, "Why Scalia should have loved the Supreme Court’s Title VII decision."

The man is dead. There's NOTHING he should have done.

Why not say "Why Scalia would have loved the Supreme Court’s Title VII decision"? I think I know why. The article is by George Conway. It's in WaPo. I'm going to say: They don't want to concede that Scalia would have joined the majority in this case, that he would have stuck to his principles (and that this case was truly an instance where these principles dictated the outcome the majority reached).

60 comments:

wendybar said...: George Conway??? That explains everything. He's an idiot, and WAPO sucks. They are an arm of the Progressive party...of course they would say that kind of idiotic shit.; 6/17/20, 10:36 AM
Unknown said...: You are an English Engineer. We need more of your kind! -willie; 6/17/20, 10:36 AM
Nonapod said...: Looks like they changed "should" to "would"?; 6/17/20, 10:40 AM
MD Greene said...: You don't understand. We just KNOW Scalia was bad. It cannot be said often enough.; 6/17/20, 10:40 AM
Clyde said...: Rick Wilson and George Conway are the Laurel and Hardy of Never-Trump "Republicans." Except, of course, they are unintentionally funny.; 6/17/20, 10:42 AM
Temujin said...: If there is one person in this world, one single person on the entire planet from Patagonia to Ulaan Baatar who could least speak for Antonin Scalia it would be George Conway. Again, WaPo trying to unseat the NY Times as the least serious fishwrap in the nation.
They are gaining ground on the times. Bigly!; 6/17/20, 10:43 AM
readering said...: His co-author on statutory interpretation, Bryan Garner, would agree with Conway, I believe. Garner, also a co-author with Gorsuch, approves of Gorsuch's textual analysis, but believes that Scalia would have sided with Alito's textual analysis. So Garner may think Scalia should have approved even if he would not have.; 6/17/20, 10:44 AM
Yancey Ward said...: Ok, Althouse, I am completely confused by this. Scalia would not have been in the majority decision from Monday, in my opinion.; 6/17/20, 10:44 AM
Left Bank of the Charles said...: Woulda, coulda, shoulda.; 6/17/20, 10:44 AM
Sebastian said...: "They don't want to concede that Scalia would have joined the majority in this case"

Well, yeah. Plus he would have eviscerated the phony textualism of the Kagan Court. As he should have.; 6/17/20, 10:45 AM
Yancey Ward said...: Ok, I think I now understand what you are saying, and you are just wrong. I don't think Conway and the WaPo editors are trying to not concede anything- they truly understand that Scalia wouldn't have supported the majority decision, so "should" is the right headline- they are laughably wrong anyway, but they are entitled to their opinion.; 6/17/20, 10:47 AM
Wince said...: The article is by George Conway. It's in WaPo.

"Oh, wait, is he a great big fat person?"; 6/17/20, 10:52 AM
tim maguire said...: I disagree with your assessment of the soundness of the decision, but fully support your pedantry. Saying that a dead man should have done something is not just wrong, it sounds wrong. It hits the ear oddly and makes me wonder where Conway the Wife Betrayer, Conway the Schmuck of a Husband's editor was. But it's WaPo, which stopped being a real newspaper years ago.; 6/17/20, 10:56 AM
tim maguire said...: Scalia often abandoned his principles in cases around sexual rights. And if he sided with the majority, he would have been abandoning his principles here too. Maybe that's why Conway said "should" instead of "would."; 6/17/20, 10:58 AM
Bay Area Guy said...: Scalia "would" have hated the stupid Scotus decision. It's not a legal dispute, it's a political dispute. If men want to pretend to be women to win track meets, well, if a majority votes Yay, ya got it. If the majority votes Nay, you don't got it.; 6/17/20, 11:00 AM
hombre said...: “Should” assumes Scalia would not have loved this case.

Althouse disagree: “...he would have stuck to his principles (and that this case was truly an instance where these principles dictated the outcome the majority reached).

A progressive law prof with an ax to grind tells us what Scalia’s principles would have dictated - to him. Doesn’t that remind you of an atheist grinding his ax by telling us what the Bible means in spite of what it says; 6/17/20, 11:02 AM
Sam L. said...: The WaPoo strikes again, eh?; 6/17/20, 11:02 AM
Mike Sylwester said...: Democracy Dies in Darkness!; 6/17/20, 11:03 AM
Rosalyn C. said...: RIP means people should stop telling that person what to do after they have died.; 6/17/20, 11:05 AM
Ann Althouse said...: "Ok, Althouse, I am completely confused by this. Scalia would not have been in the majority decision from Monday, in my opinion."

Fine to believe that. It's not relevant to my point. How would you rephrase the headline? I suspect that Conway, like you, believes Scalia WOULD have dissented, though, unlike you, he believes (or purports to believe) that Scalia, if he had been alive, on the Court, and following his principles, SHOULD have joined the majority.

I'm just trying to get the English language right. To me, it's absurd to say Scalia should have done something. He was dead. He's beyond the "shoulds." Unless you do some visualization of the afterlife and say he must be looking down (or up!) and loving the decision or wrongly failing to love it... but even then "should HAVE" doesn't fit.; 6/17/20, 11:10 AM
mtrobertslaw said...: "and that this case was truly an instance where these principles (J. Scalia's) dictated the outcome the majority reached." Please explain why you believe this to be a true statement.; 6/17/20, 11:10 AM
gilbar said...: he SHOULD have loved it... we should ALL LOVE it!
We are ALL REQUIRED to LOVE ANY THING OUR STATE DOES
LONG LIVE BIG BROTHER!; 6/17/20, 11:19 AM
Goddess of the Classroom said...: "I'm just trying to get the English language right."

This is one of the many reasons I read your blog faithfully. English is a complex language capable of nuances other languages aren't. I am one of the last English teachers who teach grammar & usage; I mentor student teachers whom I have to teach how to teach because their English Ed program does not. I am one of the last warriors guarding the gates against the Visigoths.; 6/17/20, 11:20 AM
tim maguire said...: Ann Althouse said...I'm just trying to get the English language right.

"Were he alive today, Antonin Scalia should have loved the Supreme Court’s Title VII decision."; 6/17/20, 11:23 AM
Mark said...: AA progsplains Scalia's jurisprudence.; 6/17/20, 11:31 AM
Char Char Binks, Esq. said...: “He should have, but he wouldn’t have” is how it ought to have been written, but it wasn’t, and he couldn’t, so he didn’t, and he shan’t.; 6/17/20, 11:36 AM
Ignorance is Bliss said...: I don't see any reason for them to not make that claim. They're willing to lie about everything else, so why not?; 6/17/20, 11:37 AM
Nichevo said...: If you really wanted to save people time you could use the tag "Althouse the fag hag" and then everybody would know for sure to give you a wide berth.; 6/17/20, 11:41 AM
madAsHell said...: Putting opinions in the mouth of a dead man.

I wonder how the FBI would do it??; 6/17/20, 11:43 AM
BarrySanders20 said...: Maybe the headline writer (not George Conway) used it in the Yiddish-English sense of "you want I should."

"You want I should go hungry?"

Or maybe it was just poor diction.; 6/17/20, 11:47 AM
Mark said...: The substance of today’s decree is not of immense personal importance to me. . . . it is not of special importance to me what the law says about [SOGI]. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves. . . .

When [Title VII was enacted in 1964], every State limited ["sex" to biological differentiation], and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a [statutory] provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification. . . . But what really astounds is the hubris reflected in today’s judicial Putsch.
-The Real Antonin Scalia, not the AA imagined version of him.; 6/17/20, 11:52 AM
Mike of Snoqualmie said...: So, according to SCOTUS, "sex" now means not only sex, but "sexual orientation" and "gender orientation." I also think it means "Mars aliens", "Political opinion" and "Chtululu." So, any violations of these new words is protected and any offenders must be exiles into the starry void, to be never heard of again.; 6/17/20, 12:05 PM
Dave Begley said...: Ex post facto mind reading of the deceased. Total BS. The worst kind of speculation.; 6/17/20, 12:22 PM
SensibleCitizen said...: One of the interesting (perverse) outcomes of this case is that the definition of what it is to be a woman, is actually left to whatever any individual man thinks it is. Extraordinary and anti-feminist line of reasoning.; 6/17/20, 12:23 PM
mccullough said...: If Scalia were alive, would Gorsuch have been nominated?

If Gorsuch were still an appeals court judge with a chance to be nominated to the Supreme Court and this case came before him there, would he have ruled as he did?

I think Gorsuch’s textualist approach to the case was fine. It’s a consistent approach. So is Alito’s approach, which seems to me to be most Scalia like.

Roberts is just a politician, and not a good one. Kagan is a good politician. She should be Chief Justice. Roberts should retire. He’s 65 and qualified for the full pension now.; 6/17/20, 12:28 PM
Gunner said...: Didn't this dope love Trump until he did not get a job he wanted?; 6/17/20, 12:33 PM
Clark said...: Should can signal uncertainty as well as ought. I might think that Scalia, if he had followed his own principals, would have decided x. But if I also thing that he might not have decided x because other peoples principals can be very complicated and hard to predict, I might then say that (I think) he should have decided x.; 6/17/20, 12:36 PM
tim maguire said...: Char Char Binks said...“He should have, but he wouldn’t have” is how it ought to have been written,

Great observation. "Should have" implicitly assumes that he wouldn't have.; 6/17/20, 12:50 PM
effinayright said...: tim maguire said...
Scalia often abandoned his principles in cases around sexual rights. And if he sided with the majority, he would have been abandoning his principles here too. Maybe that's why Conway said "should" instead of "would."
***************

WOW. Now THERE's a legal argument, supported by facts and a tight analysis!

Oh wait...; 6/17/20, 12:50 PM
Big Mike said...: I didn’t know you had an “Althouse the pedant” tag. It seems to me that you should be using it every time you pick over a Trump tweet looking for grammar problems and misspellings.; 6/17/20, 12:58 PM
wendybar said...: mccullough said..."Roberts is just a politician, and not a good one. Kagan is a good politician. She should be Chief Justice. Roberts should retire. He’s 65 and qualified for the full pension now."

She should have run for office instead of being nominated to be on the Supreme court. We don't need politicians on the court...we need competent, fair judges...not radicalized Progressive mouthpieces.; 6/17/20, 1:01 PM
Yancey Ward said...: "I'm just trying to get the English language right."

But that isn't even all you tried to do since you didn't stop with just disagreeing with the use of "should"- you tried to explain why Conway should not use it, and then came up with an opinion that is, on its face, ridiculous. Conway is right to use "should"- it shows he recognizes that Scalia wouldn't have like the decision- a much more tenable position than supposing Conway was afraid to admit Scalia would have liked it.

Of course, I could assume you wrote it all this way to do to Conway what Conway is doing to Scalia, which would be pretty clever. Were you that clever?; 6/17/20, 1:22 PM
gadfly said...: Must we choose what between differing "what would have happened if" statements?

Then there is the problem that "pedantic" has many synonyms complicated by the fact that "pedantic" shares 20 common synonyms with "persnickety."

particular
critical
precise
scrupulous
pretentious
pompous
fastidious
finical
fussy
meticulous
punctilious
hypercritical
captious
hairsplitting
hair-splitting
picky
nitpicking
pernicious
pernickety; 6/17/20, 1:33 PM
Mike (MJB Wolf) said...: I like Althouse the Pendant. But then as a child I would read Safire’s On Language column.; 6/17/20, 1:57 PM
Birkel said...: I look forward to the destruction of all that feminism had previously accomplished.

Your insurance rates are about to go up.
Mine are going down.

Thanks, ladies.; 6/17/20, 2:06 PM
ColoradoJim said...: If it was written by Conway, isn’t it more likely that the article was to try and boost himself up by appealing to the authority of Scalia? Since Scalia is safely dead he could write in such a way that no matter how Scalia would have ruled it would be seen as approving the ruling and by extension Conway’s crusade against Trump. No it is not logical thinking but dead people can be used as props to push a narrative.; 6/17/20, 2:20 PM
James K said...: The real point of Conway's blather is not about Scalia at all, it's to say "Shut up, conservatives, you should not be objecting to this decision. Of course his argument is nonsense: Title VII makes it “unlawful” for an employer “to fail or refuse to hire or to discharge … or otherwise to discriminate against any individual … because of such individual’s … sex.” Categorical words. No relevant exceptions — none, in particular, for sexual orientation.

"Sex" meant, and therefore continues to mean, whether one has an XX or XY chromosome (let's leave aside biological rarities like hermaphrodites). It did not mean sexual behavior, or behavior the appropriateness of which depends on one's sex. Title VII surely did not mean that John can't be fired for going into the ladies room, even though if John were a woman it would not be a firing offense. But that's what Conway is suggesting. The fact that there were failed efforts to amend the legislation to cover sexual orientation makes it clear that the plain meaning of the text did not do so.; 6/17/20, 2:29 PM
Ralph L said...: How about "ought to have loved?"
Gives the (correct) sense that he wouldn't have but should have.; 6/17/20, 2:55 PM
Original Mike said...: "Unless you do some visualization of the afterlife and say he must be looking down (or up!)…"

You're saying he's with John Dingell? You can get in trouble for that.; 6/17/20, 3:10 PM
JaimeRoberto said...: Maybe Conway could go meet Winston Churchill to get his opinion on it.; 6/17/20, 3:17 PM
Ozymandias said...: “Scalia would have suppressed his recognition that his principles of statutory interpretation compelled him to join the opinion”?; 6/17/20, 4:02 PM
Mark said...: Since animals cannot talk and tell us, how do we -- how CAN we -- determine if they are male or female??; 6/17/20, 4:23 PM
Mark said...: A bovine gives birth to a calf.

Is it a cow or a bull?

Can we ever know??

Not from the faction of SCIENCE! and PROGRESS!; 6/17/20, 4:25 PM
PaoloP said...: So transexualism is the plain textual reading of sex in the original law....

Amazing power of tribal thinking in the good society, I guess.; 6/17/20, 4:40 PM
Howard said...: I prefer "should of"; 6/17/20, 4:59 PM
Drago said...: Mary Jo Kopechne, had she lived, should have approved of Ted Kennedy's policies on women.

The good news is that since the accident she has always faithfully voted the straight democrat ticket.; 6/17/20, 5:36 PM
Jupiter said...: It would be unexceptionable to have written "Why Scalia should have loved Cat's Cradle", even though Scalia is no longer among us, because Cat's Cradle was written while he was among us. So your problem would seem to be with the idea that he should have loved something that did not exist during his life time. But what about "I should have loved to have attended your 5th birthday party dressed as Darth Vader, but Darth Vader had not been invented in 1961."?

Or is that the subjunctive? Help us out here, Goddess.; 6/17/20, 5:43 PM
Narayanan said...: I'm giving this my "Althouse the pedant" tag,
----========
it should be called pedant pendant; 6/17/20, 6:21 PM
tim maguire said...: wholelottasplainin' said...

WOW. Now THERE's a legal argument, supported by facts and a tight analysis

It's just not possible that you are that clueless.; 6/17/20, 6:56 PM
The Gipper Lives said...: Read Scalia's Obergefell dissent. It starts with "This is a judicial putsch" and goes downhill from there. The idea that he would have supported this Theft of Consent, a crime against the Civil Right of Americans to decide these matters is beyond absurd to the point of pornographic. The Feddle Gummint thinks it can invent a new definition of what is a man and a woman and force it on everyone at gunpoint?

They have a surprise coming.; 6/17/20, 10:01 PM