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(ABA Journal)   Posner says Scalia uses his fancy talk "to generate the outcome that favors Justice Scalia's strongly felt views on such matters as abortion, homosexuality, illegal immigration, states' rights, the death penalty, and guns"   (abajournal.com) divider line 82
    More: Interesting, Justice Antonin Scalia, Posner, death penalty, party favors, book reviews, abortions, equivocations, gays and lesbians  
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1753 clicks; posted to Politics » on 21 Sep 2012 at 2:44 PM (1 year ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2012-09-21 10:46:19 AM
I've always thought that it was your policy preferences that dictated your supposed legal principles of interpretation, rather than the other way around.

I just don't believe that humans are particularly principled. Not many of them, anyways. Things that look good, you figure out a reason to do them. Things that are icky, you figure out a reason to not do them.
 
2012-09-21 11:43:34 AM
Scalia know how he will rule before the case is heard. His only motivation during the hearings is to catch the opposing lawyer in some rhetorical trap so that he can provide some legal cover to his opinion.
 
2012-09-21 11:46:52 AM
I'm with Posner on this. Scalia is not exactly consistent by any means. He'll come to a conclusion ahead of time and spend the rest of his time torturing logic (sometimes) to nudge the decision in line with his conclusion.
 
2012-09-21 11:48:52 AM
I'd call Scalia a piece of shiat, but that really wouldn't be fair.

To other actual pieces of shiat, I mean.
 
2012-09-21 11:52:44 AM
Ah, so Scalia is simply being tortuously disingenuous with his "legislative history" comment. Gee, wouldn't have expected that of him.
 
2012-09-21 12:00:10 PM

RexTalionis: He'll come to a conclusion ahead of time and spend the rest of his time torturing logic (sometimes) to nudge the decision in line with his conclusion.


Which is perfectly legal as long as the intent of the torture isn't to punish logic.
 
2012-09-21 12:00:44 PM
No farking kidding.
 
2012-09-21 12:02:22 PM
www.deviantart.com
 
2012-09-21 12:29:35 PM
Obvious tag on vacation again?
 
2012-09-21 12:37:52 PM

Mentat: Scalia know how he will rule before the case is heard. His only motivation during the hearings is to catch the opposing lawyer in some rhetorical trap so that he can provide some legal cover to his opinion.


yes no sort of. It could be argued that justices guild hypotheses, ask questions around those theories and move forward from there. I am not sure how things would work much differently. Sure you could honestly build a number of positions, including those you completely and totally disagree with and actively try to prove that point during questioning.

wait, that would be the most honorable way to act as a judge.

example:
I am completely in favor of legal abortion. SO, I take the position that it should be illegal. Work honestly and hard to formulate strong arguments in favor of banning abortion. Ask incredibly pointed questions, forcing people to give real arguments against my position. And if they can not, doesnt that mean that I will probably have to change my view???

FARK
being open minded and honest is hard!!
 
2012-09-21 12:52:15 PM
One could say that every SCOTUS judge does the same
 
2012-09-21 12:55:08 PM

cman: One could say that every SCOTUS judge does the same


One could say it, but it would be correct.
 
2012-09-21 01:02:57 PM

RexTalionis: I'm with Posner on this. Scalia is not exactly consistent by any means. He'll come to a conclusion ahead of time and spend the rest of his time torturing logic (sometimes) to nudge the decision in line with his conclusion.


And he'll make sure to be an asshole while doing so. You know he's smarter than the other justices because he keeps insulting them!
 
2012-09-21 01:04:35 PM

cman: One could say that every SCOTUS judge does the same


The problem is that Scalia clings to this facade of being a pure originalist with this idea that he knows exactly what the Founding Fathers meant by every aspect of the Constitution.
 
2012-09-21 01:10:43 PM

Cyberluddite: cman: One could say that every SCOTUS judge does the same
One could say it, but it would not be correct.


FTFM. Dammit, I can't type today.
 
vpb [TotalFark]
2012-09-21 01:11:00 PM

hillbillypharmacist: I've always thought that it was your policy preferences that dictated your supposed legal principles of interpretation, rather than the other way around.

I just don't believe that humans are particularly principled. Not many of them, anyways. Things that look good, you figure out a reason to do them. Things that are icky, you figure out a reason to not do them.


Some are much less principled than others.
 
2012-09-21 01:36:34 PM
OH NO HE DI'NT

/seriously, in legal terms, this is a sick burn
 
2012-09-21 01:37:13 PM

vpb: Some are much less principled than others.


I prefer to think of humans not as more or less principled, but as more or less talented at justifying their beliefs.
 
2012-09-21 01:43:04 PM
In other news, there are still people who don't know that Scalia decides cases before they are heard based on GOP politics, not the Constitution.
 
2012-09-21 01:48:05 PM
 
2012-09-21 02:48:38 PM

hillbillypharmacist: I just don't believe that humans are particularly principled. Not many of them, anyways. Things that look good, you figure out a reason to do them. Things that are icky, you figure out a reason to not do them.


I often say: conservatives are the optimists...they believe that left to their own devices, people will always do good; liberals know better.
 
2012-09-21 02:53:57 PM
Everyone keeps complaining about partisans on the SCOTUS, but in recent years SCOTUS has been perfectly consistent (with one notable exception): It always rules to increase the power of government, whether that ruling pleases liberals or conservatives or neither.
 
2012-09-21 02:55:09 PM

RexTalionis: cman: One could say that every SCOTUS judge does the same

The problem is that Scalia clings to this facade of being a pure originalist with this idea that he knows exactly what the Founding Fathers meant by every aspect of the Constitution.


And - wouldn't you know it? - the Framers agree with Scalia 100% of the time!

// I wonder how he reconciles the Founders' internal disagreements, though
// "No True Framer" fallacy?
 
2012-09-21 02:56:25 PM
How dare anyone question Justice Scalia's telepathic connection with the ghosts of the Founders. The fact that the ghosts always tell him what he wants to hear is mere coincidence.
 
2012-09-21 02:58:10 PM
So Scalia thinks he's cooler than Posner?
 
2012-09-21 02:58:33 PM

canyoneer: Everyone keeps complaining about partisans on the SCOTUS, but in recent years SCOTUS has been perfectly consistent (with one notable exception): It always rules to increase the power of government, whether that ruling pleases liberals or conservatives or neither.


Did Citizens United increase the power of government?
 
2012-09-21 03:01:52 PM
Thanks Romero
 
2012-09-21 03:03:01 PM

hillbillypharmacist: Did Citizens United increase the power of government?


It increased the power of the parties that control the electoral machinery in every state, both houses of Congress, the Executive, and the Judiciary. So, yes: it increased the power of the government. In case you hadn't noticed, the two parties own the government - they are entrenched, dug in deeper than an Alabama tick. The two parties are the government, and now they have unlimited cash from private and corporate sources to maintain their iron grip on the government.
 
2012-09-21 03:04:22 PM

RexTalionis: cman: One could say that every SCOTUS judge does the same

The problem is that Scalia clings to this facade of being a pure originalist with this idea that he knows exactly what the Founding Fathers meant by every aspect of the Constitution.


And occasionally his Ouija board indicates that they've changed their mind since a previous ruling, so he can ignore his own precedent.
 
2012-09-21 03:05:56 PM
I usually don't go past "Scalia is a giant dickbag who needs to go away".
 
2012-09-21 03:06:33 PM

namatad: example:
I am completely in favor of legal abortion. SO, I take the position that it should be illegal. Work honestly and hard to formulate strong arguments in favor of banning abortion. Ask incredibly pointed questions, forcing people to give real arguments against my position. And if they can not, doesnt that mean that I will probably have to change my view???

FARK
being open minded and honest is hard!!


No. The burden of proof is on the person making the extraordinary claim, or barring that the person trying to make a change in current policy. The null hypothesis for any policy question is, for various practical reasons, what we're already doing. In the case of abortion, that's a national policy banning states from forbidding or placing arbitrary obstacles in the way of abortion access.

If you come to a "draw" where the worst that can be said about the current policy is that you can't find anything favorable to say about it, then the current policy (abortion being legal, states being slapped down when they try to change that) is what gets kept. No nation that's lasted longer than a game of D&D can sustain a political environment where some random idiot not knowing offhand the reasoning for a policy results in it being struck down.
 
2012-09-21 03:07:48 PM

canyoneer: The two parties are the government, and now they have unlimited cash from private and corporate sources to maintain their iron grip on the government.


Riiight. You've got a pretty low threshold for what increases the power of government. I had Wendy's for lunch today, and that probably increases the power of government.

Those third parties were getting pretty close to breaking their grip before the ruling.
 
2012-09-21 03:11:35 PM

GAT_00: In other news, there are still people who don't know that Scalia decides cases before they are heard based on GOP politics, not the Constitution.


Exactly. Anyone who hasn't read the MK Ultra Comparative Brain Surveillance reports for Scalia and Kennedy can just google them.

It's right there in black and white, people!
 
2012-09-21 03:14:12 PM
All of Scalia's decisions depend on the amount of oral suction that Clarence Thomas applies to his wrinkled scrotum as he ponders the case.
 
Ehh
2012-09-21 03:15:49 PM
Posner coauthored his review with esteemed colleague N. S. Sherlock. Scalia, predictably, called the review a lie and offered 57 reasons why he is so right and Posner is just talkin' shiat.
 
2012-09-21 03:17:47 PM

Cyberluddite: Cyberluddite: cman: One could say that every SCOTUS judge does the same
One could say it, but it would not be correct.

FTFM. Dammit, I can't type today.


No, you were right the first time.

It would be ludicrous to suppose that any Supreme Court justice doesn't have preconceived notions, and that they *NEVER* start from a position and search for legal support for it. To say otherwise is akin to saying the Atlantic Ocean is wet, but not the Pacific.
 
2012-09-21 03:19:12 PM
blogs.windward.net
Mr Scalia, you use your tongue prettier than a twenty dollar whore.
 
2012-09-21 03:19:57 PM

hillbillypharmacist: canyoneer: Everyone keeps complaining about partisans on the SCOTUS, but in recent years SCOTUS has been perfectly consistent (with one notable exception): It always rules to increase the power of government, whether that ruling pleases liberals or conservatives or neither.

Did Citizens United increase the power of government?


Depends on your definitions of government. If you define it as people of wealth and influence who feel they are above the hoi paloi (i.e not covered in shait), and feel that their situation of life has ennobled them (as if a watery tart flung a sword at them), then yes, yes it did. It made money a more effective weapon for the ruling class.

i.imgur.com

/now you see the violence inherent in the system!
 
2012-09-21 03:36:55 PM
Honest question:

Is Antonin Scalia the worst Supreme Court judge we have ever had?
 
2012-09-21 03:37:47 PM

Vlad_the_Inaner: Depends on your definitions of government. If you define it as people of wealth and influence who feel they are above the hoi paloi (i.e not covered in shait), and feel that their situation of life has ennobled them (as if a watery tart flung a sword at them), then yes, yes it did. It made money a more effective weapon for the ruling class.


The ruling class isn't the government. And entrenchment of the ruling class doesn't necessarily increase the government's power.

You might make the argument that this entrenchment makes it more likely in the future for the government to gain more power, but that's a prediction and not a chain of logic. And it's not like the ruling class hasn't had more power in the past. They certainly have.
 
2012-09-21 03:38:00 PM

Dr Dreidel: And - wouldn't you know it? - the Framers agree with Scalia 100% of the time!


Or more appropriately, the Framers agreed with "the Framers" 100% of the time!
 
2012-09-21 03:42:24 PM

Scorpitron is reduced to a thin red paste: Honest question:

Is Antonin Scalia the worst Supreme Court judge we have ever had?


James McReynolds was a pretty big asshole. He didn't speak to Louis Brandeis for three years because he despised the idea of a Jew on the Supreme Court.
 
2012-09-21 03:53:01 PM

Bashar and Asma's Infinite Playlist: Scorpitron is reduced to a thin red paste: Honest question:

Is Antonin Scalia the worst Supreme Court judge we have ever had?

James McReynolds was a pretty big asshole. He didn't speak to Louis Brandeis for three years because he despised the idea of a Jew on the Supreme Court.


Oh, and wasn't McReynolds responsible for that abortion of a decision in US v. Miller? You know the one where Miller was already missing, and his lawyer didn't show up to argue for lack of money, so only the government got to present their case, but they decided to rule on the issue anyway, and came up with a ruling so vague that we were still arguing about it's meaning nearly 70 years later?
 
2012-09-21 04:02:00 PM
7th Circuit WHAT!!!! Posner is the shiattttt!
 
2012-09-21 04:02:02 PM
I really enjoyed Posner's response email, referenced in the link.

I said that "when he [Justice Scalia] looks for the original meaning of eighteenth-century constitutional provisions-as he did in District of Columbia v. Heller, holding that an ordinance forbidding people to own handguns even for the defense of their homes violated the Second Amendment-Scalia is doing legislative history."...

I had indicated what I meant by legislative history when I had said that in seeking the original eighteenth-century meaning of the text of the Second Amendment Justice Scalia had been doing legislative history. His quest for original meaning had taken him to a variety of English and American sources from which he distilled the existence of a common law right of armed self-defense that he argued had been codified in the Second Amendment...

Even if I accepted Scalia's narrow definition of "legislative history" and applied it to his opinion in Heller, I would not be telling a "lie." For Justice Scalia does discuss the "drafting history" (legislative history in its narrowest sense) of the Second Amendment. See 554 U.S. 598-599, 603-605...

So I would not have been lying, or even mistaken, had I said in my book review that in Heller Scalia "actually resorts" to "legislative history" in its narrowest sense ("drafting history").


i've liked posner for a while. i don't really read too many of his opinions, but the I've appreciated the few that I have.

scalia's more of a brute donning the mask of a smarty pants. i remember these douchebags in philosophy classes. pretending to be the smartest of the bunch, but really only proving to be the loudest.

/ subby... it was my first ever.
 
2012-09-21 04:03:23 PM
Maybe Posner will get called up to the big leagues if Obama wins. A brilliant guy.
 
2012-09-21 04:06:37 PM

RexTalionis: I'm with Posner on this. Scalia is not exactly consistent by any means. He'll come to a conclusion ahead of time and spend the rest of his time torturing logic (sometimes) to nudge the decision in line with his conclusion.


Yes, absolutely, but Posner's actually wrong on this one when he says Scalia was using "legislative history":
Scalia: "Any legal audience knows what legislative history is. It's the history of the enactment of the bill. It's the floor speeches. It's the prior drafts of committees. That's what legislative history is. It isn't the history of the times."
Posner: "Here is the definition of the term In Black's Law Dictionary (9th ed. 2009)...: 'The background and events leading to the enactment of a statute, including hearings, committee reports, and floor debates.' The 'background and events leading to the enactment' of the Second Amendment are the focus of the Heller opinion."

While Posner is right that Scalia looked to the background and events in the decades prior to the second amendment, they aren't part of the legislative history of that amendment. I think Posner is misreading the definition in Black's. When a definition names several examples, it's an error to extend that definition to situations unrelated to those examples: "background and events leading to the enactment of a statute, including hearings, committee reports, and floor debates" may be extended to include draft versions, panel discussions, ballot questions, etc., but not "case law that occurred 20 years previously in another country".
 
2012-09-21 04:07:37 PM
Holmes? Sherlock Holmes?

No shiat
 
2012-09-21 04:12:07 PM

dittybopper: Cyberluddite: Cyberluddite: cman: One could say that every SCOTUS judge does the same
One could say it, but it would not be correct.

FTFM. Dammit, I can't type today.

No, you were right the first time.

It would be ludicrous to suppose that any Supreme Court justice doesn't have preconceived notions, and that they *NEVER* start from a position and search for legal support for it. To say otherwise is akin to saying the Atlantic Ocean is wet, but not the Pacific.


But if two objects both contain some moisture, if one is 10% moisture by mass while the other is 90% moisture by mass, it could be defensible to refer to the former as dry and the latter as wet. Your analogy only applies if every SCOTUS judge is equally likely to pre-judge a case based on preconceived notions, to the same degree that the Atlantic and Pacific oceans are equally wet.

Supposing that any judge contains 0% moisture is indeed ludicrous, but so is the implication that all judges must therefore contain indistinguishable levels of moisture such that one cannot be called wet while another is called dry.

/this is how I roll
//rhetorical metaphors outta control
 
2012-09-21 04:12:26 PM
According to Posner, Scalia looked to English and American sources to find a common law right of armed self-defense that was codified in the Second Amendment. In his view, he wrote in the response provided to Reuters, that's legislative history.

Common law is not written by legislatures, by definition. It's not legislation. That you have a right to self-defense is common law. A legislature may codify it, or define it, either broadening it or (more likely from a historical perspective) narrowing it, but that doesn't make the underlying common law right legislation.

Sounds to me more like Posner used an inartful expression, and Scalia called him on it. Neither is 100% right, nor 100% wrong.
 
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