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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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1749 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.
 
2012-09-21 04:14:52 PM

dittybopper: 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.


Yeah, or rather, Posner called out Scalia for being a hypocrite and Scalia said "you used the wrong term, so Fartbongo is exiled and Sarah Palin is our Empress."
 
2012-09-21 04:17:41 PM

SpaceButler:
/this is how I roll
//rhetorical metaphors outta control


Girl, check my oratory,
ha ha, I expound!
 
2012-09-21 04:17:48 PM

Theaetetus: "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".


quoting pute kisses a man [that's me] quoting posner's reply email to this nonsense:

pute kisses like a man: 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").

 
2012-09-21 04:18:51 PM

pute kisses like a man: quoting pute kisses a man [that's me] quoting posner's reply email to this nonsense:


fark, i don't even know my own stupid name, just made myself gay instead of childish. nttawwt.
 
2012-09-21 04:26:34 PM

Theaetetus: SpaceButler:
/this is how I roll
//rhetorical metaphors outta control

Girl, check my oratory,
ha ha, I expound!


When I click on the thread, this is what I see:
Ev'rybody typin' while nobody reads
I got logic in my brain and I ain't afraid to show it

I'm arguing on the internet and I know it
 
2012-09-21 04:28:08 PM

pute kisses like a man: quoting pute kisses a man [that's me] quoting posner's reply email to this nonsense:

pute kisses like a man: 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").


... but, if you actually go to 598 or 603, you find that Scalia is merely responding to the discussion of the drafting history in Steven's dissent. I don't think that counts. Otherwise, you'd say something like "I dissent, because aliens," and if the majority says "the dissent's reference to aliens is misplaced and unsupported," you could then say "ha, the majority discusses aliens! They're clearly insane!"
 
2012-09-21 04:30:16 PM

SpaceButler: Theaetetus: SpaceButler:
/this is how I roll
//rhetorical metaphors outta control

Girl, check my oratory,
ha ha, I expound!

When I click on the thread, this is what I see:
Ev'rybody typin' while nobody reads
I got logic in my brain and I ain't afraid to show it

I'm arguing on the internet and I know it


25.media.tumblr.com
 
2012-09-21 04:34:42 PM

Theaetetus: SpaceButler: Theaetetus: SpaceButler:
/this is how I roll
//rhetorical metaphors outta control

Girl, check my oratory,
ha ha, I expound!

When I click on the thread, this is what I see:
Ev'rybody typin' while nobody reads
I got logic in my brain and I ain't afraid to show it

I'm arguing on the internet and I know it

[25.media.tumblr.com image 500x279]


that's the best thing I've ever seen. i hope this gets more play in politics threads
 
2012-09-21 04:37:42 PM

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

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


According to Cass Sunstein's definition of judicial activism (defined as the frequency which judges overrule the decisions of federal regulatory agencies), Scalia engages in the most judcial activism on the Court. At least that was the conclusion drawn from the period from 1989-2005.
 
2012-09-21 04:49:33 PM

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

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

According to Cass Sunstein's definition of judicial activism (defined as the frequency which judges overrule the decisions of federal regulatory agencies), Scalia engages in the most judcial activism on the Court. At least that was the conclusion drawn from the period from 1989-2005.


Ironic, considering "judicial review" was not originally assumed to be part of the Framers' intent in the first place. That's what Marbury v. Madison was all about.

// could Scalia find a Constitutional reason for overturning that?
 
2012-09-21 04:52:08 PM

SpaceButler: 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.


Did you not listen to oral arguments in Heller? It was pretty plain who was hostile to the idea of an individual right and who wasn't right from the get-go. There were only a couple of enigmas.
 
2012-09-21 05:11:10 PM

Dr Dreidel: Ironic, considering "judicial review" was not originally assumed to be part of the Framers' intent in the first place. That's what Marbury v. Madison was all about.


On the contrary... John Marshall was one of the Framers, so it can't have been contrary to his intent. Furthermore, Marbury explicitly notes that judges had determined laws to be unconstitutional as far back as 1792.
 
2012-09-21 05:12:35 PM

dittybopper: SpaceButler: 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.

Did you not listen to oral arguments in Heller? It was pretty plain who was hostile to the idea of an individual right and who wasn't right from the get-go. There were only a couple of enigmas.


Amusingly, many of the same people who believe that gun ownership is an individual right believe that marriage is only a collective right, and vice versa.
 
2012-09-21 05:20:06 PM
He sounds like the Armond White of jurists. It's actually quite transparent when you read it.
 
2012-09-21 05:35:44 PM

dittybopper: Did you not listen to oral arguments in Heller? It was pretty plain who was hostile to the idea of an individual right and who wasn't right from the get-go. There were only a couple of enigmas.


No, I can't say I did. I wouldn't be remotely surprised to find that there are cases showing at least apparent bias on the part of each SCOTUS judge, but whether all of them do so equally commonly overall is another question.

I posted because it seemed to me that you were taking the other poster's words in a more strict and literal sense than intended -- that he was using an inexact but colloquially common phrasing to say that Scalia is much more likely than the other judges to rule in that fashion, and in your response, you used a stricter interpretation to infer that he meant the other judges never rule in that fashion.

I don't know nearly enough about the SCOTUS judges to have an opinion worth listening to on their relative biases, and I'm quite interested to read comments on that from people who do know more, especially with specific arguments and references I can go read up on. So I made a clumsy attempt to nudge the discussion away from what seemed like a semantic disagreement and back to the issue I wanted to hear more about. I didn't mean to support either side of that issue in the process.

I'll go look for transcripts of the oral arguments from Heller, but in the meantime it reminds me of an argument I've seen before: that in cases about major issues of the day, it's quite likely that the judges would have already thought and perhaps read about the issue in detail long before the case was ever brought, and thus formed reasonable and well-researched opinions already. Do you think that could be a reasonable explanation for apparent bias in Heller?
 
2012-09-21 05:44:04 PM
Scalia believes that mere actual innocence is no reason not to execute a wrongly convicted man. He believes it's perfectly fine to strap an innocent man to a gurney and inject him with chemicals that will end his life. (OK, maybe regrettable, but legal.) The only legitimate conclusion is that he's a worthless human being.
 
2012-09-21 05:51:00 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.


I'd actually have more respect for him if he would just come out and say, "I do have my own particular immutable biases and I will basically use whatever rhetoric or argument necessary to rule according to them. These are quite public and well known and I make no apology for them." He's actually come pretty close to this but still maintains the fiction (maybe he actually does partly believe this?) that he is actually doing pure jurisprudence.

What are they going to do, fire him?
 
2012-09-21 07:06:18 PM

dittybopper: and that they *NEVER* start from a position and search for legal support for it.


The difference between Scalia and a responsible Justice is that a responsible Justice doesn't stop after finding support for the starting position--the Justice also entertain the notion that their initial position is wrong and search for support for each contrary position. They at least make an honest attempt at approaching a problem detachedly and objectively. Scalia's rulings, in combination with his public behavior outside of his official duties, do not suggest that he makes such attempts.
 
2012-09-21 07:07:42 PM

Flaming Yawn: 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.

I'd actually have more respect for him if he would just come out and say, "I do have my own particular immutable biases and I will basically use whatever rhetoric or argument necessary to rule according to them. These are quite public and well known and I make no apology for them." He's actually come pretty close to this but still maintains the fiction (maybe he actually does partly believe this?) that he is actually doing pure jurisprudence.

What are they going to do, fire him?


It's not completely out of the realm of possibility that he would be impeached (successfully or otherwise) for such an admission.
 
2012-09-21 07:11:51 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.


Bingo.
 
2012-09-21 08:30:16 PM

SurfaceTension: 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.


I've heard that exactly the other way round, so I think there must be a different factor at work. I'd guess it's more like "I can be trusted to be left to my own devices, but the other guy needs to be regulated or he'll misbehave." Conservatives and liberals just differ in what they consider to be misbehavior.
 
2012-09-21 08:46:57 PM
I've never gone to law school, but it seems to me that Aristotle was wrong when he said, "The law is reason free from passion." Perhaps is works as a guideline rather than a rule, as in, 'be careful to not let your passions overwhelm your judgement,' but literally it doesn't work at all. Why do we desire justice in the first place if not through our passion?

Everyone knows that the law is imperfect, and requires human mediation and intervention to function properly. Police, Judges, etc., are all required to use their own judgement in individual cases, and they do. Scalia gets in trouble because he claims to be, as opposed of those Liberal justices, against doing a whole lot of that, but the reality is that he does just a much as anyone else. At the end of the day, all 9 people sitting on the Supreme Court realize that absolute constructionism would reveal a myriad of flaws, contradictions, impracticalities, and inconsistencies that would wreak havoc on our system. Thus, they have to interpret through their lens, and they all do. It's not ideal, but what is?

/Would probably consider Law School if it were cheaper and the job market weren't hopelessly oversaturated.
 
2012-09-21 08:55:57 PM
Scalia has always been right wing, but I honestly think his arteries have been hardening. I used to watch him on the PBS series Ethics in America. He had a good mind, and he didn't wrap his thinking around to get to some pre-drawn conclusion. He actually used reason based on principle.

That man is gone. I think he has turned into a crank, and I honestly do believe that there is a physical reason for this change. And, exactly what happens in the case where a Supreme Court Justice suffers from dementia or other brain issues? I don't think there's a way to remove them if they won't go voluntarily, is there?

/And you should check out Ethics in America. It's available for free on demand.
 
2012-09-21 09:02:59 PM

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

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


I don't know, as far as pure evil goes I don't think anything Scalia has done can hold a candle to the Dred Scott decision. Roger Taney FTW
 
2012-09-21 09:30:59 PM
Scalia spoke at my law school once. My Fed Courts prof asked him about a recently decided case in which Scalia found that there was federal court jurisdiction despite what appeared to be contrary authority directly on point, from an opinion authored by (wait for it...) Justice Scalia. In his response - "We only have so many silver bullets, so we use them carefully" - he made clear that in his mind, federal jurisdiction lies in any case where he wants to reach the merits.

In my experience, most judges try to maintain an open mind. Certainly, we all have our prejudices and despite our best efforts those preconceptions will color our decisions, but most of us are wary of those prejudices and try to keep them under control to the extent it is possible. I have very little confidence, however, that Scalia even tries.
 
2012-09-21 11:01:00 PM

Theaetetus: Amusingly, many of the same people who believe that gun ownership is an individual right believe that marriage is only a collective right, and vice versa.


Interesting. So, I could make a lot of heads explode by claiming it's intuitively OBVIOUS that the two must either be both individual, or both collective, because...

Damn, not seeing a solid-seeming rationalization. Anyone? Bonus points if you can tie it to the "weights and measures" clause.
 
2012-09-21 11:43:22 PM

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

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

I don't know, as far as pure evil goes I don't think anything Scalia has done can hold a candle to the Dred Scott decision. Roger Taney FTW


Define "worst." Taney was a bad Justice, but (based on the actual opinion) he was mostly lazy and scared. He was afraid to rock the boat. Scalia is neither, and he knows his law inside out--he has to, to be able to twist it so finely to support his opinions.

Intelligent, active evil is much worse than lazy, dumb evil.
 
2012-09-22 12:40:04 AM

dittybopper: That you have a right to self-defense is common law



Wrong. It's a privilege and it's an affirmative defense to what's otherwise a crime.
 
2012-09-22 01:12:56 AM

JK47: dittybopper: That you have a right to self-defense is common law


Wrong. It's a privilege and it's an affirmative defense to what's otherwise a crime.


Defending oneself against lethal force is a right. It is derived from one of the most fundamental rights--the right to life. Without it, the right to life is meaningless. Like any right, it can conflict with other rights; do not expect self-defense to protect you if you assault someone in the first place. But it is most certainly a right, and, in its own way, the most important, as it is a person's last hope against the ultimate infringement.

Calling it a mere privilege denigrates all rights. If the intent was to say that there are no rights, then so be it, but to say that there are rights but that self-defense is not one of them borders on the ludicrous.
 
2012-09-22 01:15:29 AM

blahpers: JK47: dittybopper: That you have a right to self-defense is common law


Wrong. It's a privilege and it's an affirmative defense to what's otherwise a crime.

Defending oneself against lethal force is a right. It is derived from one of the most fundamental rights--the right to life. Without it, the right to life is meaningless. Like any right, it can conflict with other rights; do not expect self-defense to protect you if you assault someone in the first place. But it is most certainly a right, and, in its own way, the most important, as it is a person's last hope against the ultimate infringement.

Calling it a mere privilege denigrates all rights. If the intent was to say that there are no rights, then so be it, but to say that there are rights but that self-defense is not one of them borders on the ludicrous.


It may be a moral right, but LEGALLY it is merely an affirmative defense to what would otherwise be a crime.
 
2012-09-22 02:32:10 AM

Gyrfalcon: blahpers: JK47: dittybopper: That you have a right to self-defense is common law


Wrong. It's a privilege and it's an affirmative defense to what's otherwise a crime.

Defending oneself against lethal force is a right. It is derived from one of the most fundamental rights--the right to life. Without it, the right to life is meaningless. Like any right, it can conflict with other rights; do not expect self-defense to protect you if you assault someone in the first place. But it is most certainly a right, and, in its own way, the most important, as it is a person's last hope against the ultimate infringement.

Calling it a mere privilege denigrates all rights. If the intent was to say that there are no rights, then so be it, but to say that there are rights but that self-defense is not one of them borders on the ludicrous.

It may be a moral right, but LEGALLY it is merely an affirmative defense to what would otherwise be a crime.


If we're going to have the law square off with the right to not be killed, "legally" can go amend itself.
 
2012-09-22 11:56:35 PM

blahpers: Flaming Yawn: 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.

I'd actually have more respect for him if he would just come out and say, "I do have my own particular immutable biases and I will basically use whatever rhetoric or argument necessary to rule according to them. These are quite public and well known and I make no apology for them." He's actually come pretty close to this but still maintains the fiction (maybe he actually does partly believe this?) that he is actually doing pure jurisprudence.

What are they going to do, fire him?

It's not completely out of the realm of possibility that he would be impeached (successfully or otherwise) for such an admission.


I think it is effectively impossible since there needs to be a simple majority in the House to even pass articles of impeachment, and the Democrats would not be able to do that. Then the 2/3 of the Senate would have to convict and the Dems don't have that either.

I honestly can think of very few things heinous enough for Scalia to do to be actually removed from the bench.

In any case, perhaps he could sue to have his conviction overturned. Then the SCOTUS could hear the case and...oh, never mind.
 
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