Do you have adblock enabled?
If you can read this, either the style sheet didn't load or you have an older browser that doesn't support style sheets. Try clearing your browser cache and refreshing the page.

(Yahoo)   Justice Scalia: It is easy to make the right decision on the Supreme Court if you invent your own reality   (news.yahoo.com) divider line 212
    More: Asinine, Scalia, supreme courts, federal benefits, 38th state, United States federal courts, left-wing politics, Chief Justice John Roberts, abortions  
•       •       •

9522 clicks; posted to Main » on 05 Oct 2012 at 11:44 AM (2 years ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



212 Comments   (+0 »)
   
View Voting Results: Smartest and Funniest

Archived thread

First | « | 1 | 2 | 3 | 4 | 5 | » | Last | Show all
 
2012-10-07 05:27:42 PM  

Theaetetus: As I said before, that's not what I was arguing about. What I was arguing had specifically to do with how substantive due process is applied under the fourteenth amendment and whether the drafters intended for the doctrine to be applied in the same way as it was applied to the fifth amendment.


Fine. Scalia's argument is essentially "You can tell the drafters of the 14th Amendment didn't intend it to apply to anti-sodomy laws specifically or gay rights generally, because anti-sodomy laws were common at the time the 14th Amendment was passed, and under the "clear statement rule" if the 14th Amendment was intended to apply to those things they would have said so clearly."

Your argument is "The drafters of the 14th Amendment intended the due process clause of the 5th Amendment to be applied exactly the same as the 5th Amendment."

Scalia would concede that you are correct, and also would note that your contention actually helps his position that it was never intended to apply to gay rights or sodomy laws.

The people who wrote the 14th intended it to be applied the same as the 5th. It's clear that the writers of the 5th also didn't intend for it to apply to anti-sodomy laws, for the exact same reason it's clear the writers of the 14th amendment didn't. Sodomy was illegal at the adoption of the 5th, was in fact illegal going all the way back to the 1500s, and there is no indication anywhere in the historical record that anyone ever thought the 5th Amendment should bar sodomy laws.

If your argument is that the due process clause in the 14th applies to the states exactly as the 5th amendment applies to the federal government, then now you still need to show that the 5th Amendment due process clause was intended (by the drafters) to apply to gay rights and sodomy laws. It's clear from the state of the law at the time that they did not.

This entire thread has been about whether or not Scalia is a hypocrite for finding that an originalist/textualist argument against the 14th Amendemnt covering gay rights is hypocritical. It isn't hypocritical, although it is possibly based on a misunderstanding of the state of the law at the time (as Kennedy's argument points out).

Throughout, it's been pretty clear (I think) that this is what the discussion is about. You're argument that the 14th Due Process was intended to be read the same as the 5th Due Process, while correct, is irrelevant unless you can show that the drafters of the 5th Due Process (or the courts that had interpreted the 5th Due Process prior the 14th Due Process being enacted) should have applied to gay rights or anti-sodomy laws. That's going to be impossible for you to do however, since it's generally accepted that the 5th Amendment due process clause didn't have *any* substantive component to it. The entire idea of 'substantive due process' wasn't even conceived of until years later.

In reality, your argument that the 14th Due Process should be interpreted exactly the same as the original meaning of the 5th Due Procese clause would result in an interpretation of that is even *more* narrow than Scalia's (Scalia excepts substantive due process on stare decisis grounds).

See generally: http://www.yalelawjournal.org/the-yale-law-journal/content-pages/the-o ne-and-only-substantive-due-process-clause/
 
2012-10-07 05:29:09 PM  
Doh, typo in the "Your argument . . . " line. Obviously I meant to say that you feel the DP clause of the 14th should be applies the same as the 5th.
 
2012-10-07 05:49:32 PM  

Because People in power are Stupid: (My misstakes in these statements are are as clear as yours if not as deliberately deceitful.)


There is nothing 'deceitful' about them. Scalia's opinions about gay rights and sodomy laws have absolutely no effect on the current state of the law. And frankly, the problem with the current state of the law is the past courts. Past courts should have found that unenumerated substantive rights (like the right to marry or the right to earn a living) were protected by the P&I clause, but they didn't (Slaughterhouse Cases). If you're interested in the history of the 14th's PorI clause, what it was intended to cover, and how badly the Court screwed it up, you can read all about it here. The Court also should have found that the equal protection clause applied to gay marriage rights and sodomy laws (they didn't, Baker v. Nelson). Scalia had nothing to do with those. Now, what's left is to try to shoehorn gay rights into the protections provided by substantive due process, which is something it was never intended to do (as Scalia notes).

No one would happier than I would if the Supreme Court came in and overturned both of those cases. However, in general that's not what people in the legal community are arguing for. They're making a substantive due process argument, and that's what Scalia is responding to. Scalia, being an originalist, is making an argument about what the original public meaning of the 14th Amendment (or the 5th) likely was, and you can tell that it wasn't understood to cover those issues because those were the legal norms at the time.

Now, you can argue that Scalia is wrong about what the legal norms were at the time (as Kennedy does in Lawrence) or you can argue that the DP clause shouldn't be read in an originalist/textualist manner. But that's not what the subby or most of the posters in this thread were doing. Most of them (to the extent that they even understand what they're saying) are simply arguing that he's an inconsistent hypocrite, which he's not (at least not on this issue, he is on commerce clause issues, but that's a topic for another thread).
 
2012-10-07 08:27:57 PM  

Talondel: tekmo: Aw, horseshiat. If the authors intended the amendment to apply exclusively to negros or redheads or lefties, they would have said so. The authors deliberately chose the very broad terms "citizen" and "person."

Yes, but they also chose the words "due process" "equal protection" and "privileges and immunities" which had specific meanings of their own. As I said, Scalia doesn't think that the 14th Amendment doesn't apply because of limited definitions of 'citizen' or 'person' it's because of the limited definitions of those other phrases. The two that should most clearly apply to gay rights are "equal protection" and "privileges and immunities." Unfortunately, those two issues were decided well before Scalia was on the Court. The P & I clause was all but written out of the 14th Amendment in the Slaughterhouse Cases 83 U.S. 36 (1873). The Court upheld a decision that sexual orientation was not a protected class in Baker v. Nelson 409 U.S. 810 (1972). Scalia had nothing to do with those decisions.

tekmo: Yes, I know Scalia believes the only Americans who possess fundamental rights are white males

Again, as I already said, it has nothing to do with his belief about *who* has fundamental rights, and everything to do with what he (mistakenly) believes regarding what the people who passed the 14th Amendment would have said about gay rights.

Because People in power are Stupid: whatever I say is wrong.

Yes, the answer is C. Everything you've said is wrong. Glad we can agree on that much.

Keizer_Ghidorah: fark that noise. They're still American citizens and deserve all the rights and freedoms other American citizens have. His interpretation shows what a narrow-minded asshole he is.

See above.


No. Fark him. They're American citizens. This is America. They deserve everything other American citizens get. He can interpret anything however he wants, there's only one moral and correct way to see it, and that is letting gays have the same rights and freedoms as all other people living in this country. Punishing them for loving people of the same gender is a spit in the face to intelligence, decency, and humanity.
 
2012-10-07 09:23:13 PM  

Talondel: Scalia's opinions about gay rights and sodomy laws have absolutely no effect on the current state of the law


That is a distortion. The Supreme Court picks and chooses which arguments they hear. Scalia and members of the conservative wing will issue a writ of certiorari on cases that they feel will have as much "conservative" ideological impact as possible. So they are free to pick the cases that they feel will do the country as much harm as they can -like Citizens United.

Talondel: Now, you can argue that Scalia is wrong about what the legal norms were at the time (as Kennedy does in Lawrence)


No, Scalia is deliberately wrong. He may know that his reasoning may be challenged but he has an agenda -he writes his justification after considering his conservative goals.

If you want any case that highlights Scalia's breech of his judicial oath of impartiality. Look no further than Bush V Gore.
 
2012-10-08 12:02:00 AM  

Keizer_Ghidorah: No. Fark him. They're American citizens. This is America. They deserve everything other American citizens get. He can interpret anything however he wants, there's only one moral and correct way to see it, and that is letting gays have the same rights and freedoms as all other people living in this country. Punishing them for loving people of the same gender is a spit in the face to intelligence, decency, and humanity.


Once again, that's an equal protection argument, not a substantive due process argument. Ideally the rights of gay people to marry would have been protected under the equal protection clause, but unfortunately that issue was settled before Scalia ever got to the court.

Regarding your view that there is only one moral and correct way to interpret the 14th Amendment, that's your opinion and your entitled to it. There are certainly a number of scholars and jurists who believe that the Constitution should be interpreted to mean whatever you think it should mean in light of current morals and views. However, there are others that believe the entire point of writing down laws and constitutions is to have them interpreted to mean what the drafters intended for it to mean when they wrote it down, even if what they wrote is morally repugnant to a majority of people currently living (in that circumstance, the correct remedy is to amend the Constitution, not to have judges simply start interpreting it differently). The Constitution has an amendment process for a reason, and that's to prevent it from being altered by the whims of whoever currently holds a majority view (no matter what branch that majority comes from).

No one thinks that a simple Congressional majority should be able to rewrite the Constitution, but for some reason people think it's not just acceptable but required for a simple majority of the Judiciary to do the same thing. I wonder if people we be so in favor of judicially created rights, if it was a typically 'conservative' right at issue (such as the right to work) rather than a typically conservative issue? Would you support the Court if they suddenly decided that you do have a right to work, and overturned the Slaughterhouse Cases (which would have the practical effect of banning most state employment regulations and occupational licensing requirements).

Oh, and since some people seem set on turning this into a partisan issue. (

Because People in power are Stupid: Scalia and members of the conservative wing

) I guess it needs to be noted that the court that refused to apply equal protection to gay rights back in 1972 was a court that was dominated by liberals such as William Brennan, William Douglas, Hugo Black, Byron White, and Thurgood Marshall. They dismissed the case outright, having the effect of making the lower circuit court opinion a binding precedent on all circuit courts to this day. That court is the real reason that gay rights cases have difficulty getting any traction, but for some reason I don't see liberals hurling contempt at them the way they do at Scalia.

But please feel free to enlighten me with more talk about how Citizens United was a politically motivated partisan decision, despite the fact that the ACLU and the AFL-CIO both filed briefs supporting the position the court eventually took.

Because People in power are Stupid: Bush V Gore.


Every partisan hack's favorite case. The three conservatives and the two moderates all voted for Bush, the four liberals all voted for Gore, but somehow it's only the conservatives who were acting like partisan assholes, despite the fact that the dissenters all admit that what Gore has asked for was unconstitutional. Bottom line on BvG, if Gore wanted every vote counted, than he should have adopted a policy that would have resulted in every vote being counted. Instead he decided to ask for recounts only in districts where it benefited him. That's a clear violation of the Court's precedents which held that whatever vote counting procedure a state uses, is must apply them equally to all votes cast.

The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another. Bush v. Gore, citing Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966)

Even the dissenting opinions in BvG agreed with that. The dissenters wanted the court to grant Gore a remedy that Gore himself had never asked for, which was to allow for a hand recount in the entire state.

And while I'm happy to educate you on CU and Bush V. Gore, if you don't mind I would prefer to limit this conversation to Scalia's Due Process jurisprudence, which is what we started off on.
 
2012-10-08 09:56:54 AM  

Talondel: I guess it needs to be noted that the court that refused to apply equal protection to gay rights back in 1972 was a court that was dominated by liberals such as William Brennan, William Douglas, Hugo Black, Byron White, and Thurgood Marshall.


Wow, I mean just wow. What a farkin' shill. Why not go back to the Dread Scott decision? Oh, how did they ever reverse these terrible democrat decisions?

Talondel: the ACLU and the AFL-CIO both filed briefs



Here is some news for you idiot: the ACLU and the AFL-CIO are not "liberal" organizations. It's been named so by conservatives like yourself who paint everything as a false dichotomy between Conservatives and Liberals. It's not. "Liberals" have their own agenda and both the ACLU (civil rights) and the AFL-CIO (unions) have their own agenda.

Talondel: Bush V Gore.

Every partisan hack's favorite case.


Then it should be YOUR favorite case since you are a right wing shill.


Talondel: The three conservatives and the two moderates all voted for Bush, the four liberals all voted for Gore,


Another lie. There were no "LIBERALS" on the Supreme court at the time.

And more to point (as right wing shills like to get off topic) Scalia's memory on the subject is faulty.

http://readersupportednews.org/news-section2/341-193/10417-scalia-re wr ites-history-of-bush-v-gore-decision


So once again you have shown yourself to be nothing more than a conservatively biased shill willing to spin facts to suit some half baked political theories and defend your hero Scalia. 
Talondel:

And while I'm happy to educate you on CU and Bush V. Gore,

Here's your homework since you volunteered to "educate me": Read the dissenting opinions and tell me how those opinions are "Liberal". Yes, I know you said you want to limit it to defense of your hero, but you made the statement so prove it.
 
2012-10-08 11:35:31 AM  

Because People in power are Stupid: Wow, I mean just wow. What a farkin' shill. Why not go back to the Dread Scott decision? Oh, how did they ever reverse these terrible democrat decisions?


Of course the Court is free to overturn its previous decisions. That's not the point. The point is that, so far as equal protection arguments go, they aren't currently making it to the Supreme Court because they all get shot down in the Circuit Courts, because the issue was already decided 40 years ago by 'liberals' like Thurgood Marshall (please feel free to add him to your list of Justice's that aren't actually liberal, if that makes you feel better). Scalia's comments aren't addressing the equal protection arguments, only the substantive due process arguments. Eventually, when those cases get back to the Supreme Court the Equal Protection and P&I arguments will come back up, but for now they're settled issues.

Because People in power are Stupid: by conservatives like yourself


I've openly come out in favor of abortion, drugs, gay marriage, and against anti-sodomy laws in this very thread, and that makes me a 'conservative' in your view? You either have a very weird world view, or you're a complete moron. I'll leave it to anyone who is still reading this thread to make that decision for themselves. Here's a tip for you: just because I believe in gay rights, love abortions, and wish that all drugs were legal, doesn't mean that I believe they are protected by the Constitution. Some rights, such as those described above, must be won not through the courts but through the political process. That means voting for people who will not infringe those rights, which (almost always) means voting Democrat. Please feel free to educate me about how people who vote Democratic aren't "really" liberal, just like Justices who consistently support liberal positions aren't "really" liberal. You ignorant twatwaffle

Because People in power are Stupid: Another lie. There were no "LIBERALS" on the Supreme court at the time.


Well, the answer to my previous question about your mental capacity is getting a little more clear. Please educate me as to the political leanings of Justice Stevens, Souter, Ginsberg, and Breyer, who were referred to universally by legal scholars throughout the land as the "liberal wing" of the Supreme Court at the time and still are to this day. I'm sure you know better than they do who is "really" liberal and conservative on the court. For fark's sake, you sound like those Republicans who go around claiming that Roberts isn't a 'real' conservative because he voted to uphold the individual mandate, and you appear to be every bit as ignorant of the Court's workings as they are.

Because People in power are Stupid: Here's your homework since you volunteered to "educate me": Read the dissenting opinions and tell me how those opinions are "Liberal". Yes, I know you said you want to limit it to defense of your hero, but you made the statement so prove it.


I didn't state the the opinions were liberal. Go back and read. I said the liberals (meaning the four liberal justices just described) all voted for Gore, and their opinions were all obviously in error because they all admitted that what Gore asked for was an unconstitutional denial of equal protection or due process, but they would choose to ignore that and grant Gore a remedy he had never asked for (a total hand recount of all votes in Florida). Here are the relevant portions where they admit that:

Petitioners have raised an equal protection claim (or, alternatively, a due process claim, see generally Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)), in the charge that unjustifiably disparate standards are applied in different electoral jurisdictions to otherwise identical facts. It is true that the Equal Protection Clause does not forbid the use of a variety of voting mechanisms within a jurisdiction, even though different mechanisms will have different levels of effectiveness in recording voters' intentions; local variety can be justified by concerns about cost, the potential value of innovation, and so on. But evidence in the record here suggests that a different order of disparity obtains under rules for determining a voter's intent that have been applied (and could continue to be applied) to identical types of ballots used in identical brands of machines and exhibiting identical physical characteristics (such as "hanging" or "dimpled" chads). See, e.g., Tr., at 238-242 (Dec. 2-3, 2000) (testimony of Palm Beach County Canvassing Board Chairman Judge Charles Burton describing varying standards applied to imperfectly punched ballots in Palm Beach County during precertification manual recount); id., at 497-500 (similarly describing varying standards applied in Miami-Dade County); Tr. of Hearing 8-10 (Dec. 8, 2000) (soliciting from county canvassing boards proposed protocols for determining voters' intent but declining to provide a precise, uniform standard). I can conceive of no legitimate state interest served by these differing treatments of the expressions of voters' fundamental rights. The differences appear wholly arbitrary.

Stevens' Dissent

Admittedly, the use of differing substandards for determining voter intent in different counties employing similar voting systems may raise serious concerns. . . Even assuming that aspects of the remedial scheme might ultimately be found to violate the Equal Protection Clause, I could not subscribe to the majority's disposition of the case. Souter's Dissent

The majority's third concern does implicate principles of fundamental fairness. Breyer's Dissent

Again, the bottom line in Bush v. Gore, thay all 9 Justices agreed on, was that the recount Gore had requested was a violation of Equal Protection principles. If Gore really cared about counting every vote, he should have asked that every vote be counted, instead of asking that only the districts favoring him be recounted. Gore and his advisers have admitted that mistake since. But I'm sure you know better than Gore does what really happened. The only difference between the justices is that some believed that meant the recount should be halted, and others believed that the recount should be extended so that all the votes could be recounted in the same way.
 
2012-10-08 11:53:16 AM  

Talondel: I've openly come out in favor of abortion, drugs, gay marriage, and against anti-sodomy laws in this very thread


Douchy, you come out in favor of these things to appear to be a moderate. When you say things like:

Talondel: The three conservatives and the two moderates all voted for Bush, the four liberals all voted for Gore, but somehow it's only the conservatives who were acting like partisan assholes


You reveal yourself as the farking partisan shill that you are. Not educated, not snarky, not smart and funny - a partisan shill.
 
2012-10-08 01:57:24 PM  

Because People in power are Stupid: You reveal yourself as the farking partisan shill that you are. Not educated, not snarky, not smart and funny - a partisan shill.


i5.photobucket.com

i5.photobucket.com
 
2012-10-08 09:24:29 PM  

Talondel: Because People in power are Stupid: You reveal yourself as the farking partisan shill that you are. Not educated, not snarky, not smart and funny - a partisan shill.

[i5.photobucket.com image 252x342]

[i5.photobucket.com image 400x277]


Yeah douche, you seem to have a pattern of shilling for Catholic Conservatives.

So the Catholic Church deems homosexual marriage to be a sin. Are you ready for excommunication?

Talondel: I support gay marriage, support laws banning workplace discrimination


Why don't you bring this up with your Catholic Buddies? Or is it more likely that you say things like that in order to soften your image to appear as you call it "liberal" with serious pro-catholic dictatorship leanings.
 
2012-10-08 09:45:02 PM  

Talondel: Keizer_Ghidorah: No. Fark him. They're American citizens. This is America. They deserve everything other American citizens get. He can interpret anything however he wants, there's only one moral and correct way to see it, and that is letting gays have the same rights and freedoms as all other people living in this country. Punishing them for loving people of the same gender is a spit in the face to intelligence, decency, and humanity.

Once again, that's an equal protection argument, not a substantive due process argument. Ideally the rights of gay people to marry would have been protected under the equal protection clause, but unfortunately that issue was settled before Scalia ever got to the court.

Regarding your view that there is only one moral and correct way to interpret the 14th Amendment, that's your opinion and your entitled to it. There are certainly a number of scholars and jurists who believe that the Constitution should be interpreted to mean whatever you think it should mean in light of current morals and views. However, there are others that believe the entire point of writing down laws and constitutions is to have them interpreted to mean what the drafters intended for it to mean when they wrote it down, even if what they wrote is morally repugnant to a majority of people currently living (in that circumstance, the correct remedy is to amend the Constitution, not to have judges simply start interpreting it differently). The Constitution has an amendment process for a reason, and that's to prevent it from being altered by the whims of whoever currently holds a majority view (no matter what branch that majority comes from).

No one thinks that a simple Congressional majority should be able to rewrite the Constitution, but for some reason people think it's not just acceptable but required for a simple majority of the Judiciary to do the same thing. I wonder if people we be so in favor of judicially created rights, if it was a typically 'conservati ...


Blah blah blah, we get it, you're not for equal rights for everyone, Scalia is perfectly correct in keeping them as sub-human. You're not worth talking to anymore.
 
Displayed 12 of 212 comments

First | « | 1 | 2 | 3 | 4 | 5 | » | Last | Show all

View Voting Results: Smartest and Funniest


This thread is archived, and closed to new comments.

Continue Farking
Submit a Link »
Advertisement
On Twitter





In Other Media


  1. Links are submitted by members of the Fark community.

  2. When community members submit a link, they also write a custom headline for the story.

  3. Other Farkers comment on the links. This is the number of comments. Click here to read them.

  4. Click here to submit a link.

Report