Scalia Worries Me

[debrand]

http://www.huffingtonpost.com/2012/12/1 ... 74413.html

It's a form of argument that I thought you would have known, which is called the `reduction to the absurd,'" Scalia told Hosie of San Francisco during the question-and-answer period. "If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?"

To determine how illogical his argument is just replace the word, homosexuality with any other activity done by consenting adults that doesn't hurt anyone.

If we cannot have moral feelings against singing, can we have it against murder?

As Scalia often does in public speaking, he cracked wise, taking aim mostly at those who view the Constitution as a "living document" that changes with the times.

"It isn't a living document," Scalia said. "It's dead, dead, dead, dead."

How would this man decide cases on cloning or any other modern issue that the original constitutional writers couldn't imagine? Would he have voted against Dred Scott in the 1800's?

[Peas n carrots]

The good thing is he's up there in age. I doubt he'll be in there another 10 years. Let's hope that he steps down in the next 4 years so we have a good chance for a more liberal pick.

[RosyDaisy]

How is a consensual relationship or sexual act with a person of the same sex even remotely comparable to murder? Scalia makes absolutely no sense....none at all. He scares me too with that line of thinking.

[Maude]

I definitely would have pointed out that homosexuality harms no one, while murder clearly does. Not sure how that's difficult to grasp, but however. I swear, a roll of toilet paper is more intelligent than some of these folks in positions of power.

[dpndetfarm]

I definitely would have pointed out that homosexuality harms no one, while murder clearly does. Not sure how that's difficult to grasp, but however. I swear, a roll of toilet paper is more intelligent than some of these folks in positions of power.

The problem is not that Scalia is dumb. The problem is that he is actually quite intelligent. This makes him even more dangerous than he otherwise might be as a supreme court justice.

[gustava]

http://www.huffingtonpost.com/2012/12/10/antonin-scalia-book-tour-legal-writings-antigay_n_2274413.html

To determine how illogical his argument is just replace the word, homosexuality with any other activity done by consenting adults that doesn't hurt anyone.

How would this man decide cases on cloning or any other modern issue that the original constitutional writers couldn't imagine? Would he have voted against Dred Scott in the 1800's?

Yes, he would have voted against Dred Scot. As for other issues, he generally sides with the bigger of the two sides, and against the individual.

[ILoveJellybeans]

Why is gay sex anything like murder.

Murder is wrong because it kills people. Gay sex is awesome because it shows the love between two people, and it is a lot of fun for both of them.

[Austin]

Scalia should worry everyone.

[darareaksmey]

The good thing is he's up there in age. I doubt he'll be in there another 10 years. Let's hope that he steps down in the next 4 years so we have a good chance for a more liberal pick.

Fat chance, I fear. The man is committed to a certain view of jurisprudence and a certain opinion of how the country should be. He would not dare risk having SCOTUS tip over to the opposing view by leaving the bench in any condition other than cold and in a body bag.

[darareaksmey]

http://www.huffingtonpost.com/2012/12/10/antonin-scalia-book-tour-legal-writings-antigay_n_2274413.html

To determine how illogical his argument is just replace the word, homosexuality with any other activity done by consenting adults that doesn't hurt anyone.

How would this man decide cases on cloning or any other modern issue that the original constitutional writers couldn't imagine? Would he have voted against Dred Scott in the 1800's?

I"m not sure I agree that Dred Scott presented issues that were unimaginable to the framers of the Constitution. But that point aside, Scalia's view of the Constitution as "dead, dead, dead" is astonishing. It's one thing to be a small-government righty, but even small-government righties benefit sometimes from loosey-goosey interpretations of the Constitution. The Second Amendment is a prime example. If the federal government shouldn't even be considering things that weren't with the Framers scope of reference, then why do people want to expand the scope of that amendment to include assault rifles, a twentieth century invention? Why does it go beyond muskets and minie balls? No, the Constitution is alive when he and others like him want it to be.

[keeperrox]

Murder takes away someone's rights whether or not you find it morally wrong. Homosexuality does not. Therein lies the difference.

[Sprocket]

http://usnews.nbcnews.com/_news/2012/12 ... ments?lite

Wow. What a dick.

[Guest Anonymous]

I like this part:

Scalia said he is not equating sodomy with murder but drawing a parallel between the bans on both.

"I'm not equating them... I'm just drawing parallels between how they are treated." I am so using that some day! *skips off to find thesaurus*

[RachelB]

Fat chance, I fear. The man is committed to a certain view of jurisprudence and a certain opinion of how the country should be. He would not dare risk having SCOTUS tip over to the opposing view by leaving the bench in any condition other than cold and in a body bag.

The only thing I can think of other than death that would get him off the court is leaving to run for public office. I recently read that the way he's been talking about cases lately-- not just about his judicial philosophy, but actual cases that are likely to come before the court-- is more akin to the way that someone who's considering elected office would talk about such cases than it has been in the past.

[gustava]

Clarence Thomas is just as bad, if not worse.

[sriracha]

I'm hoping that here shortly the voices of the extremist religionists on the SCOTUS won't matter with Obama possibly having as many as four nominations. Ginsburg, Breyer, Scalia, and Kennedy are all half past seventy. The possibilities of retirements and natural deaths from old age are ever present at that point.

Scalia and Kennedy will hang on as long as possible even if they have to be wheeled into the chambers on gurneys. But because the GOP civil war will probably not come to any kind of conclusion by the time the next election comes, and they keep slowly marching themselves off the extremist cliff, the next president will probably also be a Democrat and will nominate more moderate judges after Scalia and Kennedy die.

That's what I think. GOP extremism on the SCOTUS does not have another decade left before it dies out.

[Austin]

Thomas is certainly more morally corrupt. I think Scalia is a true believer, however misguided. Thomas is a scumbag.

[LadyFriend]

Scalia also disagreed with Lawrence v. Texas. I think he sees sexuality as something dangerous and harmful to society, thus worthy of regulation. It's very much a religious point of view. Sex is dangerous and icky unless you are doing it exactly as the Catholic Church permits.

On a positive note, every time we have to read an opinion or dissent written by Scalia (I'm in my 2nd year of law school), there are collective groans from all the students. It is PAINFULLY obvious that many of his decisions are political or based on his own antiquated moral judgments. He is laughed at and thought of as a joke...a brilliant joke, but a joke. I also couldn't agree more that he is dangerous because of how smart he is. He can rationalize anything.

[LadyFriend]

Thomas is certainly more morally corrupt. I think Scalia is a true believer, however misguided. Thomas is a scumbag.

They are both awful. They represent and powerfully promote dying ideas of sexual (and other forms of) paternalism.

I do think that they are both true believers. I actually think that Thomas (claims to be a textualist) tends to stick more consistently to what his method of interpretation should yield regardless of outcome.

The real issue is that no schema for Constitutional interpretation works perfectly. Scalia's version of originalism is massively flawed (perhaps impossible in practice) and he knows/admits it. From the opinions I have read so far, however, Scalia seems more likely to twist his reasoning to fit his preconceived end-game than Thomas. It's manipulative and he's either blind to his own fault or a massive liar/manipulator. At this point I have a much lower opinion of Scalia than I do of Thomas (certainly not a fan of either).

[Austin]

They are both awful. They represent and powerfully promote dying ideas of sexual (and other forms of) paternalism.

I do think that they are both true believers. I actually think that Thomas (claims to be a textualist) tends to stick more consistently to what his method of interpretation should yield regardless of outcome.

The real issue is that no schema for Constitutional interpretation works perfectly. Scalia's version of originalism is massively flawed (perhaps impossible in practice) and he knows/admits it. From the opinions I have read so far, however, Scalia seems more likely to twist his reasoning to fit his preconceived end-game than Thomas. It's manipulative and he's either blind to his own fault or a massive liar/manipulator. At this point I have a much lower opinion of Scalia than I do of Thomas (certainly not a fan of either).

Besides Thomas' knuckle-dragging personal POV, I still believe Anita Hill, which is why I think he is character-wise, a scumbag. But I wouldn't argue that they are both bad.

[gimlet]

I'm hoping that here shortly the voices of the extremist religionists on the SCOTUS won't matter with Obama possibly having as many as four nominations. Ginsburg, Breyer, Scalia, and Kennedy are all half past seventy. The possibilities of retirements and natural deaths from old age are ever present at that point.

Scalia and Kennedy will hang on as long as possible even if they have to be wheeled into the chambers on gurneys. But because the GOP civil war will probably not come to any kind of conclusion by the time the next election comes, and they keep slowly marching themselves off the extremist cliff, the next president will probably also be a Democrat and will nominate more moderate judges after Scalia and Kennedy die.

That's what I think. GOP extremism on the SCOTUS does not have another decade left before it dies out.

Ginsburg's an interesting variable--she loves her work, but she does have some ill health and she is very strategic and might retire so Obama can replace her seat. Scalia will die on the bench. I'm cool with Kennedy and Breyer--they keep things interesting.

[LadyFriend]

Ginsburg's an interesting variable--she loves her work, but she does have some ill health and she is very strategic and might retire so Obama can replace her seat. Scalia will die on the bench. I'm cool with Kennedy and Breyer--they keep things interesting.

I love Ginsburg, but I have zero doubt she will retire during the next four years. Her health is bad and waiting could mean she could be locked in for another decade. She will definitely retire.

[Austin]

Ginsburg needs to retire. I love her POV, but pancreatic cancer is not one that people get to escape from in the long run, generally speaking, and especially someone in their late 70s. I think she has a responsibility to step down during the president's second term. Her sudden death under a republican administration could shape the court in a hard-right leaning way for a generation and leave a whole lot of us - women, minorities, etc., - completely fucked.

[darareaksmey]

The only thing I can think of other than death that would get him off the court is leaving to run for public office. I recently read that the way he's been talking about cases lately-- not just about his judicial philosophy, but actual cases that are likely to come before the court-- is more akin to the way that someone who's considering elected office would talk about such cases than it has been in the past.

Perhaps, but he has always been this way, not just recently. He has always flapped his gums on his own personal beliefs about constitutionality and the American polity. The time for him to run for office is well past. He knows he can have a lot more influence on the country right where he is than he could in an elective position, where he'd have a party organization in the way.

Judges are supposed to be discreet. This is one of many reasons I loathe him. He can't stop talking. He loves the sound of his own monotonous pronouncements too much.

[darareaksmey]

I'm hoping that here shortly the voices of the extremist religionists on the SCOTUS won't matter with Obama possibly having as many as four nominations. Ginsburg, Breyer, Scalia, and Kennedy are all half past seventy. The possibilities of retirements and natural deaths from old age are ever present at that point.

Scalia and Kennedy will hang on as long as possible even if they have to be wheeled into the chambers on gurneys. But because the GOP civil war will probably not come to any kind of conclusion by the time the next election comes, and they keep slowly marching themselves off the extremist cliff, the next president will probably also be a Democrat and will nominate more moderate judges after Scalia and Kennedy die.

That's what I think. GOP extremism on the SCOTUS does not have another decade left before it dies out.

I am not as optimistic. Of the four oldest justices you cite, Scalia ain't going anyplace; Breyer seems healthy and is generally a liberal voter anyhow (so his replacement by Obama would not result in a net gain for the liberal side of SCOTUS); and Ginsburg's replacement won't tip things in favor of the liberals either (though I do expect she will retire during Obama's second term).

Kennedy is nominally a conservative, but not a hidebound one, and he sometimes votes with the liberals. If he retired, then maybe the liberal wing would pick up a seat; but I am not aware of any health or other issues that would cause him to step down any time soon. He's by far not the most intransigent of the conservatives (hello, Scalia and Thomas).

Anyhow, I don't share your certainty that conservative extremism is going the way of the dinosaur and that Democrats are going to hold the White House in 2016. It wasn't all that long ago that the demise of the Democratic Party was being trumpeted. Losing parties drop back, regroup, and come out swinging again from a different angle, supported by different disaffected groups. Presenting themselves afresh, they look like the Attractive New Answer to whatever America's current problem is.

I think it's far more likely that SCOTUS stays like it is, or maybe picks up one liberal vote, during Obama's term, unless people like Alito and Thomas leave the court during his term. And I think the chances of their leaving, barring unforeseen health issues, are slim and none. I also think it's way, way too early to predict an outcome to the 2016 presidential election and its effect on SCOTUS.