# Justices Kagan and Scalia **URL:** \ **Category:** Great Debates\ **Created:** [January 12, 2011, 6:23pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368 "2011-01-12T18:23:13Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 12, 2011, 7:09pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/21 "2011-01-12T19:09:46Z")
Look, this isn’t tough. A frequent criticism on these boards for Scalia is that he figures out how he wants things to come out and then invents a rationale for it. Here, according to that view, Scalia should have come down against the debtor… yet he was the only dissenting justice, voting FOR the debtor’s best interest and AGAINST the corporations that were owed the debt. So I’m asking those that have criticized Scalia on that basis to explain this decision. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [January 12, 2011, 7:13pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/22 "2011-01-12T19:13:02Z")
> [@Jas09](#): > > He cited a 1942 British ruling I’m sure that everyone whose panties were ever in a bunch over any other Justice’s citation of foreign law will be all over this. ---
**Author:** ![Don\_t\_Call\_Me\_Shirley](https://avatars.discourse-cdn.com/v4/letter/d/f4b2a3/32.png) [@Don\_t\_Call\_Me\_Shirley](https://boards.straightdope.com/u/Don_t_Call_Me_Shirley)\ **Post date:** [January 12, 2011, 7:15pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/23 "2011-01-12T19:15:48Z")
> [@Bricker](#): > > Look, this isn’t tough. A frequent criticism on these boards for Scalia is that he figures out how he wants things to come out and then invents a rationale for it. > > Here, according to that view, Scalia should have come down against the debtor… yet he was the only dissenting justice, voting FOR the debtor’s best interest and AGAINST the corporations that were owed the debt. > > So I’m asking those that have criticized Scalia on that basis to explain this decision. In general, I believe the view of Scalia you describe is correct. There have been a few times where he has made a surprising ruling; flag burning comes immediately to mind. However, these instances are very rare. And, in this case, ultimately pointless. I think he’s twisted and delusional enough to do this just to be contrary, or to try to prove a point about how pure his intellectually and morally bankrupt philosophy is. And you bought it hook, line, and sinker. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 12, 2011, 7:16pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/24 "2011-01-12T19:16:46Z")
> [@Don\_t\_Call\_Me\_Shirley](#): > > In general, I believe the view of Scalia you describe is correct. There have been a few times where he has made a surprising ruling; flag burning comes immediately to mind. However, these instances are very rare. And, in this case, ultimately pointless. I think he’s twisted and delusional enough to do this just to be contrary, or to try to prove a point about how pure his intellectually and morally bankrupt philosophy is. And you bought it hook, line, and sinker. So he does it, except when he doesn’t do it. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [January 12, 2011, 7:18pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/25 "2011-01-12T19:18:01Z")
> [@Bricker](#): > > So I’m asking those that have criticized Scalia on that basis to explain this decision. I haven’t made such criticism, and I’ve never heard of anyone (with a respectable opinion of course) that said Scalia ALWAYS and IN EVERY CASE will rule for businesses ALL THE TIME. And if you’re going to knock down these strawmen you build, funny how you didn’t take on those who accuse the liberal judges of ALWAYS deciding against big business (if those people exist). ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 12, 2011, 7:28pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/26 "2011-01-12T19:28:19Z")
> [@Hamlet](#): > > I haven’t made such criticism, and I’ve never heard of anyone (with a respectable opinion of course) that said Scalia ALWAYS and IN EVERY CASE will rule for businesses ALL THE TIME. > > And if you’re going to knock down these strawmen you build, funny how you didn’t take on those who accuse the liberal judges of ALWAYS deciding against big business (if those people exist). Undoubtedly there are such people (who accuse the liberal judges of ALWAYS deciding against big business) but they don’t really populate this message board. Scalia’s detractors, however, do. ---
**Author:** ![Robb](https://avatars.discourse-cdn.com/v4/letter/r/a183cd/32.png) [@Robb](https://boards.straightdope.com/u/Robb)\ **Post date:** [January 12, 2011, 7:30pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/27 "2011-01-12T19:30:47Z")
If Scalia is criticized for voting for the result he wants, how do you know that he didn’t vote for the result he wanted in this case? Whose whim did he follow here? ---
**Author:** ![Don\_t\_Call\_Me\_Shirley](https://avatars.discourse-cdn.com/v4/letter/d/f4b2a3/32.png) [@Don\_t\_Call\_Me\_Shirley](https://boards.straightdope.com/u/Don_t_Call_Me_Shirley)\ **Post date:** [January 12, 2011, 7:31pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/28 "2011-01-12T19:31:04Z")
> [@Bricker](#): > > So he does it, except when he doesn’t do it. Yes. And when he doesn’t do it, it’s never the deciding vote on a case. It’s not really that hard to understand. He does it 99% of the time. Your childish attempt at a “gotcha ya” is pathetic. If I wanted to stoop to your ridiculous method of argument, I might ask you to cite a thread where anyone argued that Scalia “always, forever, and without exception” decides what outcome he wants and then twists the argument to go his way. But I won’t do that, because I’m a grown up. ---
**Author:** ![zamboniracer](https://avatars.discourse-cdn.com/v4/letter/z/e9a140/32.png) [@zamboniracer](https://boards.straightdope.com/u/zamboniracer)\ **Post date:** [January 12, 2011, 7:32pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/29 "2011-01-12T19:32:47Z")
> [@Bricker](#): > > So he does it, except when he doesn’t do it. If I was really cynical - and without reading the case - I’d say Nino saw that there were 8 votes on one side already, so he could vote the other way and not risk changing the case, while at the same time using his vote as an instance of where he sided with the consumer/debtor instead of with the big bad credit card company. I can hear his speech now, “People accuse me of not standing up for the little guy and favoring the powerful, but look at this case where I was the lone dissenter.” ---
**Author:** ![Kearsen](https://avatars.discourse-cdn.com/v4/letter/k/82dd89/32.png) [@Kearsen](https://boards.straightdope.com/u/Kearsen)\ **Post date:** [January 12, 2011, 7:34pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/30 "2011-01-12T19:34:14Z")
> [@spark240](#): > > I don’t really see why people who own cars should get preferential treatment in bankruptcy cases, regardless of whether the cars are fully paid-for or not. > > That aside, didn’t Scalia write a book in which he plainly admitted to sometimes ruling on the basis of how he wanted things to come out? The short of it is: bankruptcy code is meant to leave the person(s) filing bankruptcy a vehicle (usually a single one) as a mode of transportation whether or not it is paid for is a key in this particular case. If they allow you to deduct the payments of the car , why would they not allow ALL potential payments of the car up to the maximum deduction gained by such. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [January 12, 2011, 7:35pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/31 "2011-01-12T19:35:48Z")
> [@Bricker](#): > > Look, this isn’t tough. A frequent criticism on these boards for Scalia is that he figures out how he wants things to come out and then invents a rationale for it. > > Here, according to that view, Scalia should have come down against the debtor… yet he was the only dissenting justice, voting FOR the debtor’s best interest and AGAINST the corporations that were owed the debt. > > So I’m asking those that have criticized Scalia on that basis to explain this decision. Roberts is the guy who always\*votes with business interests. Scalia, most notably in _State Farm v. Campbell_, sometimes does the right thing for the right reasons. \*maybe not always, but he’s sure much more in the Chamber of Commerce’s their pocket than Scalia. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 12, 2011, 7:39pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/32 "2011-01-12T19:39:18Z")
> [@Don\_t\_Call\_Me\_Shirley](#): > > Yes. And when he doesn’t do it, it’s never the deciding vote on a case. Kyllo v. US was a 5-4 decision, with Scalia deciding that the government could NOT use thermal imaging to look at a house from the street without a warrant. Not only was he the deciding vote, but he wrote the opinion. Going to move the goalposts again? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 12, 2011, 7:42pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/33 "2011-01-12T19:42:59Z")
> [@Procrustus](#): > > Roberts is the guy who always\*votes with business interests. Scalia, most notably in _State Farm v. Campbell_, sometimes does the right thing for the right reasons. > > \*maybe not always, but he’s sure much more in the Chamber of Commerce’s their pocket than Scalia. In this case the “right reason” was his dissent in BMW v. Gore? ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [January 12, 2011, 7:43pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/34 "2011-01-12T19:43:16Z")
> [@Bricker](#): > > Kyllo v. US was a 5-4 decision, with Scalia deciding that the government could NOT use thermal imaging to look at a house from the street without a warrant. > > Not only was he the deciding vote, but he wrote the opinion. > > Going to move the goalposts again? So a justice with well over 20 years on the Supreme Court has one decision you can point to which invalidates people’s criticism of him when they are considering the whole body of his decisions? M’kay… Even a broken clock is right twice a day (or once if you use military time). ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 12, 2011, 7:46pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/35 "2011-01-12T19:46:48Z")
> [@Whack-a-Mole](#): > > So a justice with well over 20 years on the Supreme Court has one decision you can point to which invalidates people’s criticism of him when they are considering the whole body of his decisions? > > M’kay… > > Even a broken clock is right twice a day (or once if you use military time). That was one I knew immediately, simply because I would have gone the other way myself. How many cases are necessary to rebut the presumption? Per **Don’t call me Shirley** do they all have to be 5-4 cases? ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [January 12, 2011, 7:47pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/36 "2011-01-12T19:47:40Z")
> [@Bricker](#): > > That was one I knew immediately, simply because I would have gone the other way myself. > > How many cases are necessary to rebut the presumption? Per **Don’t call me Shirley** do they all have to be 5-4 cases? 27.8% ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [January 12, 2011, 7:47pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/37 "2011-01-12T19:47:56Z")
> [@Bricker](#): > > In this case the “right reason” was his dissent in BMW v. Gore? Yes. The reason I say he was “right” is that the majority just made stuff up to correspond to what they thought sounded “fair,” and was a blatant attempt to throw a bone to corporate wrongdoers. I’m not sure where Scalia was on _Exxon,_ but I wouldn’t be surprised to see if he was dissenting. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 12, 2011, 7:54pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/38 "2011-01-12T19:54:13Z")
> [@Procrustus](#): > > Yes. The reason I say he was “right” is that the majority just made stuff up to correspond to what they thought sounded “fair,” and was a blatant attempt to throw a bone to corporate wrongdoers. Yes. My argument is that is NOT what Scalia does. He methodically applies his analytical approach to every case, and where it takes him, it takes him. The “liberal wing” is much the worse offender when it comes to saying, in effect, “Here’s the fair decision,” even if the text of the statute doesn’t quite get you there. Scalia’s decisions often come down on the “conservative” side, but that’s because the “liberal” side seeks a view of the law that expands rights, that has a living Constitution. Scalia thinks the text says what the text says. This is misinterpreted as results-based by people who assume that because they would do it, everyone must be doing it… (“the wicked flee where no man pursueth…”) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 12, 2011, 7:55pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/39 "2011-01-12T19:55:14Z")
> [@Czarcasm](#): > > 27.8% Is that 27.8% of the 5-4 decisions? ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [January 12, 2011, 7:58pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/40 "2011-01-12T19:58:13Z")
> [@Bricker](#): > > Is that 27.8% of the 5-4 decisions? Yes. [Previous page](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368.md?page=1) [Next page](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368.md?page=3)