# 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:** 3
**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, 8:07pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/41 "2011-01-12T20:07:27Z")
> [@Bricker](#): > > 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…”) Justice Stevens in _Heller_ based his dissent in Orignialism. So who was right? Scalia or Stevens? Goes to show you can make it do whatever you want and Originalism merely cloaks itself in some pretend rigidly defined methodology that is not open to interpretation. Scalia is quite intelligent. It is not hard for him to get the results he desires. Now, you note the Liberal judges seek a desired outcome. That may be true but you cannot claim Scalia is the one who merely goes where the law takes him because there is only one way the law can take you if you follow it. Simply not true. Indeed the whole point of a SCOTUS case is to interpret law that is not clear. As such Scalia is doing the same thing the liberals are and just pretending he is guided by some higher notion. ---
**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, 8:09pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/42 "2011-01-12T20:09:25Z")
> [@Czarcasm](#): > > Yes. OK. And if I produce more than that, you’ll agree Scalia is not as described in the OP? ---
**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, 8:13pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/43 "2011-01-12T20:13:42Z")
> [@Whack-a-Mole](#): > > Justice Stevens in _Heller_ based his dissent in Orignialism. So who was right? Scalia or Stevens? Scalia, who based his opinion on textualism, not originalism. > [@Whack-a-Mole](#): > > As such Scalia is doing the same thing the liberals are and just pretending he is guided by some higher notion. Thus my OP. If Scalia is merely pretending, then how does he end up on the “opposite” side? In other words, a justice who resolutely follows a process, regardless of his personal preferences, would be expected to have a number of cases where he ruled in opposition to his preferences. A justice that picks his outcome ahead of time would not. Surely you agree that Scalia, if giving his preferences free reign, would side with the corporate interests and not the debtor? He’d side with the government for the ability to search with infrared, not the citizen to be protected from that search. So my point is that your claim doesn’t hold water. Scalia is NOT doing the same thing; his presence on the “wrong” side proves it. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [January 12, 2011, 8:17pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/44 "2011-01-12T20:17:24Z")
> [@Bricker](#): > > It’s an article of faith amongst many here that Scalia rules whichever way he wants the thing to come out. No, sir, it is an article of faith around here that Scalia is the most evil flaming asshole ever to defile the highest bench; which appears likely to remain the consensus opinion of historians for all time, and in those exact words, too. What is your point? ---
**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, 8:18pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/45 "2011-01-12T20:18:10Z")
> [@Bricker](#): > > OK. And if I produce more than that, you’ll agree Scalia is not as described in the OP? Sure. ---
**Author:** ![Knorf](https://avatars.discourse-cdn.com/v4/letter/k/58956e/32.png) [@Knorf](https://boards.straightdope.com/u/Knorf)\ **Post date:** [January 12, 2011, 8:21pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/46 "2011-01-12T20:21:05Z")
> [@Bricker](#): > > Surely you agree that Scalia, if giving his preferences free reign, would side with the corporate interests and not the debtor? He’d side with the government for the ability to search with infrared, not the citizen to be protected from that search. > > So my point is that your claim doesn’t hold water. Scalia is NOT doing the same thing; his presence on the “wrong” side proves it. This one example is insufficient evidence to “prove” the point you’re trying to make. At best you can say this is one example where Scalia, to the possible surprise of some, isn’t toadying up to corporate interests. It does not prove that corporate toadying isn’t a more likely pattern of behavior for him overall. ---
**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, 8:26pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/47 "2011-01-12T20:26:54Z")
> [@Knorf](#): > > This one example is insufficient evidence to “prove” the point you’re trying to make. > > At best you can say this is one example where Scalia, to the possible surprise of some, isn’t toadying up to corporate interests. It does not prove that corporate toadying isn’t a more likely pattern of behavior for him overall. I also mentioned Kyllo. Did you forget that one? How about Texas v. Johnson? Flag burning. 5-4. Scalia was withthe majority, holding that flag burning was protected under the First Amendment. Pretty dramatic case to fail to nudge with his personal preferences, eh? ---
**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, 8:30pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/48 "2011-01-12T20:30:46Z")
> [@Bricker](#): > > 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. And in this very case, you have the “liberal wing” deciding for the credit card company and with everyone on the “conservative” wing except for Scalia. It’s almost humorous how you use this opinion to attempt to make a point with regards to Scalia, and ignore how it could be used on the “liberal wing” that you condemn in this very thread. Log. Eye. ---
**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, 8:39pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/49 "2011-01-12T20:39:08Z")
> [@Bricker](#): > > Scalia, who based his opinion on textualism, not originalism. I can’t keep up. How is this not Originalism (bolding mine)? > [@Antonin Scalia](#): > > You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. **Nobody ever thought that that’s what it meant. Nobody ever voted for that.** If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. > > SOURCE: [http://tpmdc.talkingpointsmemo.com/2011/01/scalia-14th-amendment-doesnt-protect-women-against-discrimination.php](http://tpmdc.talkingpointsmemo.com/2011/01/scalia-14th-amendment-doesnt-protect-women-against-discrimination.php) If we go by the text of the 14th Amendment part in question it says (bolding mine): _“ **All persons** born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive **any person** of life, liberty, or property, without due process of law; nor deny to **any person** within its jurisdiction the equal protection of the laws.”_ I do not see how Scalia’s opinion just quoted squares with a Textualist interpretation. > [@](#): > > Textualist: An originalist who gives primary weight to the text and structure of the Constitution. Textualists often are skeptical of the ability of judges to determine collective “intent.” > > SOURCE: [http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/interp.html](http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/interp.html) ---
**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, 8:43pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/50 "2011-01-12T20:43:24Z")
> [@Hamlet](#): > > And in this very case, you have the “liberal wing” deciding for the credit card company and with everyone on the “conservative” wing except for Scalia. > > It’s almost humorous how you use this opinion to attempt to make a point with regards to Scalia, and ignore how it could be used on the “liberal wing” that you condemn in this very thread. Log. Eye. I say “much the worse offender.” Not really an absolute. Scalia’s critics say things like, “And when he doesn’t do it, it’s never the deciding vote on a case,” and “It’s not really that hard to understand. He does it 99% of the 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, 8:45pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/51 "2011-01-12T20:45:54Z")
> [@Whack-a-Mole](#): > > I can’t keep up. How is this not Originalism (bolding mine)? > > If we go by the text of the 14th Amendment part in question it says (bolding mine): > > _“ **All persons** born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive **any person** of life, liberty, or property, without due process of law; nor deny to **any person** within its jurisdiction the equal protection of the laws.”_ > > I do not see how Scalia’s opinion just quoted squares with a Textualist interpretation. Because textualists still have canons of construction, and one of those canons is “Avoid an absurd result.” Read absolutely literally, no two people could be treated differently under the law. That’s an absurd result. So there must be SOME distinctions between people that are permissible. ---
**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, 8:52pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/52 "2011-01-12T20:52:50Z")
> [@Bricker](#): > > Because textualists still have canons of construction, and one of those canons is “Avoid an absurd result.” Read absolutely literally, no two people could be treated differently under the law. That’s an absurd result. So there must be SOME distinctions between people that are permissible. Yes and those distinctions come under heightened scrutiny. Race classifications under strict scrutiny and gender under intermediate (people in prison are addressed by having due process of law applied to them). Same as freedom of speech is not absolute but the courts give it great weight when someone writes a law restricting it. And that does not answer how, in his quote, Scalia was absolutely referencing what people “thought” they were voting for when the Amendment was passed. That is a distinctly Originalist viewpoint. ---
**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, 8:55pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/53 "2011-01-12T20:55:26Z")
> [@Whack-a-Mole](#): > > Yes and those distinctions come under heightened scrutiny. Race classifications under strict scrutiny and gender under intermediate (people in prison are addressed by having due process of law applied to them). Same as freedom of speech is not absolute but the courts give it great weight when someone writes a law restricting it. > > And that does not answer how, in his quote, Scalia was absolutely referencing what people “thought” they were voting for when the Amendment was passed. That is a distinctly Originalist viewpoint. No. It’s an appropriate textualist inquiry when the text is ambiguous. ---
**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, 9:04pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/54 "2011-01-12T21:04:52Z")
> [@Bricker](#): > > No. It’s an appropriate textualist inquiry when the text is ambiguous. What is ambiguous? Seems pretty straightforward to me. Could hardly be clearer in my view. Indeed the only ambiguity comes in when someone starts tossing Originalist interpretations around and say it means something other than the clear text because they figure people were voting for something else when it was passed…nevermind what the text says. In short, Scalia is purposely making something unclear that is clear and intentionally confusing the issue. I still do not see how your answer addresses Scalia’s clear Originalist take on the 14th such that you can call Scalia a Textualist. Please parse Scalia’s statement for me such that is squares with a Textualist interpretation. ---
**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, 9:11pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/55 "2011-01-12T21:11:46Z")
> [@Whack-a-Mole](#): > > What is ambiguous? Seems pretty straightforward to me. Could hardly be clearer in my view. Indeed the only ambiguity comes in when someone starts tossing Originalist interpretations around and say it means something other than the clear text because they figure people were voting for something else when it was passed…nevermind what the text says. > > In short, Scalia is purposely making something unclear that is clear and intentionally confusing the issue. > > I still do not see how your answer addresses Scalia’s clear Originalist take on the 14th such that you can call Scalia a Textualist. > > Please parse Scalia’s statement for me such that is squares with a Textualist interpretation. I just did. Taken literally, we cannot deny to any person the equal protection of the laws. If the law forbids me from being imprisoned, then it must also forbid Tom Delay from being imprisoned. What’s that? Delay’s been convicted of a crime? So what? He’s still being treated differently from me. It can’t be that the law can have a literal application. What it means to say is that similarly situated people will be treated similarly. The government is of course allowed to treat me differently than Delay, because he’s in a class of person (ones convicted of a crime) that I am not. So then the question becomes: what sort of classes are permissble, and what sort of classes are not? ---
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [January 12, 2011, 9:17pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/56 "2011-01-12T21:17:18Z")
> [@Bricker](#): > > The Supreme Court dealt with a bankruptcy case. > > The person filing bankruptcy wanted to be able to deduct money for his car, which he owned free and clear, because the law allows a deduction for car payments. > > On the other side were, in effect, his creditors, who would get less money from the bankrupt individual if that view were adopted. > > It’s an article of faith amongst many here that Scalia rules whichever way he wants the thing to come out. > > So we assume that mean, evil Nino said, “Screw you, bankrupt guy.” And we might assume that compassionate Kagan said, “No, no, whatever help we can give to the poor suffering bankrupt individual, we’ll give.” > > Right? No. Because the deduction isn’t for car ownership, it’s for car payments. I can’t expect Kagan (or most by-the-book judges) to allow the deduction (& I’m stunned this even made it to the SC). I hope I’m at least amused by whatever cockamamie reason Nino comes up with to give him the deduction. Nino Scalia is more likely to throw out the law for sympathetic reasons than the present left of the court, anyway. Remember _Kelo_? ---
**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, 9:20pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/57 "2011-01-12T21:20:50Z")
> [@Bricker](#): > > I just did. Taken literally, we cannot deny to any person the equal protection of the laws. If the law forbids me from being imprisoned, then it must also forbid Tom Delay from being imprisoned. No, you didn’t. You are being evasive. Tom Delay and/or you going to prison is covered under Due Process of Law. As noted Freedom of Speech is circumscribed in various ways so as not to produce absurd results. The courts do it and have been doing that all along with no particular problem. The Right to Bear Arms is restricted in various ways. Again, no muss, no fuss. So what is this “we must take it literally” stuff that makes the amendment impossible to decipher? All people means all people. If the writers wanted to say the amendment meant just based on race or black people they could have said that. They didn’t. If there is a reason to distinguish between two groups then the government needs to produce a very compelling reason to do so. This is old hat for the courts. ---
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [January 12, 2011, 9:30pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/58 "2011-01-12T21:30:08Z")
> [@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. Well, no. It seems perfectly in line with, “voting based on what I think the result should be,” to give the guy a deduction because one wants him to get a deduction. ---
**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, 10:20pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/59 "2011-01-12T22:20:33Z")
Bricker, you are misunderstanding, or (I believe deliberately) mis-characterizing the criticism of Scalia. People aren’t saying that he always votes on the conservative side of an issue, they are saying that he always votes for the outcome that he wants. While most of his views are conservative, like anyone else his views don’t line up exactly with one side of the aisle, hence the odd case like flag burning. The problem with Scalia is that he pretends like he is the only person in the country who is true to the original meaning of the Constitution, and that all his decisions are arrived at by following the original meaning that only he is privy to. (He obviously has you totally snowed.) Which ignores the truth, which is that “the founders” did not all agree on what the Constitution said. They were many people, each with a different agenda, and the final result was a Constitution full of compromise and things that meant different things to different people. Which means that if you want to, you can find justification for any interpretation you damn well please, which is what Scalia does. ---
**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, 10:31pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/60 "2011-01-12T22:31:57Z")
It seems Scalia himself thinks he is an Originalist: > [@](#): > > _Justice Antonin Scalia delivered the following remarks at the Woodrow Wilson International Center for Scholars in Washington, D.C., on March 14, 2005._ > > \ > > I am one of a small number of judges, small number of anybody — judges, professors, lawyers — who are known as originalists. Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people. > > SOURCE: [http://www.cfif.org/htdocs/freedomline/current/guest\_commentary/scalia-constitutional-speech.htm](http://www.cfif.org/htdocs/freedomline/current/guest_commentary/scalia-constitutional-speech.htm) [Previous page](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368.md?page=2) [Next page](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368.md?page=4)