And it did not get four votes for cert.
Scalia alone, or even Scalia allied with the other conservative justices, or even Scalia allied with the other conservative justices AND the swing Justice, could not have achieved this result.
So what impropriety is there?
What canon of judicial ethics, specifically, do you believe was violated?
But with Scalia, you’re unable to point to any specific instance.
Sure: the Louisiana evolution case, where he said that the intent of the legislature mattered, until a “smoking gun” was shown, demonstrating that the intent of the legislature was forbidden (“Put Jesus back in schools.”) Then he did a 180 and said that the intent of the legislature was irrelevant to constitutionality.
He’s backed-and-forthed on intent several times. If “intent” goes his way, it’s a vital consideration; if it goes against him, it is “irrelevant.”
Absolutely not. I’d prefer a very strict set of guidelines, however, perhaps something like this:
This might mean that justices would have to turn down gifts more often than other people would. I don’t think that’s a terrible hardship to impose in order to achieve the good of raising the court above the appearance of impropriety.
In theory, there could be a quid pro quo. Suppose Scalia would normally grant cert, as would three other justices, under such cases, but he was good buddies with Poindexter. He didn’t want to hurt his pal, so he refused to become the necessary fourth vote for cert.
It is admittedly a reach, without further evidence, the sort of thing that is more a problem in theory than in practice (such as another example of corruption in voting that I could mention :)). Of all the awful things Scalia did in his life, I don’t see this as entering the top thousand, and it certainly wouldn’t be worth overhauling judicial ethics just to eliminate this sort of scenario.
But it’s not nothing, however close it may be.
Isn’t there an ethical problem here, regardless of legalities?
Can you show me where he said the intent of the legislature mattered?
No.
Thanks for the helpful reply.
I would think a jurist receiving consideration from a person who has had dealing before his/her court would be dodging ethics regulations. Can you explain why this is not the case?
There are a number of reasons.
Many are highlighted in the excellent post above by Left Hand of Dorkness.
Others are highlighted in my comments above.
Still others relate to the fact that judicial ethics are not a matter of opinion; there is a defined canon of judicial ethics, and this behavior does not transgress them.
It was discussed in arguments.
I don’t know if Scalia did anything wrong or not, but this particular defense is bullshit. Scalia alone could not have achieved a result. Really, it would be okay to bribe a justice as long as I didn’t bribe enough of them to make a majority? Scalia’s vote may not have made a difference, but it still shouldn’t be influenced, or even appear to be influenced, by any gifts he may have received.
Again, I’m not saying he was or wasn’t influenced, but rationalizing that it’s okay if it didn’t swing the balance of the court is a bogus argument.
re Scalia and creationism: Here is a nice article.
It’s fascinating to watch him try to line up a logical argument that creationism is “not religious.” “A giant slug could have been the creator.” He tried to present the creationists’ views as “scientific,” even though that idea had already been dead more than a century.
It is painfully evident, reading this and other historical accounts of the decision, that Scalia had made his mind up that religion should be taught in schools, and that he was willing to connive any double-think – a giant slug indeed! – to protect the ideological value that underlay his jurisprudence.
The man beliefs were the cart, and his legal reasoning only the horse he put behind it, making up reasons for what he already believed in his heart was true.
The fact that in other cases, he would reverse his reasoning, and rely on the very things here that he held were irrelevant, clearly shows his hypocritical approach to constitutional law.
Interesting question; I’d be glad to see the answer. My speculation is that it may be inferred from his comments and questions during the argument phase?
Dang. Ninja’d.
And humanity, compassion? The man fairly overflowed with it! Witness his warm concern for black students who are shoved into scholastic atmospheres they are not prepared to cope with, such as the Olympian atmosphere of U Tex!
Candor and tough love, what a refreshing change from the soft bigotry of lowered expectations offered by liberals who pretend to care about racial equality, straight talk from someone who pretends no such thing! Of course, “There are those who contend that…”! But before Scalia, they had no champion, no intellectual paladin to defend them!
It is widely noted that a gasp of astonished admiration was heard in the courtroom! What a proud moment, what an *American *moment, the golden showers of his candor and “tough love” splashing down on the upturned faces of young black students in Texas and across the land! A pity Thurgood Marshall didn’t get the benefit of Scalia’s expertise on racial matters!
Damn, dude. Reason #4376 why SDMB needs no sarcasm tag.
This gets to a meta issue: on what basis do judicial ethics codes ever change, if not on the basis of opinion? A discussion of judicial ethics should not be shut down by saying, “That’s just, like, your opinion, man.” Without opinions, nobody would have created a judicial code of ethics in the first place.
Cite?
Of course.
But that’s a discussion that begins, as yours did, by saying, “Perhaps we should change our rules,” and not with, “Scalia violated the ethical rules.”
Only if you genuinely believe that he had a special affinity for broccoli, given his questions, during the ACA arguments, about whether the government could mandate that every American buy and eat it.
In other words: no. Questions during oral arguments are Socratic; they are designed to make the advocates explain weaknesses or contradictions in their arguments – or sometimes to assist the advocate in shoring up a weak line. Justices can sometimes reveal the general leaning they have by observing which side they assist and which they press, but Scalia in particular was well known for posing all sorts of awkward hypos to sides he favored during oral argument. And discerning more than a general “he favors this side,” is a fool’s errand.
(But, sadly, this speculation of yours makes Thomas’ well-known silence seem a wise choice.)