RIP Scalia

[Left_Hand_of_Dorkness]

@Bricker

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.”

That’s fair–I hadn’t read Rick Kitchen carefully enough, whose phrasing was “dodging ethical regulations.” You’re right that support for such a claim would require the ethical regulations dodged. (Admittedly Rick wasn’t completely claiming that, merely raising the possibility.)

[Bricker]

@Left_Hand_of_Dorkness

That’s fair–I hadn’t read Rick Kitchen carefully enough, whose phrasing was “dodging ethical regulations.” You’re right that support for such a claim would require the ethical regulations dodged. (Admittedly Rick wasn’t completely claiming that, merely raising the possibility.)

Sure – but raising the possibility without a foundation is the activity routinely derided here as “just asking questions.”

It suggests nefarious activity while being free of any requirements like evidence. “Fred has a five year old daughter. I wonder if he’s been left alone with her, or when she had friends over, with any of her friends?”

Hey, just raising the possibility.

That kind of attack-by-innuendo should be called out when it’s seen.

[John_Mace]

I get the feeling that this thread isn’t helping Scalia RIP.

[VinylTurnip]

Maybe we do need that sarcasm tag, after all.

[Really_Not_All_That_Bright]

@Bricker

Can you show me where he said the intent of the legislature mattered?

He spends rather a lot of time discussions the intent of the proponent of the bill.

As the majority recognizes, ante at 592, Senator Keith sincerely believed that “secular humanism is a bona fide religion,” 1 App. E-36; see also id. at E-418; 2 id. at E-499, and that “evolution is the cornerstone of that religion,” 1 id. at E-418; see also id. at E-282; id. at E-312 - E-313; id. at E-317; 2 id. at E-499. The Senator even told his colleagues that this Court had “held” that secular humanism was a religion. See 1 id. at E-36, id. at E-418; 2 id. at E-499. (In Torcaso v. Watkins, 367 U.S. 488, 495, n. 11 (1961), we did indeed refer to “Secular Humanism” as a “religio[n].”) Senator Keith and his supporters raised the “religion” of secular humanism not, as the majority suggests, to explain the source of their “disdain for the theory of evolution,” ante at 592, but to convince the legislature that the State of Louisiana was violating the Establishment Clause because its teachers were misrepresenting evolution as fact, and depriving students of the information necessary to question that theory. 1 App. E-2 - E-4 (Sen. Keith); id. at E-36 - E-37, E-39 (Sen. Keith); id. at E-154 - E-155 (Boudreaux paper); id. at E-281 - E-282 (Sen. Keith); id. at E-317 (Sen. Keith); 2 id. at E-499 - E-500 (Sen. Keith). The Senator repeatedly urged his colleagues to pass his bill to remedy this Establishment Clause violation by ensuring state neutrality in religious matters, see, e.g., 1 id. at E-36; id. at E-39; id. at E-313, surely a permissible purpose under Lemon. Senator Keith’s argument may be questionable, but nothing in the statute or its legislative history gives us reason to doubt his sincerity or that of his supporters.

Scalia was attempting to explain away the fact that the bill was couched as a defense of academic freedom, while it was actually the opposite. He initially argued that the intent prong of the Lemon test should not be considered, but accepted as a matter of fact that it was the law and proceeded accordingly.

Whether any of this is inconsistent with positions he had taken during oral argument I don’t know.

[Damuri_Ajashi]

@Left_Hand_of_Dorkness

Absolutely not. I’d prefer a very strict set of guidelines, however, perhaps something like this:

1. Justices are obligated to ensure that they have no direct or close indirect financial ties (this is the sort of detail that requires shittons of detail and is an excellent task for CPAs) to those whose cases come before the court. If such a case comes before the court, the justice should recuse herself.
2. Justices are obligated to ensure that those who give them significant gifts (say, greater than $100 cash value) have not had a case before the court in the past five years.
3. Justices are obligated not to knowingly accept gifts forbidden in the previous clause through indirect means, e.g., theater tickets given to their spouse and enjoyed by them.

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.

Its usually the exact opposite. if it is his good buddy, he is might be expected to recuse himself but he is not expected do as you say.

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.

It is a nothing.

[Really_Not_All_That_Bright]

Well, it’s certainly true that SCOTUS justices seem to have a more casual approach to the canons of judicial ethics than their less successful brethren. Not that I think there is anything to this Scalia “gift” story.

[Damuri_Ajashi]

@Rick_Kitchen

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?

The normal reaction to having a conflict of interest is to recuse yourself. Doing nothing is not ethically problematic in this case.

Getting something from a friend is not ethically problematic so long as it meets the ethical guidelines. What happened here seems to meet those standards.

[lance_strongarm]

@Trinopus

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.

Interesting - can you point to more info in a link? Or at least name the case. Thanks.

[Really_Not_All_That_Bright]

Edwards v. Aguillard.

[Left_Hand_of_Dorkness]

@Bricker

Sure – but raising the possibility without a foundation is the activity routinely derided here as “just asking questions.”

It suggests nefarious activity while being free of any requirements like evidence. “Fred has a five year old daughter. I wonder if he’s been left alone with her, or when she had friends over, with any of her friends?”

Hey, just raising the possibility.

That kind of attack-by-innuendo should be called out when it’s seen.

I’m not sure that’s what’s going on here. His phrasing is a bit ambiguous. He asks you to explain why “this is not the case”–that might mean he’s asking you to justify your claim, or it might mean he agrees it’s not the case that it dodges ethical rules, but he wants to know the underlying rationale for saying it.

[standingwave]

My favorite Scalia quote from a conference in Ottawa. (To be fair, a another judge brought up the TV show, 24.) Regarding torture:

“Jack Bauer saved Los Angeles. He saved hundreds of thousands of lives. Are you going to convict Jack Bauer? Say that criminal law is against him? You have the right to a jury trial? Is any jury going to convict Jack Bauer? I don’t think so.”
Or as Donald Trump said yesterday, “Torture works.”

[Trinopus]

@Bricker

Cite?

Terra Magazine, the magazine of the Los Angeles Natural History Museum, which had a two issue special on the Louisiana Creationism case, with details on Scalia’s rather psychotic legal arguments and self-contradictory reasoning.

[Robot_Arm]

@Bricker

Sure – but raising the possibility without a foundation is the activity routinely derided here as “just asking questions.”

It suggests nefarious activity while being free of any requirements like evidence. “Fred has a five year old daughter. I wonder if he’s been left alone with her, or when she had friends over, with any of her friends?”

Hey, just raising the possibility.

That kind of attack-by-innuendo should be called out when it’s seen.

I’ve been giving this some thought since it originally came up in this thread, and you’re right, but only up to a point. It’s also possible to err too far to the other extreme, to be too deferential; how dare we impugn the motives of this noble jurist, etc.

If a justice has a conflict of interest and doesn’t recuse himself or disclose it, what recourse is there? Are we supposed to just take the justice’s word for it? Is there any group with this much power that is really expected to police themselves?

In short, who watches the watchers?

[kaylasdad99]

@Bricker

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.)

To be clearer, that speculation of mine was intended to be about why Trinopus thought it was reasonable to impute the other stance (intent of the legislators is relevant) to Scalia. I apologize if my choice of words muddied that point.

[BigT]

@Bricker

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.

Except that ethics only extend the ethics that already exist for every other person. And one of the ethics of a normal person is that you don’t accept gifts from people who you will then later have influence over.

The strict adherence to rules over what’s right is why I tend to think of lawyers are lawful neutral to lawful evil rather than lawful good.

[Bricker]

@Trinopus

Terra Magazine, the magazine of the Los Angeles Natural History Museum, which had a two issue special on the Louisiana Creationism case, with details on Scalia’s rather psychotic legal arguments and self-contradictory reasoning.

Can you quote the specific parts of their magazine which you feel proves your claim?

In general, offering up two issues of a magazine is not really a cite.

[Damuri_Ajashi]

@BigT

Except that ethics only extend the ethics that already exist for every other person. And one of the ethics of a normal person is that you don’t accept gifts from people who you will then later have influence over.

The influence, if there was any, was in the past.

The strict adherence to rules over what’s right is why I tend to think of lawyers are lawful neutral to lawful evil rather than lawful good.

Judges are supposed to be lawful neutral. They are not supposed to make value judgments, they are supposed to uphold the law. The legislature is where you find lawful good and lawful evil but frankly most of them are just dicks.

[Bricker]

@BigT

And one of the ethics of a normal person is that you don’t accept gifts from people who you will then later have influence over.

That did not happen here.

The Court denied cert in a case involving a company. Two years later Scalia accepted a gift from an owner of another company which held the first company as a subsidiary.

[Bricker]

@BigT

The strict adherence to rules over what’s right is why I tend to think of lawyers are lawful neutral to lawful evil rather than lawful good.

Lawyers and judges should both be lawful neutral.

A prosecutor can be a Paladin. A defense attorney can’t.

A judge must be lawful neutral.

Unless you accept that “good,” includes service to the larger good of social service: letting a murderer walk free in service of the social good goal of preserving the Fourth Amendment protection against unreasonable search and seizure.