RIP Scalia

[Trinopus]

@elucidator

. . . (This sort of thinking is pretty common to humans. Especially smart ones, the kind who get used to winning arguments. Or so I’m told…)

Grin! Yer a gentleman, sir.

I wonder if Scalia wasn’t often very frustrated at not winning arguments, and at coming out in the minority of 5-4 decisions. Some of his dissents were at least a little whiny, sometimes irked and irate, sometimes a bit nasty.

He seemed to be that kind of powerful mind (and I do not impugn his raw intelligence in any way) who couldn’t quite “get it” that people disagreed with him. He wanted to slap them in the face. “See? Right there in the fucking dictionary!”

But that way of thinking may have deluded him into underestimating the intelligence of his opponents. Would he ever have praised Ginsburg as a “brilliant legal scholar?” Could he have dared to? Or did he deride the “loyal opposition” as a bunch of ideologically-based hacks (the way I deride him.)

Was he wise enough to respect the IDIC (sorry, I’m a fanboy) of the court, or was he entirely trapped in an “I’m right, you’re wrong” blinkers of his ideology.

My opinion is that he may have had a brilliant mind, but he relied far too much on his gut, and not enough on actual reason. Everyone (being human) is guilty, to a degree of making up their mind, then thinking up reasons why they must be right. But I see that as his primary process of reasoning. Not a bug, but a feature.

[Bricker]

@Trinopus

He didn’t interview actual sandwich shop owners, or actual Mexican Restaurant owners. He didn’t engage in any kind of due diligence. He looked it up in his Funk & Wagnall’s.

He wasn’t the judge. He was commenting on a case, and in that case, the testimony included expert opinions on what constituted a sandwich shop.

[TonySinclair]

@Bricker

He was commenting on a case, and in that case, the testimony included expert opinions on what constituted a sandwich shop.

I’m in the wrong business.

[ElvisL1ves]

Paul Campos does a better job here of exposing Scalia’s systematic result-driven reasoning.

Amazing, isn’t it, how so many people get on the Court who lack his devotion to principle and intellectual rigor? How could he be right all the time and so many other Justices, not? Of course, it’s only coincidence that his conclusions so well adhered to a particular party’s doctrine.

[Starving_Artist]

@ElvisL1ves

Of course, it’s only coincidence that his conclusions so well adhered to a particular party’s doctrine.

Well, one party pretty much believes the Constitutions says what it says, and the other one thinks what the Constitutions says should be contorted in such a way as to provide the outcome they desire. So it really isn’t surprising that a justice who feels the Constitution says what it says would find his rulings aligned with the thinking of the party who feels the same way.

[ElvisL1ves]

@Starving_Artist

the thinking of the party who feels the same way.

In short, cite?

[iiandyiiii]

@Starving_Artist

Well, one party pretty much believes the Constitutions says what it says, and the other one thinks what the Constitutions says should be contorted in such a way as to provide the outcome they desire. So it really isn’t surprising that a justice who feels the Constitution says what it says would find his rulings aligned with the thinking of the party who feels the same way.

This is certainly what right wing talking points want you to believe, but in fact all interpretations of the Constitution, including the “textualist” approach, involve interpretation. There are multiple ways, even multiple literal and textual ways, of reading a document.

[elucidator]

And how does he get the reputation for brilliance? In most, if not all, other areas of intellectual performance, it is innovation and change that creates the reputation, usually after years of fierce and unrelenting resistance. Who remembers the brilliantly reasoned arguments why Einstein was wrong? For that matter, who praises Einstein for his refusal to accept quantum mechanics? If we were to survey all economic academics and their students, would Keynes be most praised, or the Austrian School?

Change is not always progress, but progress is always change, and if one resists change, one resists progress. But resistance to change is the very bleating heart of conservatism, as it is today. Was there not a time when conservatives accepted the necessity of progress, but only spoke of prudence and caution? Sometimes the elders speak of those mythical days…

What is Scalia’s brilliant innovation, what new realms did he open with the mind? He is praised more for rationalization, for finding the text in Constitutional Scripture that supports Things As They Are, and comforts those who are most content. And the Constitution? The Declaration of Independence is a revolutionary innovation, with breathtaking notions like the equality of person. The Constitution only dimly reflects the revolutionary commitment of the Declaration, if the Constitution demanded equal voting rights for all citizens, it would have said so.

I can understand, even praise, the Constitution as a pragmatic set of compromises, the necessity of structure and a recognition of Things As They Are. And I understand that the means for change were built in to the structure, somewhat. But the bar for a Constitutional change was deliberately set so high, with so much demand for a massive agreement for that change, that the Constitution only permits a change to be reflected in it structure when that change has already occurred! The demands are set so high, it is fair to say that the Constitution resists change, and only accepts it when the people have already changed to a massive degree. Conservatives then can smugly condescend “You want change? Well, just get out there and get everybody on your side, and then you can do it! So, run along now, and leave us in charge in the meantime.”

If the thing itself is averse to change, restricts the opportunity so severely, then it is fair to say that someone who insists on original meaning and interpretation is equally resistant to change. If not more so! If he is not exaggerating the Constitution’s bias against change!

But how is that an innovation, what is new and brilliant about that? If Science could only be amended by such means, we might not even yet have accepted Darwin (as many of us have not!).

(Why, we might have such here, in that case. A conservative poster who offers that he is going to review the math on the recent discovery on gravity waves, and, if it checks out? Well, he might be willing to accept that Mr. Einstein may have some valid points to make, and perhaps Newton was not the end of the line…maybe.)

But Scalia was the avowed enemy of progress! In what other field of human intellectual endeavor is that “brilliant”? For my two bits…it was his capacity to create rationalizations that offered something for conservatives to cling to, some reason to believe that their notions were not outmoded and decrepit, but a lively counterpart to those ideas which actually are. It speaks to a hunger born of starvation, the desire to believe that the side of the argument that is failing before our very eyes is, in fact, equal to its counterpart.

Balderdash, sir! Tommyrot!

[ElvisL1ves]

@elucidator

it was his capacity to create rationalizations that offered something for conservatives to cling to, some reason to believe that their notions were not outmoded and decrepit, but a lively counterpart to those ideas which actually are.

That, and a skill with derision and sarcasm when he couldn’t find a rationalization. Later in his career, that became his first resort, not his second. And, every time, it gave the fearful something to cling to, as you say, that showed how Duh Libruls were getting their asses pounded.

Balderdash, sir! Tommyrot!

Or, as Scalia would call it, Pure Applesauce!

[Bricker]

@Starving_Artist

Well, one party pretty much believes the Constitutions says what it says, and the other one thinks what the Constitutions says should be contorted in such a way as to provide the outcome they desire. So it really isn’t surprising that a justice who feels the Constitution says what it says would find his rulings aligned with the thinking of the party who feels the same way.

More to the point, one party believes that the proper role of the judiciary is to be, as closely as possible, a neutral arbiter, an umpire. The other party believes that the proper role of the judiciary is to contribute to enlightened social progress: to be a force for positive change by steering social policy.

It’s fair to say that neither answer is objectively the “correct,” one. I follow the first view, because I believe it to be more consistent with our notion of representative democracy.

[elucidator]

And Scalia embodied this ideal of neutrality, did he? His record of decisions, his public statements, his gleeful opposition…none of this shakes your confidence in his utter neutrality? His reasoning moved faultlessly from clear premise through inexorable reasoning to irrefutable conclusion? Innocent of bias, or malice, or prejudice, he was?

Are there going to be unicorns and wizards in this fairy tale, Uncle Bricker? I like unicorns.

[BigT]

@Bricker

More to the point, one party believes that the proper role of the judiciary is to be, as closely as possible, a neutral arbiter, an umpire. The other party believes that the proper role of the judiciary is to contribute to enlightened social progress: to be a force for positive change by steering social policy.

It’s fair to say that neither answer is objectively the “correct,” one. I follow the first view, because I believe it to be more consistent with our notion of representative democracy.

That is the conservative spin on it, yes. But, in reality, there’s nothing more neutral about originalism than any other style of interpretation. Originalism is just anti-progress. Neutrality would favor neither the original intent nor progressive change.

The big difference is that, as a liberal, I see the constitution the way liberal Christians see the Bible. It’s enshrines a set of principles. As society progresses, we find out that things that were not originally covered should have been by the principles carried within.

I fully find the right to same sex marriage in the Fourteenth Amendment. Not because it is explicitly stated, but because of the principle stated within. Gay people were not being afforded the “privileges or immunities of a citizen,” and were being denied “equal protection of the law.” It doesn’t matter that the original writers had no intent to treat gay people equally. They at that time erroneously thought that gay people were just crazy or sinners–seeing them as a lower class of people.

See, I’m still interpreting the law. I am looking at the meaning inherent in the text. What I’m not doing is going back to what the people who originally wrote those words thought they meant. I’m looking at the principle they enshrined.

Scalia sees no such right. Even you saw one after people argued with you. But Scalia thought it was horrible, and couldn’t help but say so in his dissent. Hardly the neutrality you claim he was pushing for.

Because, ultimately, despite all the talk, Scalia wasn’t neutral. He doesn’t admit his own biases and work against them. He is, as you implied, part of a political party.

[Bricker]

@elucidator

And Scalia embodied this ideal of neutrality, did he? His record of decisions, his public statements, his gleeful opposition…none of this shakes your confidence in his utter neutrality? His reasoning moved faultlessly from clear premise through inexorable reasoning to irrefutable conclusion? Innocent of bias, or malice, or prejudice, he was?

Are there going to be unicorns and wizards in this fairy tale, Uncle Bricker? I like unicorns.

I am still waiting for someone to specifically cite the cases that show his inconsistency. There is no shortage of opinion columns from people who thought he was inconsistent – but where is the actual language from him?

The answer is yes: he was neutral, in the sense that he followed the text where it took him.

That’s not neutral, in the sense that this approach favored conservative outcomes. As you observed earlier, progress implies change. When the legislature is too slow, too moribund, too concerned with re-election, change is slow or non-existent. That favors, generally, the conservative outlook. So in that sense, no, he was not neutral.

But where the approach did not favor a conservative outcome, he was willing to break ranks and follow the text anyway. He voted with the liberal bloc more than any other liberal bloc justice voted with the conservatives.

[davidm]

An Arizona lawyer says that Scalia should be able to essentially vote from the grave.

WTF: Arizona lawyer says Scalia can vote 'from the grave' to keep Supreme...

Anti-government attorney Kory Langhofer argued over the weekend that the Supreme Court could continue to decide cases 5-4 in favor of conservatives after the death of Antonin Scalia because the deceased justice could effectively cast votes from the grave.

“There’s no Ouija board required to figure out how Justice Scalia would vote on these things, he’s already voted,” Langhofer told KPNX during a panel discussion on Sunday. “We’re at the second-to-last step in how these cases unfold when Justice Scalia died.”

“We know exactly what he thought,” Langhofer continued. “And it’s not unprincipled to say we should give affect to that.”

This is of course ridiculous, and it is only one person saying it, but I’m wondering if we’re going to start hearing this idea being floated by others.

[Bricker]

@BigT

See, I’m still interpreting the law. I am looking at the meaning inherent in the text. What I’m not doing is going back to what the people who originally wrote those words thought they meant. I’m looking at the principle they enshrined.

Yes. And I don’t say that’s an objectively invalid approach.

But it places in the hands of unelected judges more power than I believe our notions of representative democracy should allow.

What happens when five judges look at the word “life” in the Constitution and apply it to the unborn? They, too, can say that they are looking at the principle that’s enshrined.

[BigT]

@Bricker

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.

That’s actually a good example. Why the fuck does the murderer still get to go free? Why isn’t it that those who did evil in doing an illegal search and seizure are also punished? Why should their doing wrong get the murderer off?

The invalidation of illegally obtained evidence is actually one of those things that really bugs me about our legal system. You should discourage such evidence via punishing those who do it. Fire the cops and give them some jail time. But if you know that beyond a reasonable doubt that someone committed murder, you have a moral obligation to convict, for the same reason I have a moral obligation to call the police when I see a murder. Doing otherwise makes me guilty of trying to cover it up.

I don’t expect anyone to be paladins, BTW. I’m actually not sure they are quite as good as they are supposed to be, anyways. (but that’s another thread). I just think that everyone has an obligation to doing what is good. In D&D terms, everyone should be on that top row of the alignment chart.

I’d argue that, in the real world, someone who is lawful neutral is actually evil–just not as evil as those who get pleasure out of the suffering of others like the bottom of the chart.

[Siam_Sam]

@Acsenray

It’s not that they “just lie” under torture because they can resist it. It’s that they says whatever they think the torturer wants to hear to make the torture stop. That’s not a very reliable way of getting truthful information.

I really don’t think this is the case most of the time, it’s just that people want to believe it happens more often than it does. The torturers want certain information, and said info can be checked for accuracy.

Note that I’m not advocating torture. It is wrong, at least 99.9% of the time when you don’t have a ticking time bomb. But there’s no denying its effectiveness over the ages. Otherwise, it would have stopped being done long ago.

[coremelt]

@Siam_Sam

But there’s no denying its effectiveness over the ages. Otherwise, it would have stopped being done long ago.

It has stopped being done, as a method of gathering information long ago. I’d maintain that current torture as practised by cartels and various dictatorships is much more about punishment than gathering information. As a way of intimidating someone into cooperating it might be effective. For getting information, not so much.

[davidm]

@Siam_Sam

I really don’t think this is the case most of the time, it’s just that people want to believe it happens more often than it does. The torturers want certain information, and said info can be checked for accuracy.

Note that I’m not advocating torture. It is wrong, at least 99.9% of the time when you don’t have a ticking time bomb. But there’s no denying its effectiveness over the ages. Otherwise, it would have stopped being done long ago.

There are many ineffective things that people have been doing for a long time and still continue to do.

[Siam_Sam]

It has not stopped being done. The CIA did it to that terrorist they nabbed in Thailand’s Ayutthaya province a few years back in the wake of 9/11. (Him I’m not crying too much about though.)