# Why is there so much hatred toward Justice Scalia? **URL:** \ **Category:** Great Debates\ **Created:** [February 15, 2004, 8:12am UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329 "2004-02-15T08:12:03Z")\ **Posts on this page:** 20\ **Page:** 5
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 17, 2004, 7:18am UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/81 "2004-02-17T07:18:26Z")
> [@jshore](#): > > Take my arguments with the rational objectivist as an analogy, I never claimed to him that I could prove from first principles why my liberal philosophies are correct…that I could prove that the only fair taxation is progressive, for example. I will strongly argue that this is what I believe to be true but I won’t try to say that one can prove it mathematically; I’ll admit it depends on one’s values. (This guy was a mathematician, by the way. And really did essentially believe he could prove this stuff just like you proved a math theorem.) All philosophies are based on certain axioms. The test is whether 1) those axioms have some basis in reality and 2) the logical conclusions of those axioms are not contradicted by reality. > [@](#): > > So, to summarize, I much more trust a judge who says that judging Constitutionality is a difficult issues and it is impossible to do it purely on the text and divorced from all context, regarding society, current values, etc. than I trust one who claims there is an objective way to interpret the Constitution and what everyone else is doing is less objective. And I will be particularly hard on this person if he ever seems to read into the Constitution things that don’t seem to be there when it suits his convenience…such as Bush vs. Gore. > > To summarize the summary, people who claim they can be perfectly objective scare me a lot more than those who have a more complicated and nuisanced view of how you go about interpretting the Constitution. I don’t think anyone has claimed that any type of constitutional analysis is not difficult. But the truth is that the constitution **is** a living document, in that it has a clearly defined method for amending it. That process invlolves action by the people and their elected officials, not action by judges. Judges are not there to devine some disembodied, universal truth, but to interpret the will of the people, as expressed explicitly in the statutes and constitution of this country. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [February 17, 2004, 12:29pm UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/82 "2004-02-17T12:29:26Z")
> [@Dewey Cheatem Undhow](#): > > You cite as evidence of Scalia’s evilness his judicial opinions. A logical, intellectually honest approach to evaluating the use of those opinions for that purpose would be to ask if those opinions are justifiable based on a coherent theory of constitutional jurisprudence. I contend that it is. You keep insisting that because the tool that Scalia uses to advance his scummy ideas of how we should live is well-designed, he can’t be evil. Riiiiiight. > [@](#): > > Your way is esssentially the way of the mob – it doesn’t matter if there is an intellectually sound case for Scalia’s opinions, it only matters that you don’t like them and consider that alone sufficient grounds to pillory the man. You’re running out of sound arguments fast. Here we have a false dilemma AND an argumentum ad hominen – "It’s do things my way or your way, **the way of the mob**. How about this: maybe people who don’t want to do things your way have their own ideas how things should be done? Just because people don’t want to let you frame the argument, it doesn’t mean they’re a mob. > [@](#): > > One wonders exactly how you would demonstrate this. Do you have a mind-reading machine? No, but I have a mind, one that is capable of making inferences about people’s minds based on their words and actions. Just because you don’t understand something, it doesn’t mean it’s the product of “magical” powers like mind-reading. > [@](#): > > Or do you just consider anyone who disagrees with you to be evil? I’ve already said I think Scalia is a lot worse than any of the others. Even Rhenquist, who’s also evil, is evil in a different and lesser way than Scalia. [quote] I look forward to your critique of the arguments Scalia put forth in his concurring opinion in _Bush v. Gore_. Or will you just hand-wave them away? Nevermind that he is foursquare within the rules established by the court. Nevermind that he _has_ recused himself in other cases, e.g., the Pledge case. [Dr. Evil] Riiiiiiiiiight. [/Dr. Evil] Why should I critique it when so many more qualified than me have called the decision unmitigated trash? To wit: > [@](#): > > There is virtual unanimity among law professors and jurists, conservative as well as liberal, who have condemned this action by the Supreme Court’s conservative majority. Justice Scalia’s principal justification for issuing a stay on the Florida recount resumption, permitted by the Florida Supreme Court, was that the recount would “threaten irreparable harm to petitioner (Bush) … by casting a cloud upon what he claims to be the legitimacy of his election.” Scalia assumes here that Bush has won, but it is also clear that he feared that if the recount continued, the election could go to Gore. Taking issue with this hollow opinion, judicial conservative Terrance Sandlow stated, “The balance of harms so unmistakably were on the side of Gore,” and further, the stay was “an unmistakable partisan decision without any foundation in law.” > > When the court was finally forced to conjure a point of law in its desperate search for a reason for the stay to save the Bush presidency, the justices (probably Scalia) hit upon the argument that the Florida Supreme Court violated the Fourteenth Amendment’s equal protecion clause — that Florida’s voters were being treated unequally by the lack of a standard in counting ballots. The bitter irony of this decision, as Bugliosi points out, is that “the equal protection clause … was tailor-made for blacks” after the Civil War, intended to ensure the civil rights of former slaves. In the present case, the black vote was the most likely to be negated by the court’s decision to end the recount. > > The reaction of most jurists to the hijacking of the Fourteenth Amendment can be encapsulated in the words of Yale law professor Akhil Reed Amar, who has said that the court “failed to cite a single case that, on its facts, comes close to supporting its analysis and result.” [Here’s the cite for the full article](http://www.commondreams.org/views01/1209-03.htm) YOUR tinfoil hat is looking kinda sloppy, Dewey. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 17, 2004, 3:34pm UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/83 "2004-02-17T15:34:53Z")
So what, exactly, is your position on the application of the Equal Protection clause, **Evil Captor**? Was it misapplied in _Bush v Gore_? From reading your posts, it seems to me you’re uncomfortable with supporting a particular analysis. It seems to me that you’d much rather figure out what the “right” result should be in a particular case, and then figure out what methods of analysis we might apply to reach that result. Is that an unfair characterization? ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [February 17, 2004, 3:47pm UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/84 "2004-02-17T15:47:37Z")
> [@Evil Captor](#): > > You keep insisting that because the tool that Scalia uses to advance his scummy ideas of how we should live is well-designed, he can’t be evil. Riiiiiight. No, I’m saying that you can’t say whether someone is evil or not based on their adherence to a particular set of judicial principles. That is, Scalia _might_ be evil, but the evidence you have advanced does not support that conclusion. Given that you are the party advancing a claim (“Scalia is evil”), the burden of proof rests on your shoulders. You have not met that burden. > [@Evil Captor](#): > > You’re running out of sound arguments fast. Here we have a false dilemma AND an argumentum ad hominen – "It’s do things my way or your way, **the way of the mob**. How about this: maybe people who don’t want to do things your way have their own ideas how things should be done? Just because people don’t want to let you frame the argument, it doesn’t mean they’re a mob. My point is neither a false dilemma nor an _ad homimen_. That is, it neither presents a false binary choice nor does it attack you personally. What is does do is accurately describe your position. You dislike Scalia’s jurisprudence, so much so that you think the man evil. You aren’t willing to consider whether his positions might have merit (even as you continue to disagree). You aren’t willing to look clinically at the substance of Scalia’s position. You are content to label the man evil simply because you violently disagree, regardless of whatever intellectual merit his philosophy might have. That is the way of the mob: you ignore reason in favor of passion. The description is apt. > [@Evil Captor](#): > > No, but I have a mind, one that is capable of making inferences about people’s minds based on their words and actions. Just because you don’t understand something, it doesn’t mean it’s the product of “magical” powers like mind-reading. But in essence it is. You are inferring evil motives almost exclusively from Scalia’s judicial positions, positions which are largely derived from a well-known, coherent philosophy of constituitional interpretation. You claim that Scalia adheres to this philosophy not because he geuninely believes in the underpinnings of strict constructionism, but rather because he’s a horrible ogre of a person looking for whatever cover he can find to spread evil throughout the world. And you base that assertion on…what, exactly? What possible basis could you have for stating such a thing? Certainly Scalia has always defended his philosophy on the noblest of grounds. But you discount this as mere cover, a ruse to cover his real motivations. How again do you get at those motivations? You remind me of conspiracy theorists who claim that absence of evidence is just proof of how meticulous the conspirators were in covering their tracks. Your position, like theirs, is absurd. > [@Evil Captor](#): > > I’ve already said I think Scalia is a lot worse than any of the others. Even Rhenquist, who’s also evil, is evil in a different and lesser way than Scalia. But again, you’re willing to call someone evil based on nothing more than their judicial philosophy. OK, so you’ve got a sliding scale of evil. That doesn’t change the absurdity of your position. > [@Evil Captor](#): > > Why should I critique it when so many more qualified than me have called the decision unmitigated trash? It’s so cute that you cite to a Commondreams article instead of providing your own analysis. Tell me, if I go find a National Review article in response, will that make things a wash? ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [February 17, 2004, 3:52pm UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/85 "2004-02-17T15:52:13Z")
> [@jshore](#): > > To be fair to Scalia, if you read the full transcript, his argument is essentially this: “I have concluded that the death penalty is not immoral. And, this is a good thing because if I had concluded it was immoral I would have to resign as a judge because I could not endorse finding it unconstitutional based on my reading of the Constitution but I could also not rule in favor of something I found immoral.” He refuses to say whether or not he is a proponent or opponent of actually having death penalty laws, although I personally have a strong opinion of where he does stand on this from reading all that he says in that forum. > > Personally, I think that Scalia genuinely believes that he is just applying his “strict constructionist” judicial philosophy with utmost fairness and dispassion. However, I also think people are much better at believing that their personal or political beliefs don’t influence their judgement than they are at actually not letting these beliefs influence their judgement. Scalia reminds me of people I know who are, as a colleague at work so aptly puts it, “almost as smart as they think they are”…I.e., he is a brilliant legal mind who unfortunately overestimates his own brilliance and dispassionateness a bit. Sort of like another former colleague at work who was was a rational objectivist, believing he could prove the correct (more or less “libertarian”) points of view to be objectively correct from first principles. Very well said! ---
**Author:** ![KellyM](https://avatars.discourse-cdn.com/v4/letter/k/57b2e6/32.png) [@KellyM](https://boards.straightdope.com/u/KellyM)\ **Post date:** [February 17, 2004, 4:02pm UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/86 "2004-02-17T16:02:26Z")
> [@Dewey Cheatem Undhow](#): > > You dislike Scalia’s jurisprudence, so much so that you think the man evil. You aren’t willing to consider whether his positions might have merit (even as you continue to disagree). Whether or not his positions have “intellectual merit” has little bearing on whether or not he is evil. Intelligence and wisdom can be bent to the purpose of evil just as easily as they can to the purpose of good. It matters not how competently argued a thesis is, if its application works evil. And I (and many others) contend that Scalia’s application of his theory of jurisprudence (whatever it might be) works evil. You, obviously, disagree. ---
**Author:** ![jshore](https://avatars.discourse-cdn.com/v4/letter/j/b5e925/32.png) [@jshore](https://boards.straightdope.com/u/jshore)\ **Post date:** [February 17, 2004, 4:08pm UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/87 "2004-02-17T16:08:33Z")
> [@Apos](#): > > Even someone who thinks it’s applied fairly and equally has to concede that it would be unconstitutional to apply it without any regard to equal protection. **Scalia** (as mediumed through **jshore** ): “Equal protection”, what’s that? Oh, you mean that idea we applied in that case which should not serve as a precedent for any other case? Seriously, does anyone who defends Scalia want to explain to us how “equal protection” applies in Bush v. Gore but somehow doesn’t apply in death penalty cases (where the statistics clearly show there is nothing approaching equal application of the death penalty in regards to issues like race of the victim and race of the perpetrator)? I think **Elysian** ’s quote from Scalia really casts into the light what I find so abhorrent about a strict constructionist philosophy: By being able to find so few rights for people in the Constitution, it allows for tyranny of the majority…i.e., it allows the governments to make laws that I believe infringe on protected rights and often with no compelling government interest. (Interesting question: What does Scalia’s strict constructionist philosophy bring him to find on issues of economic / private property rights? My guess is that there, he conveniently finds stronger rights in the Constitution although I admit that I haven’t followed his juriprudence closely enough to know for sure.) ---
**Author:** ![jshore](https://avatars.discourse-cdn.com/v4/letter/j/b5e925/32.png) [@jshore](https://boards.straightdope.com/u/jshore)\ **Post date:** [February 17, 2004, 4:21pm UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/88 "2004-02-17T16:21:13Z")
> [@jshore](#): > > (Interesting question: What does Scalia’s strict constructionist philosophy bring him to find on issues of economic / private property rights? My guess is that there, he conveniently finds stronger rights in the Constitution although I admit that I haven’t followed his juriprudence closely enough to know for sure.) The more I think about this, the more I feel that it is an important test. For example, has Scalia generally ruled in favor of the government’s right to regulate (e.g., in environmental matters) or has he argued that the laws should be struck down for violating some right? I.e., is there really strong evidence that there are lots of rights that he doesn’t find in the Constitution…even many that conservatives find there…Or is it just restricted primarily to rights that liberals find in the Constitution? [I haven’t read Locher in detail…But I wouldn’t really count a case from way-back-when as showing that Scalia will disagree with conservatives. I.e., I want evidence that he disagrees with conservatives today on issues that matter to them, not conservatives of 50 to 100 years ago.] ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [February 17, 2004, 4:30pm UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/89 "2004-02-17T16:30:29Z")
> [@KellyM](#): > > And I (and many others) contend that Scalia’s application of his theory of jurisprudence (whatever it might be) works evil. You, obviously, disagree. Doesn’t bringing “good” or “evil” in sort of confuse the issue? First of all, I’m not sure his application actually does work evil, but even if it does, he’s a Justice, not a clergyman. It’s not his job to “do good”. It’s his job to rule on the law, as he understands it to be. ---
**Author:** ![Ramanujan](https://avatars.discourse-cdn.com/v4/letter/r/51bf81/32.png) [@Ramanujan](https://boards.straightdope.com/u/Ramanujan)\ **Post date:** [February 17, 2004, 5:06pm UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/90 "2004-02-17T17:06:48Z")
> [@jshore](#): > > Seriously, does anyone who defends Scalia want to explain to us how “equal protection” applies in Bush v. Gore but somehow doesn’t apply in death penalty cases (where the statistics clearly show there is nothing approaching equal application of the death penalty in regards to issues like race of the victim and race of the perpetrator)? you’ll have to demonstrate that the laws which are used to apply the death penalty are biased in some way before equal protection becomes an issue. if, at judicial discretion, the punishment is meted out disparately, that is a wholly separate issue from whether or not the death penalty itself violates the equal protection clause, and an issue with an entirely different solution than eliminating the death penalty as unconstitutional. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 17, 2004, 6:12pm UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/91 "2004-02-17T18:12:57Z")
**R** ’s point on the death penalty is well taken, and is pretty much covered in the article that **jshore** linked to in the first place. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [February 17, 2004, 6:23pm UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/92 "2004-02-17T18:23:10Z")
> [@jshore](#): > > The more I think about this, the more I feel that it is an important test. For example, has Scalia generally ruled in favor of the government’s right to regulate (e.g., in environmental matters) or has he argued that the laws should be struck down for violating some right? I.e., is there really strong evidence that there are lots of rights that he doesn’t find in the Constitution…even many that conservatives find there…Or is it just restricted primarily to rights that liberals find in the Constitution? Well, there _is_ this pesky thing called the takings clause of the fifth amendment… While Scalia disfavors the wholesale judicial creation of rights, he also favors vigorous enforcement of rights that actually exist in the constitutional text. This trancends ordinary political divides. Consider his opinion in [Kyllo v. US](http://laws.findlaw.com/us/000/99-8508.html): Scalia, writing for a 5-member majority that included Souter, Thomas, Ginsburg, and Breyer, held that the government had violated the fourth amendment’s search and seizure clause when it aimed a thermal imaging device at a suspect’s house in order to determine if the suspect was growing marijuana inside. That’s hardly a result that traditional law and order conservatives would applaud as a matter of policy, but it is consistent with Scalia’s stated judicial philosophy. > [@jshore](#): > > [I haven’t read Locher in detail…But I wouldn’t really count a case from way-back-when as showing that Scalia will disagree with conservatives. I.e., I want evidence that he disagrees with conservatives today on issues that matter to them, not conservatives of 50 to 100 years ago.] Conservatives today still dislike minimum wage and maximum hour laws of the type struck down in the _Lochner_ era (for the soundest of economic reasons, I might add). Doubtless many the less principled among them would leap at the chance to re-insert a “right to contract” into the constitution via judicial fiat. I understand your desire to arbitrarily exclude those things that inconveniently run counter to your thesis, but I hardly think it appropriate for you to do so. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 17, 2004, 6:25pm UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/93 "2004-02-17T18:25:12Z")
I am absolutely opposed to the death penalty – but I don’t believe that there is a colorable Equal protection argument to be made against it. This is, perhaps, why there is a disconnect in this discussion. I am perfectly able to understand the distinction – even though opposed to the death penalty, I recognize that those who favor it have legitimate reasons to do so. **KellyM** ’s method of analysis would apparently have me reason that since the death penalty is evil, those who support it are evil. She would also, I believe, have me applaud a court finding that the death penalty violated equal protection guarantees. This I would not do - it would be reaching the right result by the wrong path, and would open us up to more egregious abuses of judicial authority down the road. You may cheer if the Supreme Court finds, grounded in Due Process, a fundamental right to sodomy, yet you jeer when the same Court finds that ballot counting in Florida flawed. You cannot pick and choose. Yet that’s consistently what I read. People WANT to pick and choose; as long as the Court is serving up results they wish for, they are happy - no matter the method. People don’t seem to focus on the process - merely the result. But the process is more important than the result, because the process guides future results; a single case is not as important as the progeny it may spawn. - Rick ---
**Author:** ![jshore](https://avatars.discourse-cdn.com/v4/letter/j/b5e925/32.png) [@jshore](https://boards.straightdope.com/u/jshore)\ **Post date:** [February 17, 2004, 7:09pm UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/94 "2004-02-17T19:09:21Z")
> [@Ramanujan](#): > > you’ll have to demonstrate that the laws which are used to apply the death penalty are biased in some way before equal protection becomes an issue. > > if, at judicial discretion, the punishment is meted out disparately, that is a wholly separate issue from whether or not the death penalty itself violates the equal protection clause, and an issue with an entirely different solution than eliminating the death penalty as unconstitutional. Well, I am not arguing that the death penalty has to be ruled completely unconstitutional but I do think it is clear as day from the statistics that it has been applied in a way that violates equal protection and **something** has to be done about that. Scalia disagreed when this came before the court. And, why do you claim I have to demonstrate the laws themselves are biased? I think the clear meaning of “equal protection” is that the laws must be applied in an equal manner in how they are carried out. It is not “equal protection” under the law if the laws are applied in an unequal manner. > [@Bricker](#): > > I am absolutely opposed to the death penalty – but I don’t believe that there is a colorable Equal protection argument to be made against it. I am close to being in the opposite camp. I.e., I am against the death penalty not because I necessarily think it to be immoral in principle…I don’t think it is necessarily so…but because we have clearly been unable to carry it out in a fair and impartial way in practice. By “fair and impartial”, I mean both that the error rate (executing the innocent) be zero or damn close to it and that it be applied impartially, which would mean at a minimum that it is applied in a manner that is not biased by race of victim or perpetrator. > [@Dewey Cheatem Undhow](#): > > Conservatives today still dislike minimum wage and maximum hour laws of the type struck down in the Lochner era (for the soundest of economic reasons, I might add). Doubtless many the less principled among them would leap at the chance to re-insert a “right to contract” into the constitution via judicial fiat. I understand your desire to arbitrarily exclude those things that inconveniently run counter to your thesis, but I hardly think it appropriate for you to do so. Okay, let me phrase this a little differently…Scalia gets points for coming up on the “liberal” side of issues that are still on the forefront of case law today. He does not earn points in my book by saying he’d be on the liberal side of an issue that is already basically settled. So, I give him points for Kyllo but not for Locher (unless you can show me that there is really a prayer that the conservatives could get such a ruling today) or Brown v. Board of Education. As the old joke goes,: A man comes up to a biali stand and asks how much the bialis are. The baker tells him there a dollar a piece. The man says, ‘That is a rip-off…The guy down the street is selling them for 25 cents a piece.’ “So why don’t you buy from him?” asks the baker. ‘Well, he is out of them.’ replies the man. To which the baker replies: “Well, when I am out of bialis, I sell them for 25 cents a piece too.” ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 17, 2004, 7:16pm UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/95 "2004-02-17T19:16:11Z")
> [@jshore](#): > > I am close to being in the opposite camp. I.e., I am against the death penalty not because I necessarily think it to be immoral in principle…I don’t think it is necessarily so…but because we have clearly been unable to carry it out in a fair and impartial way in practice. By “fair and impartial”, I mean both that the error rate (executing the innocent) be zero or damn close to it and that it be applied impartially, which would mean at a minimum that it is applied in a manner that is not biased by race of victim or perpetrator. I’m not persuaded that it IS biased by race… I believe it’s biased against the poor, which unfortunately does tend to have a strong correlation to race, especially in urban environments. But that’s true of every single aspect of the justice system, and we can hardly invalidate assault laws, for example, by observing that a disproportionate number of people convicted for violent assaults are of one race. I agree that the execution of the innocent is a huge problem, but that is not an equal protection argument - if anything, it’s a due process argument. - Rick ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [February 17, 2004, 7:17pm UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/96 "2004-02-17T19:17:40Z")
> [@jshore](#): > > So, I give him points for Kyllo but not for Locher (unless you can show me that there is really a prayer that the conservatives could get such a ruling today) or Brown v. Board of Education. Hey, a few key appointments here and there, and who knows what the court’ll do… And it’s Loch **n** er. ---
**Author:** ![Ramanujan](https://avatars.discourse-cdn.com/v4/letter/r/51bf81/32.png) [@Ramanujan](https://boards.straightdope.com/u/Ramanujan)\ **Post date:** [February 17, 2004, 8:39pm UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/97 "2004-02-17T20:39:10Z")
> [@jshore](#): > > And, why do you claim I have to demonstrate the laws themselves are biased? I think the clear meaning of “equal protection” is that the laws must be applied in an equal manner in how they are carried out. It is not “equal protection” under the law if the laws are applied in an unequal manner. in order to strike down the death penalty itself based on its unconsitutionality (by the equal protection clause), you must first demonstrate that laws that impose the death penalty do so in an unequal fashion. otherwise, you are policing the executives, not the laws. the actions of the people who apply the laws do not make the laws unconsitutional. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [February 17, 2004, 8:48pm UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/98 "2004-02-17T20:48:35Z")
> [@Bricker](#): > > You may cheer if the Supreme Court finds, grounded in Due Process, a fundamental right to sodomy, … Yet again the decision in _Lawrence_ is mischaracterized. _Lawrence_ found that people had a right to be left alone in their bedrooms, not that sodomy _per se_ was a Constitutional right. > [@](#): > > Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions. In fact, the Court’s opinion specifically states the question is not whether _sodomy itself_ is protected. > [@](#): > > To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. > > ``` > This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice. > > ``` > [@Bricker](#): > > You cannot pick and choose. Actually I can. I choose to cheer when the court actually upholds the principles of Liberty (as in _Lawrence_ and \* Kyllo\*) and hiss when it hinders Justice (as it did in _Bush v Gore_) ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 17, 2004, 9:07pm UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/99 "2004-02-17T21:07:45Z")
**jshore** : It’s not necessary to argue this as a hypothetical. If you remember, the SCotUS ruled the death penalty unconstitutional in 1972 in _Furman v. Georgia_ on 8th amendment grounds (cruel and unusual punishment), not on an equal protection argument. Of course, the court re-instated the death penalty in 1976. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [February 17, 2004, 10:22pm UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/100 "2004-02-17T22:22:25Z")
> [@Evil Captor](#): > > The critical vote was the 5-4 decision, which went strictly along party lines. Well, no, actually - at least, if you define the party affiliation of the justices by the Presidents who appointed them. The five in the majority were Rehnquist (Nixon/Reagan), O’Connor (Reagan), Scalia (Reagan), Kennedy (Reagan) and Thomas (Bush I). The four dissenters were Stevens (Ford), Souter (Bush I), Ginsburg (Clinton) and Breyer (Clinton). That makes two Republican appointees in the dissent. [Previous page](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329.md?page=4) [Next page](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329.md?page=6)