Why is there so much hatred toward Justice Scalia?

Great Debates
101

Fine, so the Supreme Court could strike down certain, if not all, current death penalty convictions and tell the states to impose the law in a way that satisfies equal protection. I agree that they don’t have to completely invalidate the death penalty. But, they also can’t just say, “Well…It doesn’t really violate equal protection because the laws themselves are okay and they are just being applied in a way that yields these very unequal results.” (Well, maybe they can do that since they apparently did…but they ought not to. I haven’t read that decision so I don’t know what the majority’s reasoning was.)

This is, by the way, analogous to Bush v. Gore where the court did not invalidate Florida election law but only the way the Florida Supreme Court was applying it.

Well, yes, but those aren’t really the cases I am interested in. The case I am interested in is a more recent one where the justices were presented with the statistical data on how capital punishment is applied.

Well, yeah, I think the whole justice system is pretty screwed up on this account. The stakes are higher for capital punishment but these other issues need to be dealt with too.

In some sense, I understand your argument in say “How can we do anything because there is really no equal protection in any of these cases?” That is a fair question that the Courts have to deal with eventually but I think it is not an excuse to just throw up our hands and say, “Oh well…To hell with equal protection” or “Oh…that’s not what we mean by equal protection. We mean it to apply only in elections where we (those of us who aren’t so concerned about it the rest of the time) want the Republican candidate to win.”

He probably shouldn’t have used “party lines” but instead “ideological lines”. Clearly, although Stevens and Souter were appointed by Republicans, their juriprudence is viewed much more favorably by Dems than Reps. In other words, their alright! :wink:

102

Does anyone else find it amusing that just a short time ago, Dewey spent several days arguing vehemently that the Equal Protection clause is only relevant to racial discrimination (and, he reluctantly admits, to gender discrimination on the basis of stare decisis, but those were regrettable decisions), and here in this thread he gives Scalia a complete pass on the use of Equal Protection in Bush v. Gore, which has nothing to do with race or gender, and indeed, requires a very broad reading of the clause, not dissimilar from that which I myself suggested, and for which Dewey excoriated me?

Ah, if only I had a thorough knowledge of SCOTUS precedents, I should have cited Uncle Antonin to support my views. :smiley:

(As an aside, the remedy in Bush v. Gore was ridiculous, but that’s another matter.)

103

So what’s the method of analysis? Should judges around the country simply call you before rendering a decision?

You can cheer and jeer, I suppose, all you like. But that doesn’t constitute an actual method of analysis. You did propose some hokey business relating to “innate characteristics,” as I recall, in another thread, but didn’t return to defend it after I pointed out in a hypo that your method let me restrict sex toys sold.

So we’re back to this meaningless exercise. Apparently what you really want is for the Equal Protection clause to be replaced with the Homebrew Approval clause.

  • Rick
104

How did the various justices rule on that case?

105

Actually, the sodomy laws were struck down for failing to have a “rational basis”, not because there is a “fundamental right” to commit sodomy.

106

Kindly quote where I said I agreed with the reasoning of the majority in Bush v. Gore and you might have a point. I think you’ll find I said no such thing.

All I said was that the case had a clear textual hook, i.e., there are words there that could arguably directly support the opinion. I didn’t say that I thought that hook had been interpreted properly. My point was that there is a clearer textual basis for the holding in Bush v. Gore than there were in the right to privacy cases, not that Bush v. Gore represents a proper interpretation of the equal protection clause.

While I do believe that the equal protection clause does not apply to voting rights, there are several significant Supreme Court precedents extending it to that area. Stare decisis might well demand recognition of that concept – that is, it may not be correct, but it may be so far ingrained into constitutional jurisprudence as to demand recognition on stability grounds. I’ve written before about my support for the concept of full incorporation of the Bill of Rights to the states on similar grounds – I think it’s incorrect as a matter of first impression, but has become such an integral part of our constitutional history that to avoid it would be very damaging – the cure worse than the disease.

Are the equal-protection-in-election cases similarly ingrained into our judicial framework in a manner sufficient to justify Bush v. Gore? Hell if I know. I’m genuinely torn by the decision, and I can pretty much see valid arguments either way. I’m fairly agnostic on the question of the appropriateness of the decision.

So in the future, please don’t put words in my mouth.

BTW, I never said that equal protection is “only relevant to racial discrimination;” I only said non-race cases are subjected to a much, much lower threshhold of scrutiny.

Also BTW, Scalia’s opinion in Bush v. Gore was not wholly premised on the equal protection clause; he joined the concurrance based Article II and certain provisions of federal election law.

107

This is demonstrably false. “Rational basis” is an equal protection test. Lawrence struck down sodomy laws based on notions of substantive due process, not equal protection. Only Justice O’Conner would have looked to equal protection as the basis for striking down sodomy laws.

108

Don’t you think it a bit presumptuous to suggest you have a corner on what is capital-L Liberty and capital-J Justice? Bricker has this exactly right: this is essentially the Homebrew Approves test, and not a principled test rooted in the constitution itself.

109

Coming late (and undoubtedly inadequately armed) to this debate, I thought I’d interject my uneducated opinion that strict construction all too often seems to provide a cover for the advancement or protection of conservative views, favoring relatively more privileged parties, and resisting the extension of rights and benefits to less advantaged parties. I am not sure how strict constructionists get over the fact that they are strictly relying upon words of primarily wealthy men, including slave owners. From my viewpoint, some amount of distancing from that perspective is not necessarily a bad thing.

I also feel that a great many Constitutional rights are of little meaning if not acompanied by a right to privacy within which they might be enjoyed. An understanding of a right to privacy against government intrusion is necessary to my understanding of the government I wish my country to have. IMO people adopting a strict interpretation position against privacy rights do so in support of many “law-and-order” agendas - again, consistent with what are generally considered a conservative platform. (Yes, I am aware of - and pleased with and suprised at - the recent search decisions. I readily admit that examples are readily available to counter each point I express here. I am not about to get into a citation battle.)

I also think strict construction is somewhat of a copout, relying on the incredibly unwieldy mechanism of constitutional amendment.

I think strict construction requires some pretty extreme gymnastics, to construe the founders’ intent with respect to medical, technological, and social developments unimaginable at the time.

I guess I am a strong federalist, believing that individuals need to be protected against the excesses of individual states. Easy example (again - IMO), a woman desiring an abortion should not be disadvantaged by the state she happens to live in.

Scalia’s attitude does not really help either. I freely admit he was an entertaining panelist on - what was that PBS show debating ethics?

Finally, as a nontheistic humanist, I am wary of someone who appears to be so strongly aligned with a particular religious denomination. Especially a denomination which is - uh - arguably on the conservative and intolerant side. I can understand why women or gays might not be thrilled with a strongly Catholic jurist, much as that jurist might try to keep his religion’s dogma separate from his official function.

As I said, these are merely my opinions. No independent cites will be forthcoming. :wink: Of course, since the OP asked why emotions such as “hatred” are directed at a public official, it seems odd to require factual support.

It is certainly legitimate for me to dislike an individual who has considerable influence on the character of our society, and seems - on balance - to prefer that it reflect values I disfavor.

110

Perhaps you should restate the hypothetical sex toy case because I don’t recall it. I can’t see how my point of view can be warped to allow you to ban the sale of sex toys. It’s quite telling that you consider a strict strutiny standard based on innate characteristics to be “hokey”. We can both acknowledge that the courts have strict, heightened and reasonable basis levels of scrutiny. Right? My principle is that any discrimination based on an innate charactistic – such as gender, race, sexual orientation, hair color, number of toes – should meet strict scrutiny. I’ll allow that the sale of sex toys doesn’t rise to the level of strict scrutiny, but I can’t even see a rational argument for the complete ban of them.

I’m surprised (okay, not really) that you are unable to see the distinction between extending Liberty and constricting the same. Considering that you think Majority Rules is a valid reason for any rule, it’s not really difficult to see why you like Strict Constructionalism. It is the theory of jurispudence that allows the most Authoritarian Society.

My priniciple is clear and easy. Is there a legitimate state interest in restricting an individual’s or group’s liberty? There must be an indentifiable harm that a restriction seeks to prevent to pass muster. If not, then it fails Due Process and/or Equal Protection.

It comes to what is your basic view of Liberty. I believe that the Individual should be mostly free from coersion by a majority or government. In matters of private and consentual behavior neither the majority nor the government is allowed to impose their standards without a clear, rational reason.

The problem in our discussions is the you try to catch me in some inconsistency. While that may happen, it hasn’t yet. But really that’s a dodge for you. You have yet to explain how the laws in Lawrence or other forms of discrimination would have even meet a rational basis test beyond saying that “rational basis is nearly impossible to fail.” You may be happy with an Authoritarian government ruled by the Tyranny of the Masses. I’m not. I’m glad that our Constitution has protections built into it. The 14th, the 9th and other Amendments are there for a reason. Whether the original authors intended Equal Protection to protect homosexuals is irrelevant.

111

Right. Because, y’know, it’s conservatives who propose things like minimum wage laws and maximum hour requirements, and it’s those damned liberals who are looking to invent things like a constitutional freedom of contract. :rolleyes:

Odd you would say this, since the first use of what has become known as “substantive” due process – the principal engine of judicial rights creation – was by Justice Taney in Dred Scott. A strict constructionist view of the constitution would not have required the return of Mr. Scott to his owner (though one could argue that the fifth amendment would demand recompense of his owner, that issue was not present in that case).

I leave it as an exercise for the reader to determine what is the bigger cop out: strict constructionism, or running to the judiciary in order to avoid the difficult work required to change the constitution.

Strict constructionism has always made accomodations for new technology. Kyllo is a case in point, but there are many others. Indeed, the search and seizure clause is a veritable laboratory for the application of new technology to extant constitutional text – ever since the first wiretap was invented, strict constructionists have extended the search and seizure clause to cover new inventions.

112

Leaving aside your usual nasty ad hominem insult to those with whom you disagree, the statement above is incorrect.

Strict constructionism is the theory imposing the greatest limits on authority. Authorities, such as justices, are answerable to the plain sense of the Constitution, and are prevented by it from imposing their authority on society by finding new “rights”, and imposing them on the rest of us by fiat.

Under the system of “the Constitution as living document”, anything that sounds like a good idea to five Justices is mandatory, and not subject to review. “Rule by judges” is far more authoritarian than “rule by majority as limited by the text of the Constitution”. Once you have rejected the limits of the Constitution, you have rejected virtually any limits at all.

You need to look farther than “I want my way on the issue of the day”. As Bricker and Dewey have pointed out, process and principle is at least as important as result. Once you let the genie of unconstrained judicial power out of the bottle, how do you get it back when it starts imposing outcomes that you and I would agree are bad?

Regards,
Shodan

113

So here’s a scenario: It’s last summer. John Paul Stevens has resigned. Karl Rove, casting about for a outspoken advocate of strict construction with no skeletons in his closet, has been monitoring the SDMB, and suggests you to the President. He nominates you, Dewey, and, after a severe grilling by Sen. Kennedy, you’ve been consented to by the Senate. You’ve just had oral arguments and gotten all the briefs on Lawrence and Garner v. Texas, and the other eight justices are split 4-4. Both the Chief and the senior Associate on the other side have indicated that if you’ll vote on their side, you get to write the decision.

Precis what you’d write, and explain why.

114

Pretty much what Justice Thomas wrote, and for the same reason.

I’m surprised you’d ask. Did you expect something different?

115

Homebrew:

Can you explain what you think the purpose of the constitution is? If justices should rule solely on the principle of liberty, and the constitution is just some sort of guideline, why do we even need it all all?

116

Thanks for the quick answer.

Yeah, I did – something based on O’Connor’s rationale – which leads me to think I’ve been misunderstanding a lot of what you say.

Peace!

117

Pointing out that the majority relied solely on SDP while O’Connor alone wanted to rely on equal protection does not amount to an endorsement of either viewpoint. I’m not sure where the misunderstanding lies.

118

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

119

So far as I can see, Homebrew has quoted the enitre text of what he believes the Constitution should say. Niggling little details like the limits of federal power should be erased, replaced with a document that consists of the Preamble and, perhaps, a system establishing a federal court system and a monarchy of Homebrew-appointed successive rulers to pass on judgements of what constitutes Liberty.

The notion of self-governance is actually fully supported by Homebrew, who takes it quite literally. He believes he, himself, and his notions should govern us all.

120

Heaven forbid that we would have judges imposing rights onto us! Geez, it is just such an imposition to have judges telling us that we can’t go around arresting people in their bedrooms for stuff that has nothing to do with us! How is this a greater imposition of authority than allowing the government free reign to regulate what goes on in our bedrooms?

And, as those of us on this side have argued here, the “strict constructionist” viewpoint doesn’t really seem to be significantly more objective than the “living document” one…at least as its adherents have applied it. It only claims to be more objective. It is very much like the difference, as I understand it, between traditional statistical methods and Bayesian methods. The traditional methods sweep the non-objectivity under the rug whereas the Bayesian methods acknowledge it more honestly.