SuperScalia, Man of Supreme Intellect

[CountDeMoney]

Antonin Scalia says abortion, gay rights are easy cases

WASHINGTON (AP) — Justice Antonin Scalia says his method of interpreting the Constitution makes some of the most hotly disputed issues that come before the Supreme Court among the easiest to resolve.

Scalia calls himself a "textualist" and, as he related to a few hundred people who came to buy his new book and hear him speak in Washington the other day, that means he applies the words in the Constitution as they were understood by the people who wrote and adopted them.

So Scalia parts company with former colleagues who have come to believe capital punishment is unconstitutional. The framers of the Constitution didn't think so and neither does he.

"The death penalty? Give me a break. It's easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state," Scalia said at the American Enterprise Institute.

He contrasted his style of interpretation with that of a colleague who tries to be true to the values of the Constitution as he applies them to a changing world. This imaginary justice goes home for dinner and tells his wife what a wonderful day he had, Scalia said.

This imaginary justice, Scalia continued, announces that it turns out "'the Constitution means exactly what I think it ought to mean.' No kidding."

As he has said many times before, the justice said the people should turn to their elected lawmakers, not judges, to advocate for abortion rights or an end to the death penalty. Or they should try to change the Constitution, although Scalia said the Constitution makes changing it too hard by requiring 38 states to ratify an amendment for it to take effect.

"It is very difficult to adopt a constitutional amendment," Scalia said. He once calculated that less than 2 percent of the U.S. population, residing in the 13 least populous states, could stop an amendment, he said.

In a lengthy question-and-answer session, Scalia once again emphatically denied there's a rift among the court's conservative justices following Chief Justice John Roberts' vote to uphold President Barack Obama's health care law. Scalia dissented from Roberts' opinion.

"Look it, do not believe anything you read about the internal workings of the Supreme Court," he said. "It is either a lie because the press knows we won't respond — they can say whatever they like and we won't respond — or else it's based on information from someone who has violated his oath of confidentiality, that is to say, a non-reliable source. So one way or another it is not worthy of belief."

"We can disagree with one another on the law without taking it personally," he said.

The issue of gay rights, or more specifically same-sex marriage, is expected to be a big one in the term that began this week. While the justices initially were scheduled to discuss the topic at their private conference in late September, it now appears likely that they will not make a decision about whether to take up a gay marriage case until after the presidential election, which would mean arguments would not take place until the spring.

The justices have a variety of pending appeals they could choose to hear that deal in one way or another with gay marriage.

One set of cases looks at whether same-sex couples who are legally married can be deprived of a range of federal benefits that are available to heterosexual couples. Another case deals with California's constitutional amendment banning gay marriage and federal court rulings striking down the amendment. An Arizona case deals with a state law that revoked domestic partner benefits, making them available only to married couples. Arizona's constitution bans gay marriage.

[Faeelin]

Posner had a pretty interesting piece a few weeks ago basically calling him a fraud. http://www.tnr.com/article/magazine/books-and-arts/106441/scalia-garner-reading-the-law-textual-originalism?page=0,0. Worth a read, if you're into that sort of thing.

[Valmy]

That seems like a very high standard Scalia holds himself to.  Does he measure up?  Anybody familiar with his SC record?

[MadImmortalMan]

That seems like a very high standard Scalia holds himself to.

That the Constitution means what it says? Seems pretty simplistic to me. Not a high standard at all.

[CountDeMoney]

That seems like a very high standard Scalia holds himself to.  Does he measure up?  Anybody familiar with his SC record?

Scalia is an extremely intelligent man, arguably one of the most intelligent to sit on the bench since WW2, and that's saying something.

But from reading him, particularly as his tenure has progressed into the late 90s and into the 2000s, he has a habit of relying on that intellect to the point that he pretty much wings it.  On more than one occasion, I was struck with the impression that he sorta made things up as he went along to come to an opinion, rather than rest on precedent. 
For someone who fashions himself as an originalist, he certainly thinks outside the box sometimes.  Way out.

In short, I think he'd make a fantastic Languishite.  Clarence Thomas, not so much.  He'd be a lurker.

[Sheilbh]

That seems like a very high standard Scalia holds himself to.

That the Constitution means what it says? Seems pretty simplistic to me. Not a high standard at all.

That's not what he says though. It means what it says understood by its authors. I've no issue with literalism but that sounds like judicial interpretation by Hilary Mantel.

[Kleves]

I like Scalia (I think he's the court's best writer) but by no means is he always consistent in his decision-making.

[Martinus]

Oh how I wish he croaked.

[Scipio]

Scalia is a great writer, but a shitty reader.  The longer his tenure on the Court, the less consistent he has become.  Thomas is probably the most consistent interpreter of the Constitution; Scalia is so smart he's all over the map.

The one thing about Scalia is that he is not as knee-jerk as Stevens.  Stevens had a tendency to go all patriotic and fascist at the drop of a hat,  like Felix Frankfurter.  Those guys were scary.  Scalia is a lot less scary, largely because he's more intellectually consistent than Stevens.  But he's given up serious scholarship, IMHO.

And originalism makes no sense, unless you believe in a static lexicography and scientific philology, which are functional impossibilities.  The problem is that Scalia applies his Constitutional paradigm of interpretation to statutes, which is silly.  The plain meaning of the statute should govern, not what the plain meaning was when it was written.  Statutes change; the Constitution does not; but even so, you cannot sit down and say definitively what the 1st Amendment meant when it was adopted.  It is always going to be an approximation.  But there is a significant difference between a statute and the Constitution, and treating them differently doesn't automatically create illegitimacy.

I would agree with Scalia that legislative history is worthless, and so are signing statements or any other non-operative bullshit courts may use to interpret statutory language.  If the statute doesn't say what you wanted it to mean, tough shit.  That's the language that was enacted, and you are stuck with it.  Bitches.  If the Court can't understand what your statute means, it should not have to be burdened with interpreting it.

[Razgovory]

Shame we don't have a judge on this board to give us an insider opinion. 

[Scipio]

Shame we don't have a judge on this board to give us an insider opinion.

This is the problem with you.  It's possible to have a valid opinion without relying on authority.  But it must be backed up with facts.  And evidence.  And shit like that.

[Razgovory]

Shame we don't have a judge on this board to give us an insider opinion.

This is the problem with you.  It's possible to have a valid opinion without relying on authority.  But it must be backed up with facts.  And evidence.  And shit like that.

You mistake me, sir.  I wasn't actually making a statement about experience, authority or facts.  I was making a dig at you.  Why?  Cause I find it funny.

[Eddie Teach]

I still find toaster jokes funny. But then, I'm rather immature.

[The Brain]

I still find toaster jokes funny. But then, I'm rather immature.