The Bill of Rights is a CHECK ON DEMOCRACY. Where fundamental rights are concerned, the majority DOES NOT RULE. Period. This has been the case since 1791, when the first ten amendments went into force as a check on the tyranny of the majority. Of course, Scalia is willing to have constitutional rights trump majoritarian legislation if the ox being gored is one he favors.
His comparison of homosexuals to child molesters is yet more evidence that he has no business on a Court once occupied by giants such as William Brennan, Benjamin Cardozo, and Louis Brandeis.
Indeed, what is most astonishing about Scalia is the universal assumption that he is an unparalleled legal genius. He is smarter than the average person, but he was no match for his unheralded former colleague Justice Souter, whose concurrence in perhaps the most important religion case of the last 25 years, Lee v. Weisman, beat Mr. Scalia at his own game of statutory interpretation and divinations of our “Founders’ intent.”
Here is what Antonin had to say of the Founders: “And they also knew that nothing, absolutely nothing, is so inclined to foster among religious believers of various faiths a toleration -- no, an affection -- for one another than voluntarily joining in prayer together, to the God whom they all worship and seek.” In Antonin’s world, there's no place for atheists, Deists, or Buddhists, and there never was. Perhaps he thinks there’s no principled basis for distinguishing them from child molesters.
His comparison of homosexuals to child molesters is yet more evidence that he has no business on a Court once occupied by giants such as William Brennan, Benjamin Cardozo, and Louis Brandeis.
Indeed, what is most astonishing about Scalia is the universal assumption that he is an unparalleled legal genius. He is smarter than the average person, but he was no match for his unheralded former colleague Justice Souter, whose concurrence in perhaps the most important religion case of the last 25 years, Lee v. Weisman, beat Mr. Scalia at his own game of statutory interpretation and divinations of our “Founders’ intent.”
Here is what Antonin had to say of the Founders: “And they also knew that nothing, absolutely nothing, is so inclined to foster among religious believers of various faiths a toleration -- no, an affection -- for one another than voluntarily joining in prayer together, to the God whom they all worship and seek.” In Antonin’s world, there's no place for atheists, Deists, or Buddhists, and there never was. Perhaps he thinks there’s no principled basis for distinguishing them from child molesters.
34
Scalia should reread Madison v. Marbury.
20
Justice Scalia is 100% correct. It is not up to 9 unelected lawyers to make the laws of our land. The SCOTUS only job is to rule on the constitutionality of a law. If it finds a law unconstitutional , then it gets sent back to the Congress to be either rewritten or discarded. SCOTUS is not empowered to MAKE laws. That is what we have a Congress for
6
Here’s the good news: There's no conservative jurist more respected, or more deserving of respect, than Richard Posner. His published views on Justice Scalia's Constitutional rantings can be expected to influence other jurists, and keep Scalia's doctrinaire opinions - so far mostly in dissents and in occasional public forums - from metastasizing.
29
Anyone who know the Constitution knows that the Supreme Court doesn't follow the exact wording of the document, and that that is a a good thing. Heck, it says congress can't limit free speech at all, which would be make no sense. So both liberal and conservative Justices are really following the principles of the Constitution to best limit the power of the government for the sake of liberty while empowering it to provide for the common good. The problem is that liberals admit this and explain their reasoning while conservatives like Scalia obfuscate, claiming that the wording of the Constitution doesn't allow them to help liberal positions but does help them intervene to help conservatives - like saying flag burning is not "speech" so the government can stop it, but money is "speech" so the government can't limit it from being spent on political expression. In the end, the only cover for the inconsistency is to keep saying you're not inconsistent, which works well among supporters, but doesn't make your position any more true.
Justice Scalia is a simple political salesman, not a Justice worthy of the name.
Justice Scalia is a simple political salesman, not a Justice worthy of the name.
31
Justice Antonin Scalia is our nation’s daily reminder why we desperately need term limits for our federal judges. Enough is more than enough.
11
In the case of BROWN v. ENTERTAINMENT MERCHANTS' ASSOCIATION (2011), the Supreme Court struck down a California law prohibiting the sale of violent video games to minors except under parental supervision. Depictions of extreme violence, the Court reasoned, are protected speech under the First Amendment. The vote was 7-2
One Justice, Clarence Thomas, in dissent, argued that the Court's reasoning in the decision was foreign to the outlook of the Framers of the Constitution. He (or rather his clerks) adduced a large body of historical evidence on 18th Century American views of child rearing, and similar topics, to underscore the point.
And Scalia? He wrote the majority opinion!
Originalism or "textualism", in Scalia's hands, are a purely arbitrary instrument. So is his appeal to popular sovereignty here. He is still making the same "anti-elitist" diatribes as he did at the time of LAWRENCE, even though public attitudes have clearly changed. Popular sovereignty in the form of an overwhelming vote of Congress didn't affect his view of the Voting Rights Act in Shelby Co v. Holder.
Constitutional interpretation, for him, is a malleable, pliable tool in the service of his prejudices (cf also the examples of Kevin C below). Despite all his melodramatic flourishes, history is likely to remember him as a pretty sad, sorry, bitter little figure who, in the guise of defending sacred constitutional "tradition", brought little but windy and fatuous vulgarity to the Supreme Court.
One Justice, Clarence Thomas, in dissent, argued that the Court's reasoning in the decision was foreign to the outlook of the Framers of the Constitution. He (or rather his clerks) adduced a large body of historical evidence on 18th Century American views of child rearing, and similar topics, to underscore the point.
And Scalia? He wrote the majority opinion!
Originalism or "textualism", in Scalia's hands, are a purely arbitrary instrument. So is his appeal to popular sovereignty here. He is still making the same "anti-elitist" diatribes as he did at the time of LAWRENCE, even though public attitudes have clearly changed. Popular sovereignty in the form of an overwhelming vote of Congress didn't affect his view of the Voting Rights Act in Shelby Co v. Holder.
Constitutional interpretation, for him, is a malleable, pliable tool in the service of his prejudices (cf also the examples of Kevin C below). Despite all his melodramatic flourishes, history is likely to remember him as a pretty sad, sorry, bitter little figure who, in the guise of defending sacred constitutional "tradition", brought little but windy and fatuous vulgarity to the Supreme Court.
15
ah..brings to mind that old song...
How do you solve a problem like Scalia?
How do you catch a cloud and pin it down?
How do you find a word that means Scalia?
A flibbertigibbet! A will-o'-the wisp! A clown!
How do you solve a problem like Scalia?
How do you catch a cloud and pin it down?
How do you find a word that means Scalia?
A flibbertigibbet! A will-o'-the wisp! A clown!
15
Shakespeare knew a thing or two about corrupted political power, as witnessed by Mark Antony's funeral oration for Julius Ceasar:
“The evil that men do lives after them;
The good is oft interred with their bones.”
If Scalia has done any "good," I'm not aware of it. But the evil that Scalia has brought upon the US (e.g., Citizens United) will outlive him and plague this country for years to come.
“The evil that men do lives after them;
The good is oft interred with their bones.”
If Scalia has done any "good," I'm not aware of it. But the evil that Scalia has brought upon the US (e.g., Citizens United) will outlive him and plague this country for years to come.
22
Am I the only one who noticed this - “Richard A. Posner is a judge on the United States Court of Appeals for the Seventh Circuit”? Is the public interest best served by Mr. Posner, a federal judge himself, publishing these comments on New York Times Op-Ed pages?
4
"In his dissent [he wrote] that “a system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” Funny, then, how he carped the diem on an infamous December day in 2000 and subordinated the will of the People - the electorate in that particular case - to the will not even of nine lawyers in robes, but of only five, any one of whom could have reversed the abomination that was wrought that day.
23
Despite Mr Scalia's status, his opinions show little common sense, empathy and even logic. He is a stubborn common lout. Not at all "patrician".
13
Is it possible that a supreme court justice, in this day and age, could be a bigot?Apparently so.
14
Richard Posner definitively describes Scslia with brutal accuracy: An intellectually bankrupt, hypocritical phony. Was he really regarded as an intellect when he taught at Chicago? Seems more like a school-yard bully.
19
Scalia or Thomas, which is the worst insult to justice in America?
10
I'm not going to try and be clever with some fancy-worded observations on this man, Scalia. I'll leave the word games to him. Suffice it to say that he's an abomination to the very concept of "equal justice under law" and has made the lives of countless people WORSE as a result of his morally corrupt and evil opinions. There are few people in this world that I would actually look forward to reading an obituary but Scalia is close to the top of my list. Unfortunately, these soulless people usually end up living a long time - as the saying goes, "God always takes the GOOD ONES first".
16
About the only thing consistent about Scalia is his inconsistency.
6
How quaint that Posner and Segall are looking for a principled consistent basis in any SCOTUS Judge's decisions.
These guys - and gals - can get around anything in the Constitution if they really want to.
And then, as in the decision that made George W. Bush POTUS, insouciantly say: "Oh, don't that as a precedent."
Meaning, there ain't no principle there.
BTW, same sex marriage is small change for Scalia's crusade. It would not be all that hard to get a majority of Americans to declare on religious grounds that abortion should not be legal under the Constitution, and then have SCOTUS throw it back to the states for a predictable red state-blue state divide on the legality.
These guys - and gals - can get around anything in the Constitution if they really want to.
And then, as in the decision that made George W. Bush POTUS, insouciantly say: "Oh, don't that as a precedent."
Meaning, there ain't no principle there.
BTW, same sex marriage is small change for Scalia's crusade. It would not be all that hard to get a majority of Americans to declare on religious grounds that abortion should not be legal under the Constitution, and then have SCOTUS throw it back to the states for a predictable red state-blue state divide on the legality.
3
Scalia is a religious ideologue. He'll cite the Constitution when he thinks it supports his opinion and deny its relevance when he thinks it doesn't. His position on the Court is a disaster, but there's apparently nothing that can be done about it. Too bad for the United States!
15
it’s surprising that so much ink is spent on the motives and outbursts of people like Trump and Scalia. they strike me as no more complicated than what they appear to be: self-infatuated bigots. boring.
14
Got it. He's always been a basher of homosexuality, women, minorities, and was really upset when they freed the slaves. He's been found out, his world has gotten smaller and he's left holding the bag for the corporations, the religious cabal and the oligarchs.
Remember, this is the man that refused to meet THE POPE, because the POPE is a lefty! Ha!
Scalia is a useless appendage of a very ugly, bygone era, a time when it was believed that those in any "higher position" had the right to stick their noses anywhere they wanted to. In the bedroom, in a uterus. In that long-ago time "rulers" could spew any hate-speech to justify anything. Comparing homosexuals to child-rapists is just hunky-dory to him: It always worked before, why wouldn't it now?
Exactly, Scalia... why doesn't it work now?
It doesn't work because his beloved Catholic Church is riddled with real child-rapists, a matter that he has never publicly addressed and thinks he doesn't have to.
No problemo, don't, but don't whine because other people have and have worked through that false comparison and come out on the other side understanding that there is a HUGE legal distinction between two consenting adults and a sexual predator raping a minor.
Public discussion has left Scalia (and Thomas, Alito and Roberts) by the wayside, relics of ancient tirades argued thousands of years ago. Scalia's comfort-zone is the absolute ruler of Saudi Arabia and the Sunni/Shiite War.
We, Americans, have moved on.
He needs to go.
Remember, this is the man that refused to meet THE POPE, because the POPE is a lefty! Ha!
Scalia is a useless appendage of a very ugly, bygone era, a time when it was believed that those in any "higher position" had the right to stick their noses anywhere they wanted to. In the bedroom, in a uterus. In that long-ago time "rulers" could spew any hate-speech to justify anything. Comparing homosexuals to child-rapists is just hunky-dory to him: It always worked before, why wouldn't it now?
Exactly, Scalia... why doesn't it work now?
It doesn't work because his beloved Catholic Church is riddled with real child-rapists, a matter that he has never publicly addressed and thinks he doesn't have to.
No problemo, don't, but don't whine because other people have and have worked through that false comparison and come out on the other side understanding that there is a HUGE legal distinction between two consenting adults and a sexual predator raping a minor.
Public discussion has left Scalia (and Thomas, Alito and Roberts) by the wayside, relics of ancient tirades argued thousands of years ago. Scalia's comfort-zone is the absolute ruler of Saudi Arabia and the Sunni/Shiite War.
We, Americans, have moved on.
He needs to go.
23
Scalia clearly does not represent mainstream America. He only represents Justice Scalia, an aging and bitter man whose rant becomes more scurrilous and abstruse with each passing year. No one quite knows in which dark area of his psyche the roots of his anger have taken hold. I wouldn’t want to shine light into this darkness, some nasty surprise might emerge.
15
Justice Scalia has become a captive of his own legend. He was brilliant as an appellate judge, and interesting in his early years on the SCOTUS. But he started to get caught in a feedback loop. By the time of the interlocutory phase of Bush v Gore, he invented a new constitutional right out of whole cloth (the right to an unclouded victory, lest folks forget). He's gone mostly downhill since.
6
It is high time to diversify the Supreme Court. Fewer Harvard-"educated" lawyers would be a good start. Put a few atheists on the court as well and how about a representative of the LGBT community? Hold the hypocritically religious in check!
10
When Scalia gets too old to be on the Supreme Court, he should run for president. He couldn't do worse than the last 7 years.
To equate homosexuals with child abusers just because both groups are minorities is as simple-minded as it is outrageous. Is Scalia that deranged or is he lying?
17
God help us if we get a Marco Rubio or Ted Cruz presidency. That would guarantee more justices on the Supreme Court who follow Scalia-like pretzel logic in support of right-wing prejudices.
15
What Antonin Scalia is to the Supreme Court, Ted Cruz would be to the presidency. They're cut from the same cloth.
7
Scalia may be "wrong" because he doesn't support special rights for a minority group (gays), but he is absolutely right about the SCOTUS' being used to overrule the legislature a/k/a the people's will. Those people should be far more concerned about this. I'm sure they are but only when it doesn't promote their point of view, which is to say, not really.
1
Almost every judge I've ever had the misfortune to come across has been a power crazed looney. Scalia's just another one.
3
Scalia transforms many of his personal biases into legal opinions in the same way the designers of Jim Crow made all of their rules and regulations very legalistic in order to seem legitimate and proper. But bigotry is bigotry. His is a formal and strident-Catholic POV that conflates his opinion with the Founding Fathers, a bunch of smart guys who disagreed about almost everything much of the time.
9
What is missed thus far in the extensive commentary on Justice Scalia is that he flaunts in public, with no sense of shame or restraint, opinions that are so partisan they should disqualify him from holding an office in which Americans collectively place so much sacred trust.
Supreme Court decisions, we must remember, unlike legislative actions are subject to further review only by the Supreme Court. Once we have a Plessy v. Ferguson or a Citizens United decision it takes yet another Supreme Court decision to overturn it. Scalia is a clear and present danger to our democracy, holding views that undermine the very institutions of American government, including the practice of judicial review. Yet we tolerate his malfeasance, as well as his ability to wreck further havoc on our society. We do not collectively cry out against what Judge Posner, one of the nation's most respected CONSERVATIVE members of the court, calls his "theocratic" world view.
Where is the public outcry? Why do we tolerate his continued presence on the bench? Is there any wonder why so many Americans have become disillusioned with the functionality of oru system when someone like Judge Scalia can survive in his official capacity despite his anti-constitutionalism and obvious disrespect for the secular, federalized democracy created by the founders?
Supreme Court decisions, we must remember, unlike legislative actions are subject to further review only by the Supreme Court. Once we have a Plessy v. Ferguson or a Citizens United decision it takes yet another Supreme Court decision to overturn it. Scalia is a clear and present danger to our democracy, holding views that undermine the very institutions of American government, including the practice of judicial review. Yet we tolerate his malfeasance, as well as his ability to wreck further havoc on our society. We do not collectively cry out against what Judge Posner, one of the nation's most respected CONSERVATIVE members of the court, calls his "theocratic" world view.
Where is the public outcry? Why do we tolerate his continued presence on the bench? Is there any wonder why so many Americans have become disillusioned with the functionality of oru system when someone like Judge Scalia can survive in his official capacity despite his anti-constitutionalism and obvious disrespect for the secular, federalized democracy created by the founders?
11
The arbitrary abuse of power to pursue personal agendas disregarding the role and responsibility of a SCOTUS member to dispassionately appraise issues within the frame of the law and the Constitution is what? Arrogance. Can we impeach a member of SCOTUS for dereliction of duty? We should. Ronald Reagan's arrogance lives on in his appointment of Scalia. He arrogates to himself the power to idiosyncratically interpret language while ignoring the intent of lawmakers who sought to address as best they could an issue before them that should be legally framed. Scalia's subjectivity should not be the standard yet, his prejudicial attitudes determine the law. Is freedom and democracy assured by such a man?
11
Justice Scalia is doing exactly what conservatives say they don't do, and that is legislate from the bench.
14
This is the type of Justice that a Republican will nominate and a Republican Senate will confirm. One more and all will be lost. Vote!
8
The rights enumerated in the Constitution and its amendments are largely the work of an elite, namely people like Franklin, Madison, Jefferson, Monroe, etc. who had high-minded ideals that drive the words of that glorious Constitution. Self-appointed elites (is there any other kind?) are capable of bad things, but not always. The democracy (representative, mind you) that we hold dear is the evolution of what that elite, AKA the Founding Fathers, created.
I would be more tolerant of Justice Scalia (I do try, mind you) if I didn't hear such words that subvert our basic principlaes.
I would be more tolerant of Justice Scalia (I do try, mind you) if I didn't hear such words that subvert our basic principlaes.
1
Using his logic one could justify any discrimination of a minority by a majority. Thank god his is the minority opinion.
7
The column title is a perfect characterization of Justice Scalia's philosophy. It accurately indicates a Justice who is out of touch with contemporary society and wrong on the important issues.His judicial swagger and love of the limelight define him.He validates this by wearing a 16th century Tudor Bonnet, made famous by Sir Thomas More, referring to Section 5 of the Voting Rights Act as a "racial entitlement", harboring views on homosexuality that can only be described as Homophobic, espousing a Majoritarian philosophy that could lead to a ban on inter racial marriage.Anton Scalia, in his 80th year, used terms like "head in a bag", and "mystical aphorisms of a fortune cookie" in referencing Justice Kennedy's eloquent majority opinion in Obergefell. Justice Scalia has often been characterized as the personification of Megalomania, so when he accused Justice Kennedy in his Obergefell Dissenting Opinion of "hubris"and being "egotistic" it was the equivalent of Lance Armstrong complaining about another cyclists use of P.E.D.'s
10
1. To call Scalia's position "majoritarian" theocracy would be to ascribe too much principal to him. If the majority of the US population were Muslim, or atheist (which it is), Scalia's judicial "philosophy" would adjust accordingly to eliminate their import. Call it for what it is: Christian Theocracy.
2. Don't let the legal citations, the footnotes, the occasional German, the neologism, the pseudo-doctrinal language fool you, Scalia is the Donald Trump of the Supreme Court.
2. Don't let the legal citations, the footnotes, the occasional German, the neologism, the pseudo-doctrinal language fool you, Scalia is the Donald Trump of the Supreme Court.
9
Scalia is the darling justice of fundamentalist religion in America. He and they (think) they want a majoritarian theocracy. They (think) this arrangement would not blow up in their faces and, in time, make America indistinguishable from Syria, Saudi Arabia, Iran. Sharia law writ in King James's English. Not possible, they contend.
Majoritarian Theocracy. The natural intent and arc of power is to accumulate more power. In time, as the sects of Christianity compete for their particular peculiarities to be the law of the land, holding all others to be heresy, which church will govern? Will it be the Roman Catholic version of Scalia's preference? The Baptists of Mike Huckabee's choice? Which branch of Baptist? Jehovah's Witnesses do not believe in or observe Easter or Christmas, nor do most congregations of The Church of Christ, at least not formally, though the percentage of individual parishioners with trees and presents under them in their living rooms is way up in the double digits.
Will failure to observe Christmas or Easter result in civil penalties. Beheading might be too extreme, at least in the early stages, but give it time.
Jews, whose welcome in America is often tenuous when they are bankers, may find their numbers as welcome in Houston as in Riyadh. Muslims...well, I think we already have the skids greased for their expulsion --excuse me, repatriation-- back to the sands of the Middle East.
Scalia and his supporters are wrong. Dangerously wrong.
Majoritarian Theocracy. The natural intent and arc of power is to accumulate more power. In time, as the sects of Christianity compete for their particular peculiarities to be the law of the land, holding all others to be heresy, which church will govern? Will it be the Roman Catholic version of Scalia's preference? The Baptists of Mike Huckabee's choice? Which branch of Baptist? Jehovah's Witnesses do not believe in or observe Easter or Christmas, nor do most congregations of The Church of Christ, at least not formally, though the percentage of individual parishioners with trees and presents under them in their living rooms is way up in the double digits.
Will failure to observe Christmas or Easter result in civil penalties. Beheading might be too extreme, at least in the early stages, but give it time.
Jews, whose welcome in America is often tenuous when they are bankers, may find their numbers as welcome in Houston as in Riyadh. Muslims...well, I think we already have the skids greased for their expulsion --excuse me, repatriation-- back to the sands of the Middle East.
Scalia and his supporters are wrong. Dangerously wrong.
9
And just why does Justice Scalia choose to remain a member of such an odious ennead? Lifetime tenure? Great pension? The ability to warp the minds of eager law students to his malignant interpretative will?
6
The elephant in the room, of course, is that Scalia does not appear to be sane. This we cannot discuss, although his actions damage the lives of millions.
7
D.Kahn comments in reference to Justices Scalia and Thomas, "These men are dinosaurs."
The commenter has absolutely no cause to insult dinosaurs by such comparison.
I look for an apology forthwith.
The commenter has absolutely no cause to insult dinosaurs by such comparison.
I look for an apology forthwith.
4
D.Kahn comments in reference to Justices Scalia and Thomas, "These men are dinosaurs."
The commenter has absolutely no cause to insult dinosaurs by such comparison.
I look for an apology forthwith.
The commenter has absolutely no cause to insult dinosaurs by such comparison.
I look for an apology forthwith.
7
Perhaps it is time for Justice Scalia to come out of the homosexual closet. What offends us most in the behavior of others is often a reflection of what we dislike within ourselves.
7
J Gerontol B Psychol Sci Soc Sci. 2008 Jul;63(4):P219-P226.
Growing less empathic with age: disinhibition of the self-perspective.
Bailey PE1, Henry JD.
Author information
Abstract
Older adults have a reduced capacity to take the perspective of another, and it has been suggested that disinhibition may be one mechanism contributing to this difficulty. To test this possibility, we had behavioral measures that were sensitive to inhibitory failure and to theory of mind (ToM) administered to younger and older adults. One of the measures of ToM directly manipulated inhibitory demands, involving either high or low levels of self-perspective inhibition. The results indicated that older adults were selectively impaired on the high-inhibition condition. Further, of the various aspects of cognitive functioning that we assessed, including memory, mental flexibility, and cognitive speed, only cognitive disinhibition mediated age-related differences in ToM. These results suggest that inhibitory control is an important mediator of ToM in late adulthood.
Growing less empathic with age: disinhibition of the self-perspective.
Bailey PE1, Henry JD.
Author information
Abstract
Older adults have a reduced capacity to take the perspective of another, and it has been suggested that disinhibition may be one mechanism contributing to this difficulty. To test this possibility, we had behavioral measures that were sensitive to inhibitory failure and to theory of mind (ToM) administered to younger and older adults. One of the measures of ToM directly manipulated inhibitory demands, involving either high or low levels of self-perspective inhibition. The results indicated that older adults were selectively impaired on the high-inhibition condition. Further, of the various aspects of cognitive functioning that we assessed, including memory, mental flexibility, and cognitive speed, only cognitive disinhibition mediated age-related differences in ToM. These results suggest that inhibitory control is an important mediator of ToM in late adulthood.
2
The people who installed this stooge onto the Supreme Court cast the die for either theocracy or reversal of the Marbury v. Madison ruling by which the Court assumed the role of arbitrating disputes over the meaning of Constitutional language.
5
Oh, how I wish he would go silently into the night. He hath waged his war and placed a stamp of approval on some absolutely dreadful decisions. It is past time, mister.
5
I'm not always sympathetic to Scalia's jurisprudence, and the increasingly hysterical tone of his writing (dissents especially) often seems counterproductive. But this article mischaracterizes his objections to Obergefell and oversimplifies his views. I count myself among the many supporters of gay marriage who think Obergefell was a slapshod, poorly reasoned opinion that was more a vanity project than the sort of precedent SCOTUS should be establishing. Read what Scalia actually writes, not just the sound bytes here. I don't think it's secularism that enrages him -- he loses his cool just as dramatically whenever the court oversteps his view of its limited role (relative to the elected legislature and executive branches) in tons of non-social justice contexts, from presidential recess appointments to detainee rights.
The authors understand this very well, but have chosen to bait him publicly. Frankly, the spectacle of a sitting Appeals Court judge like Posner singling out a Supreme Court justice for personal ridicule is unbecoming. Posner: leave the bench and become a full time law professor, columnist, pundit, author, whatever. But members of the federal judiciary should be above airing the dirty laundry of a longstanding personal feud (this one is a running joke in the legal world) in the Op-Ed pages of the Times.
The authors understand this very well, but have chosen to bait him publicly. Frankly, the spectacle of a sitting Appeals Court judge like Posner singling out a Supreme Court justice for personal ridicule is unbecoming. Posner: leave the bench and become a full time law professor, columnist, pundit, author, whatever. But members of the federal judiciary should be above airing the dirty laundry of a longstanding personal feud (this one is a running joke in the legal world) in the Op-Ed pages of the Times.
3
Bellicosity and belligerence brandished by this brainy but thoroughly self-righteous extremist does not make his opinions meaningful, much less representative of anything but far fringe elements. Sad, very sad, but he can still do tremendous damage to our country.
6
Scalia is exactly the type of judge who has no business on the Supreme Court. He is a nasty despicable human being who uses the court to further his own fundamentalist agenda. An activist judge of the worst kind because he does not have the best interests of the country as a goal.
7
Justice Scalia is a homophobe - to his shame. There is no good reason to try to parse legal fine points. If he wants to become less of a bigot, he needs to see a therapist. This is a psychological problem of his - not a legal issue.
8
One of the 10s commandments is "You shall not kill." Are we also a "theocracy" for enforcing the law against killers? I bet 99% of the commentators in this section are gay, so of course they dislike any reminder of moral opprobrium.
1
We tried a theocracy in our colonial period. It was a failure that persecuted other religions most strenuously. Perhaps Scalia would do well to read some history along with law.
8
Please focus your next article on Justice Alito. I had the honor of being at the Supreme Court when decisions were being read, and the behavior of these two men brought dishonor on the Court. They are destroying it from within.
10
Never ceases to amaze me the hate and vitriol heaped upon this brilliant mind. The Progressive left has convulsions at the truth this man conveys. Plus, it's amazing when a Supreme Court Case supports a Liberal Cause it's gets exalted, a Conservative Cause it's chastised. I think they wish to clone Ruth Bader Ginsberg and have her occupy every seat. His dissenting opinions are extremely cerebral yet approachable. His facts rule over emotion, ad hominem attacks and fallacies. I've never seen anyone truly debate the man, his opinions and break his arguments, Just a lot of whining.
This is the same Scalia that gave a speech about Satan being alive and real and a clear and present danger to society sometime in the last year or so.
Back in the 70s, Nixon nominated a right wing hack to the Supreme Court and he was voted down as unqualified by the Senate. At the time, Roman Hruska the Republican Senator handling the nomination said something like 'They can't all be Brandeis's and Frankfurters. The Average American needs to be represented there too.'
Ronald Reagan took care of that and gave us Scalia, your typical off the street schmo with a right wing religious education. Never was there a more smug, bombastic, 'god is on the side of every bigotry they taught me' ideologue that wore the the robes.
Unfortunately they tend to live forever.
The best and perhaps only reason to hold your nose, bear the stench, and vote for Wall Street Hillary when the time comes.
And ain't that 'democracy' for ya! A choice between a corrupt corporate democrat on the one hand, and the American Taliban on the other.
Then the opinion elite will cluck their tongues and wonder why we have the lowest voter turnout in the 'advanced' world.
Back in the 70s, Nixon nominated a right wing hack to the Supreme Court and he was voted down as unqualified by the Senate. At the time, Roman Hruska the Republican Senator handling the nomination said something like 'They can't all be Brandeis's and Frankfurters. The Average American needs to be represented there too.'
Ronald Reagan took care of that and gave us Scalia, your typical off the street schmo with a right wing religious education. Never was there a more smug, bombastic, 'god is on the side of every bigotry they taught me' ideologue that wore the the robes.
Unfortunately they tend to live forever.
The best and perhaps only reason to hold your nose, bear the stench, and vote for Wall Street Hillary when the time comes.
And ain't that 'democracy' for ya! A choice between a corrupt corporate democrat on the one hand, and the American Taliban on the other.
Then the opinion elite will cluck their tongues and wonder why we have the lowest voter turnout in the 'advanced' world.
4
So Scalia "declared that Obergefell marks the end of democracy". Perhaps, good sir, you should look more toward your vote on 2010 Citizens United decision. That has done more to broadly undermine the democratic process than he cares to recognize.
6
One of the reasons that I support Hillary Clinton for President is in the hope that if she is elected and then re-elected in 2020 that sometime in that timeframe Scalia will be forced to retire and Clinton can replace him with a rational jurist that correct interprets and follows the Constitution which Scalia certainly does not.
I view him a little more than a crackpot whose positions on the cases that come before the SCOTUS more often than not have no grounding in constitutional law. He is therefore unfit to serve on the SCOTUS and if he had any shread of decency, which he so obviously doesn't, he would resign from the bench.
I view him a little more than a crackpot whose positions on the cases that come before the SCOTUS more often than not have no grounding in constitutional law. He is therefore unfit to serve on the SCOTUS and if he had any shread of decency, which he so obviously doesn't, he would resign from the bench.
3
Maybe Scalia should just realized the society has passed him by along with his "Prejudices". A person born in the 30s may have outlived his usefulness concerning interpretation of the Constitution..
3
"They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive"
Scalia seems to have forgotten that slavery was once considered as being allowed by the Bible and that it took a civil war to overturn slavery with the South claiming to be the true upholders of Christian doctrine. He must be aware that even after slavery was banned racial discrimination was enshrined in law - based on the then unexceptional 'Biblical' principle that as descendants of Ham the black races were inferior since Noah had cursed him saying that is children would be servants forever. He must know that this doctrine also underpinned the ban on inter-racial marriage and when they the ban was overturned conservatives like him ranted about how judges were making law and how they were 'disgusted at the thought' of such marriages.
Scalia seems to have forgotten that slavery was once considered as being allowed by the Bible and that it took a civil war to overturn slavery with the South claiming to be the true upholders of Christian doctrine. He must be aware that even after slavery was banned racial discrimination was enshrined in law - based on the then unexceptional 'Biblical' principle that as descendants of Ham the black races were inferior since Noah had cursed him saying that is children would be servants forever. He must know that this doctrine also underpinned the ban on inter-racial marriage and when they the ban was overturned conservatives like him ranted about how judges were making law and how they were 'disgusted at the thought' of such marriages.
4
So much for Roman Catholics on the Supreme Court.
I hope the latest mass killing in San Bernardino, California, is the beginning
of the end for the Republican Party, which Party has been thwarting
reasonable gun control legislation in the U.S. since the 1960's.
I hope the latest mass killing in San Bernardino, California, is the beginning
of the end for the Republican Party, which Party has been thwarting
reasonable gun control legislation in the U.S. since the 1960's.
4
When it comes to Scalia, all my thoughts about his awful decisions and ossified thought process boil down to one thing. I think he has too much ego to step down willingly from the position of power he was tragically given. So he can't live forever, and I honestly hope he doesn't live much longer. The only cure for tyrants is death, and it will come for him too, he doesn't look too healthy so there's hope.
3
Scalia's logical inconsistencies over time about guns and religion is living proof how easily emotions can easily co-opt reason.
5
His views reveal the intellectual bankruptcy of so called constitutional originalism The incoherent idea that we can somehow get to the original intention of the framers of the constitution, and can only work from there, as if the world has little changed since the dawn of the 19th century. Perhaps it hasn't for Scalia.
3
Scalia is right about one thing. The Supreme Court is not representative of our society. It is dominated by five conservative Roman Catholic men. Patriarchal is a better description than patrician, however.
8
The purpose of the Supreme Court is to impartially rule on the constitutionality of the laws of the land. It should do so without activism or the appearance of partiality. Justice Scalia represents neither. If there is ever a case for impeaching a Supreme Court justice, it is presented by Scalia.
5
The irony is that if Scalia's way of looking at religious rights and the rule of the majority had been the founders' view, neither he nor some of the other justices would have ever sat on the Supreme Court: Catholics were once one of those minorities that the majority would have been happy to strip of rights.
9
"enforcing the Constitution"! The Supreme Court gave up doing that 60 years ago when 5 unelected guys adopted William Douglas's fantasy that the document had a bunch of there-to-for unseen rights eminating out of it that covered anything the 5 unelected guys said it covered. New rights were supposed to be added by amending the Constitution, which had been done more than 20 times. Now the judges just make it up as they go along.
As a gay American involved in a long-term loving relationship with another gay man, what I have to say about Pope Scalia would not make it past the censors of this comments section.
5
“furthest imaginable extension of the Supreme Court doing whatever it wants,”
That's really a hoot. Scalia has been pretty much doing what he wanted for a lot of years. Even contradicting his own opinions from past cases.
It's disturbing, the leading GOP candidate simply lies continuously because he is sure he can get away with it, and his followers are all the more supportive. The longest serving conservative justice makes decisions the way he's sure things should be, and obviously he can get away with anything. The most closely guarded secret in Washington must be what his fellow justices think about his fitness to be there.
I can't think of a more compelling reason to vote for Hillary Clinton. The Republican mantra of "more justices like Scalia and Thomas," is too scary.
That's really a hoot. Scalia has been pretty much doing what he wanted for a lot of years. Even contradicting his own opinions from past cases.
It's disturbing, the leading GOP candidate simply lies continuously because he is sure he can get away with it, and his followers are all the more supportive. The longest serving conservative justice makes decisions the way he's sure things should be, and obviously he can get away with anything. The most closely guarded secret in Washington must be what his fellow justices think about his fitness to be there.
I can't think of a more compelling reason to vote for Hillary Clinton. The Republican mantra of "more justices like Scalia and Thomas," is too scary.
6
On the gun and second amendment front, my right to be alive as an American trumps any ones belief that that have a right to a gun and can shot me because the fear for there life when I have done nothing but be myself and wear a hoodie or not conform to their idea of what an American is. The second amendment is a slavery compromise and we still live with the consequences!!
3
Scalia is a spoiled, petulant infant in judicial robes. His narcissistic arrogance undermines democracy.
When he is in the majority, he will fashion his own ad hoc constitutional doctrines and ignore established precedents in order to achieve his desired political ends.
When he is in the minority, he will rail against the injustice of the constitutional system he swore to uphold.
Scalia is the old school-yard bully we all knew growing up. On losing, he picks up his marbles and goes home.
When he is in the majority, he will fashion his own ad hoc constitutional doctrines and ignore established precedents in order to achieve his desired political ends.
When he is in the minority, he will rail against the injustice of the constitutional system he swore to uphold.
Scalia is the old school-yard bully we all knew growing up. On losing, he picks up his marbles and goes home.
6
As a fellow Italian-American I am ashamed of the closed minded views of Scalia. Italians have always been a philosophical people with a "carpe diem" mentality and progressive views on societal matters. Scalia views are another example, it seems, of religious views conflicting with the need to be a progressive thinker in a secular society. The congress should be more interested in vetting a nominee's societal views rather than playing partisan politics.
4
Whatever one thinks of his jurisprudence - as many here point out it's riddled with hypocrisy - what really appalls me is what a nasty piece of work he is. Sarcastic, abrasive, and 'supremely' condescending when he isn't simply contemptuous, Justice Scalia makes Dick Cheney look like Mr Roberts. Decades of living have taught him nothing about how to tolerate difference and embrace our common humanity despite those differences. He is a man who claims to be a devout Catholic and who ignores everything Jesus stood for: compassion, mercy, and love. His has been a poisoned and venomous life and when he finally dies, he will leave behind the worst form of legacy: very few will be sorry he is gone.
6
Besides being a droning dog-hearted barnacle, who will say anything to get a reaction (see Trump?) Justice Scalia is a pretty lousy automobile driver too. Let's just see how long it takes for him to steer himself into another ditch with opinions that denigrate a court that has given liberty to those seeking equality.
3
It really is no news that Scalia has an intention to create some kind of theocratic rule, religious dominate over secular. All the good judgement of an angry old man with a urinary infection and a calcified intellect.
5
“a system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
What is Scalia talking about? When it comes to same-sex marriage, Scalia is not speaking for the American People. It is his bigoted, homophobic views that are out of step with the majority of "People" in this country. According to both Pew Research and Gallup, from 55-60% of Americans support same-sex marriage in 2015, while only 33-39% oppose it.
Anyway, you know what they say about people who loudly proclaim their hatred for gays. It's a defense mechanism called reaction formation--defined as "a repressed impulse is expressed in an opposite or contrasting behavior." Methinks Scalia doth obsess and protest much too much about homosexuals, gays, and same-sex marriage. Why?
Historians will not look kindly on Scalia's abuse of power during his long Supreme Court judgeship, but meanwhile we are forced to deal with his ego, misinformation, distortions, and disinformation as he strives to impose his will, despite reality.
What is Scalia talking about? When it comes to same-sex marriage, Scalia is not speaking for the American People. It is his bigoted, homophobic views that are out of step with the majority of "People" in this country. According to both Pew Research and Gallup, from 55-60% of Americans support same-sex marriage in 2015, while only 33-39% oppose it.
Anyway, you know what they say about people who loudly proclaim their hatred for gays. It's a defense mechanism called reaction formation--defined as "a repressed impulse is expressed in an opposite or contrasting behavior." Methinks Scalia doth obsess and protest much too much about homosexuals, gays, and same-sex marriage. Why?
Historians will not look kindly on Scalia's abuse of power during his long Supreme Court judgeship, but meanwhile we are forced to deal with his ego, misinformation, distortions, and disinformation as he strives to impose his will, despite reality.
4
Didn't Scalia (in Employment Division vs Smith) argue against the idea of religious principle overriding the law of the land by noting that "To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself"?
I am missing something or is he now arguing against himself?
I am missing something or is he now arguing against himself?
4
So in other words Judge Scalia believes in judicial activism when it suits his purposes, but opposes it when it does not. He seems to be hiding his actual judicial activism in a pose of protecting the constitution. Does he see this? Probably not for the talent of obfuscating and hypocrisy when practiced long enough can actually blind that person to the truth of what they are doing.
7
Why would anyone be surprised to see an aging religious extremist lose his rationality and become a public embarrassment to his position as he watches his homophobic worldview disintegrate around him.
We have learned in the past that conservative ideologues like Scalia and Ted Cruz, who are so obsessed with disparaging gays, somehow wind up being exposed as closet homosexuals.
We have learned in the past that conservative ideologues like Scalia and Ted Cruz, who are so obsessed with disparaging gays, somehow wind up being exposed as closet homosexuals.
7
The authors don't quite make it to Scalia's even more troubling position that government derives its moral authority from God. As he wrote in a 2002 article, God's Justice and Ours (First Things), "government—however you want to limit that concept—derives its moral authority from God." According to the Scalia, "The reaction of people of faith to [the] tendency of democracy to obscure the divine authority behind government should not be resignation to it, but the resolution to combat it as effectively as possible."
These troubling comments and beliefs explain much about Justice Scalia's views on homosexuality, abortion on demand, gay marriage and other social issues. We should be appalled by the willingness of a Supreme Court justice to appeal to scripture (as he does in the First Things article) in supporting his views about the role of government and the courts.
These troubling comments and beliefs explain much about Justice Scalia's views on homosexuality, abortion on demand, gay marriage and other social issues. We should be appalled by the willingness of a Supreme Court justice to appeal to scripture (as he does in the First Things article) in supporting his views about the role of government and the courts.
5
Usually men who are this obsessed with taking rights away from homosexuals are struggling with their own sexuality in some way. This kind of thing is often the source of most bigotry.
And if Scalia is such a brilliant legal mind, would he have written that dissent (in the Windsor case, I believe) that had been used by state after state to legalize same-sex marriage? Perhaps he's bitter that he made a dumb tactical error in his war on progress.
And if Scalia is such a brilliant legal mind, would he have written that dissent (in the Windsor case, I believe) that had been used by state after state to legalize same-sex marriage? Perhaps he's bitter that he made a dumb tactical error in his war on progress.
3
What Scalia really wants is a theocracy. What we in America have is a constitutional democracy, wherein majority gets to rule so long as it does not violate rights guaranteed by the constitution. He should retire to Italy or preferably to the Vatican.
5
Does Justice Scalia really believe "that there is no principled basis for distinguishing child molesters from homosexuals"? The first is a crime that involves unwilling victims, whereas the latter is an act committed between consenting adults. Scalia is either engaging in sophistry at the highest level or has gone soft in the head.
7
This is the reason the 2016 election is so important. Republicans will continue to nominate ideologues who profess to abide by precedent, but really only have a political agenda.
3
It seems that Judge Scalia believes that the Supreme Court should act as a committee of religious elders who decide on interpretations of religious-based government. By extension of his logic it seems that his philosophy of governance is very similar to what is present in Iran.
4
Every time I read of Scalia's extremism, I think of of Bush v. Gore, where he had the gall to appoint Bush president against the will of the electorate. So much for electoral democracy! And making it a ruling that created no precedent, trying to ensure that a judge of a different party might appoint someone he didn't like. Hypocrite!
5
The founders of our country recognized the legitimate need to establish a distinct separation between church and state and wrote our constitution accordingly. Scalia has never been able to recognize that distinction and is unable to separate his catholic faith from his official responsibilities.
3
Someone who cannot tell the difference between relations between consenting adults and child rape doesn't belong on any court - not traffic court - much less the Supreme Court.
It is clear that Scalia has a minority opinion within his own faith (polls have shown American Catholics are more liberal in their attitudes regarding homosexuality). He consistently appears to be quite literally hateful of anyone who doesn't share his beliefs. Another disqualifier for S.C.
It is clear that Scalia has a minority opinion within his own faith (polls have shown American Catholics are more liberal in their attitudes regarding homosexuality). He consistently appears to be quite literally hateful of anyone who doesn't share his beliefs. Another disqualifier for S.C.
1
Scalia has never been consistent or adhered to any concept of a universal morality, except the highly inconsistent ones he selects from the Old Testament. From his pivotal role in the Bush presidency ("Get over it...") to his increasingly irrational, bile-filled attempts at "sarcasm," he is one of the most malign figures in American public life since J. Edgar Hoover, whom he somehow resembles.
1
There are about 40 Tea Party House members out of 435.
Justice Scalia is one out of nine.
About the same odds.
Probably about the same across the country.
They do seem to be losing their grip on reality a little (or maybe even a lot).
Unfortunately, we spend a lot of time arguing these distractions that should be spent fixing real problems.
Justice Scalia is one out of nine.
About the same odds.
Probably about the same across the country.
They do seem to be losing their grip on reality a little (or maybe even a lot).
Unfortunately, we spend a lot of time arguing these distractions that should be spent fixing real problems.
2
Alas, we do not need a troglodyte like Justice Antonin Scalia on the Supreme Court. The Justice (odd name for an unjust man) is still waxing wroth over Roe v. Wade (a decision of 42 years ago) and the Obergefell vs. Hodges decision about gay rights, same-sex marriage and the 14th Amendment. Bigotry and racism and rabid religiosity (moral opprobrium) have no place on the Supreme Court, though Scalia is an exemplar of those social beliefs. As Bugs Bunny used to say - "what a maroon!" - Antonin Scalia, what a
clod, what a maroon!
clod, what a maroon!
1
State and Local Governments should pick up on his view that Supreme Court decisions are only formally binding on the Parties to the case and launch a wave of challenges to Citizens United. I would be interested to see if Justice Kennedy would continue to support the precedent or look to over turn it.
1
Scalia's overt demonstration of his biases, while still an acting Justice, confirms my belief that Google should come up with a computer database that will decide all court cases, down to small claims, based on algorithms. Remove humans from the equation, completely. I defy anyone to say that justice would be worst-served than it is now.
3
I picture Judge Scalia as the Grand Inquisitor presiding over the trial of Galileo and espousing an elaborate, sophisticated defense of the Ptolemaic concept of the universe with all in awe as to his "brilliance" and "knowledge". But many realize that his motivation for what he is saying is grounded in comforting supernatural folklore written by people long ago who, in the absence of all knowledge, needed myths to comfort them, provide some semblance of order in reality, & some feeling of moral superiority.
Galileo is "out-smarted".
Galileo is "out-smarted".
2
Where was Scalia's principled reverence for the democratic process when he and his fellow arsonists in the Shelby County v. Holder majority casually tossed aside Congress' nearly unanimous decision to reauthorize the Voting Rights Act and its pre-clearance requirement? Oh, right, that was different. He didn't like what they decided.
1
Justice Scalia's argument that child molesters are a minority just like homosexuals is poppycock. Children are legally unable to provide informed consent. The parallel he draws is therefore absurd in its conclusions. He just wants to vent his spleen. He should be more careful in his argument if he wants to be considered thoughtful.
1
While I frequently see left-of-center justices described as "Legislating from the bench" and engaging in "judicial activism" I've seen very few cases of it and far more cases by the right-of-center justices. Scalia and the late Rehnquist do amazing judicial gymnastics to try to tell us the Constitution doesn't say what it clearly says. The fact that Scalia equates consenting adults agreeing to have a sexual relationship with pedophilia, where a child is deliberately victimized by an adult clearly indicates that HIS religious antipathy for homosexuality overrides the crystal-clear "Equal Protection" clause of the Constitution.
Further, the idea that Congress's laws are not subject to judicial review for adherence to the Constitution, turns that treasured document into nothing more than a scrap of paper to be ignored. It HAS been ignored in the past but eventually, those violations are corrected.
HOWEVER, when there's legislation that Justice Scalia doesn't like, like the hypocrite that he is, he then uses the Constitution to overturn it. Think about the Voting Rights Act of 1965 which he helped gut.
Incidentally, Rehnquist detested Scalia. Rehnquist was known for his love and adherence to punctuality. Scalia deliberately continually would be late just to annoy the CJ. And, weirdly, Scalia and Ginsberg are dear, close friends, which I don't get, though they served together on a lower court.
Further, the idea that Congress's laws are not subject to judicial review for adherence to the Constitution, turns that treasured document into nothing more than a scrap of paper to be ignored. It HAS been ignored in the past but eventually, those violations are corrected.
HOWEVER, when there's legislation that Justice Scalia doesn't like, like the hypocrite that he is, he then uses the Constitution to overturn it. Think about the Voting Rights Act of 1965 which he helped gut.
Incidentally, Rehnquist detested Scalia. Rehnquist was known for his love and adherence to punctuality. Scalia deliberately continually would be late just to annoy the CJ. And, weirdly, Scalia and Ginsberg are dear, close friends, which I don't get, though they served together on a lower court.
1
Scalia forgets so much. The Founders were aghast at states that fought wars over religion, specifically Christian sects. Many were secularists, Deiosts, and atheists. Dred Scott was called "property", something Scalia might be bothered by if he were darkish. The Constitution never mentions marriage as a sacrament. Marbury v. Madison suggested SCOTUS had some things to do other than protect state legislation and that he swore and promised Congress he'd defend that document as it had evolved by the time he came to the Court.
Thus Scalia is clearly dumb, demented, delinquent, or miseducated. No matter which it is, he is unfit to serve. Foget who the Founders were? What the Court has believed it s job was? Neglect human suffering? Maybe is not demented but nasty. No room for him or his clone Thomas on any court in the land. They are 2 prime reasons we need a Democrat in the White House. Alito is a third. Roberts is only slightly more hIt may take us decades to refurbish the now-sullied Court, but let's get started.
Thus Scalia is clearly dumb, demented, delinquent, or miseducated. No matter which it is, he is unfit to serve. Foget who the Founders were? What the Court has believed it s job was? Neglect human suffering? Maybe is not demented but nasty. No room for him or his clone Thomas on any court in the land. They are 2 prime reasons we need a Democrat in the White House. Alito is a third. Roberts is only slightly more hIt may take us decades to refurbish the now-sullied Court, but let's get started.
4
When I hear Scalia go on about gays I hear a very conservative Catholic priest whispering in the background. I hear conservative Catholic converts like Ross
Douthat. I don't hear Francis. It is such a shame that Scalia forces all Americans to listen to and act on Catholic moral theology. As an old Catholic I'm tired of hearing him--I've heard his theology all of my life.
Douthat. I don't hear Francis. It is such a shame that Scalia forces all Americans to listen to and act on Catholic moral theology. As an old Catholic I'm tired of hearing him--I've heard his theology all of my life.
4
Back in the 19th Century, there was great concern about the mostly Roman Catholic immigrants being an invading army controlled from the Vatican, whose purpose was to take over our country and make it a theocracy. Well, it didn't happen then, but now, with a majority of Catholics on the Supreme Court, it seem to be happening.
4
Scalia can't distinguish between protecting the rights of two consenting adults of the same sex and someone who molests children?
No wonder he writes such drivel in his opinions; he had no analytical ability other than applying his own prejudices and political agenda to every legal problem that rolls his way.
No wonder he writes such drivel in his opinions; he had no analytical ability other than applying his own prejudices and political agenda to every legal problem that rolls his way.
3
Just to note here that one of the authors of this piece, Richard Posner, is (or was) among the most conservative members of the federal judiciary. If I recall correctly, GW Bush (or his father) considered but rejected the idea of nominating him for a Supreme Court seat for fears that he would be not be confirmed because he was so conservative. To be fair, though, he's more of a libertarian than a strict conservative.
Just sayin'.
Just sayin'.
It is apparently clear what Scalia's agenda has become - he wants to completely dismantle the judicial branch of our government in the same manner that radical Republicans in the Senate and House wish to dismantle the legislative branch. These people are serious, determined, and have the support of some of the richest and most powerful people in America. When vitriolic and disingenuous bozos like Trump and Carson are the leading candidates for what is ostensibly a national party, we should realize how much trouble we are in.
3
Scalia's typical jurisprudence is the equivalent of having the desired result--one that reflects his arch conservative ideology--predetermined and then trolling around for justifications whose doubtfulness he seeks to mask with the vitriol of his rhetoric. He--along with Silent Clarence--are the most flagrantly "activist" judges on the Supreme Court. His self-assigned label as a Constitutional originalist is Orwellian.
1
While Richard Posner is entitled to a personal opinion, including an opinion of another judge or justice, it is improper at best to attack a sitting justice on the Supreme Court in a public document given his requirement under the principles of stare decisis and the nation's court system as it has been designed and implemented by Congress and the President.
Posner's remarks give the impression that he is NOT a fair and measured jurist and that one having a case in front of Posner and his colleages is not a justice embodied in the statue of a blindfolded woman with a sabre and scales.
His role as an Appeals Court Justice gives him ample platform and ample say in the definition of specific elements of statutes under the Rule of Law.
His penning of this screed against Justice Scalia is as unseemly as it is unprofessional and petty.
Posner's remarks give the impression that he is NOT a fair and measured jurist and that one having a case in front of Posner and his colleages is not a justice embodied in the statue of a blindfolded woman with a sabre and scales.
His role as an Appeals Court Justice gives him ample platform and ample say in the definition of specific elements of statutes under the Rule of Law.
His penning of this screed against Justice Scalia is as unseemly as it is unprofessional and petty.
Antonin Scalia is one of the most unprincipled people ever to serve on the Supreme Court. He opposes "judicial activism," except when it serves his political ends. He embraces "originalism," except when it leads to a result inconsistent with his own prejudices. He believes courts should defer to legislatures, except when he disagrees with the legislature. His famous arrogance and malice toward his fellow justices make him unfit to serve on any court.
It is an unfortunate reality that most members of the Supreme Court, both conservative and liberal, are guided far too much by their political views and far too little by legal principles; but no one (other than Clarence Thomas) is as shameless as Scalia. That his political views are those of a vile, hateful bigot makes it that much worse.
It is an unfortunate reality that most members of the Supreme Court, both conservative and liberal, are guided far too much by their political views and far too little by legal principles; but no one (other than Clarence Thomas) is as shameless as Scalia. That his political views are those of a vile, hateful bigot makes it that much worse.
3
Well, gosh. Scalia accurately observes that the Supreme Court (and, by extension, the law of the land) is aimed at "eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” Yes. Exactly. "Moral opprobrium" is not a sufficient legal argument. So long as the standards of behavior permitted and tolerated by straight couples is also applied to gay couples (at home, at school, at work, at play, in public and in private), then what's the problem? There are plenty of laws to prevent harmful and disruptive behavior. The individuals' sexuality is obviously irrelevant. This guy is supposed to possess a legal mind???
4
Any dissent is more fun to read than a majority opinion, simply because the dissenter is relieved of real responsibility. A dissenter gets to imagine and speculate. He feels free to point out the opening floodgates and the slippery slopes and the awakening Frankenstein creatures that never appear in a majority opinion. Scalia appears to have a good deal of fun doing this, and I wish his endeavors a long and healthy future.
More than any justice on the present court than perhaps Roberts, Scalia frames his opinions on whatever paradigm of constitutional interpretation enables him to arrive at an opinion that is in line with his subjective, personal beliefs and mores.
Claiming to be a "literalist," so to speak, he renders the Second Amendment almost unintelligible in an opinion that ignores the meaning of the word "militia." At the same time, he becomes a "literalist" when it suits his need.
He is not better than a backwoods preacher who proof-texts his sermons; i.e., he makes up his mind and then finds a paradigm/text to support it. Worse, he either feels entitled to so interpret the Constitution or lacks the self-awareness to understand what he is actually doing.
Lacking self-awareness, he presents himself as a member of the intelligentsia who cannot be bothered with the exigencies that accompany the expansion of freedom(s). Unfortunately for him, that's how history will judge him.
Claiming to be a "literalist," so to speak, he renders the Second Amendment almost unintelligible in an opinion that ignores the meaning of the word "militia." At the same time, he becomes a "literalist" when it suits his need.
He is not better than a backwoods preacher who proof-texts his sermons; i.e., he makes up his mind and then finds a paradigm/text to support it. Worse, he either feels entitled to so interpret the Constitution or lacks the self-awareness to understand what he is actually doing.
Lacking self-awareness, he presents himself as a member of the intelligentsia who cannot be bothered with the exigencies that accompany the expansion of freedom(s). Unfortunately for him, that's how history will judge him.
6
I am a great admirer of Judge Posner. I have utter contempt for "Justice Scalia", whose plainly political doctrine of "original intent", thought up as a great ruse by an even greater villian than him, if that is possible, the rejected nominee Robert Bork. Bork's writing after his rejection became increasingly theocratic and extreme until his death.
Scalia has a fixation and hatred on gays that border on mania. In the late 80s, i had a friend, who was a manager for a major airline. He ended up sitting next to scalia. Unaware that my friend was one of the homosexuals scalia despises, with a long term partner, he politely brought up the subject of gay rights. He told me you just couldnt reason with scalia on the subject.
I opposed Scalia's nomination in 1981, because i saw his proclivity for subversion, politicising the bench and his extremism. I hope to outlive the now senile and dementia suffering justice. When he dies, i want to be the one to slam shut his coffin.
A truly evil man who has brought disgrace and approbrium to the federal judiciary.
Scalia has a fixation and hatred on gays that border on mania. In the late 80s, i had a friend, who was a manager for a major airline. He ended up sitting next to scalia. Unaware that my friend was one of the homosexuals scalia despises, with a long term partner, he politely brought up the subject of gay rights. He told me you just couldnt reason with scalia on the subject.
I opposed Scalia's nomination in 1981, because i saw his proclivity for subversion, politicising the bench and his extremism. I hope to outlive the now senile and dementia suffering justice. When he dies, i want to be the one to slam shut his coffin.
A truly evil man who has brought disgrace and approbrium to the federal judiciary.
5
The recent Linda Greenhouse article on Kennedy's Obergefell decision was a far more accurate reflection of Scalia's views and far more incisive on the problems with them than this piece. To summarize crudely, Kennedy based his decision on the right to dignity of same sex couples. Greenhouse thought that was a justified revolution in 14th amendment jurisprudence. Scalia doesn't see that the 14th amendment guarantees "dignity." So, Scalia's problem is not that he doesn't believe in enforcing the 14th amendment when it applies, but that he doesn't believe it was applicable in Obergefell.
Before Obergefell, 14th amendment analysis considered among other things whether or not a right involved was a fundamental right. By viewing the right involved in Obergefell as the narrow right for same sex marriage rather than the application to same sex couples of the general right to legal recognition of a union, it is plausible to conclude that it is not fundamental and the 14th amendment doesn't apply.
Before Obergefell, 14th amendment analysis considered among other things whether or not a right involved was a fundamental right. By viewing the right involved in Obergefell as the narrow right for same sex marriage rather than the application to same sex couples of the general right to legal recognition of a union, it is plausible to conclude that it is not fundamental and the 14th amendment doesn't apply.
Now, after 30 years sitting on the Supreme Court, he decides to throw it under the bus to advance his own world view, like a typical Xtian the need to force a certain belief on others. That in itself is unconstitutional. I think Scalia is suffering from a sickness of the mind and spirit that has become something of a movement in the USA. Hang up the robes Justice Scalia and move on the pulpit.
3
Scalia's rabid, fevered and irrational opinions have no place on the court. He is compromised at every turn, relying on the constitution when convenient, and discarding it when it conflicts with his strident, ferociously unfair and biased opinions. In the wake of Scalia's attempt to dismantle democracy, Thomas is almost tolerable as a justice. He is merely incompetent. Scalia, the golf buddy of Dick Cheney, has taken aim at the very heart of our dearly held liberties. People came to this country seeking religious and social freedom, Justice Scalia. That freedom enables us to pray, or not. And to love who we choose to love.
5
I presume Justice Scalia would have invoked the beliefs of the then-majority in ruling against the Emancipation Proclamation, refusing to overturn Dred Scott, or - in a case more pertinent to his stand on gay marriage - in refusing to agree that blacks and whites should be allowed to marry?
After all, people holding those beliefs "view this as protecting themselves and their families from a lifestyle they believe to be immoral and destructive."
After all, people holding those beliefs "view this as protecting themselves and their families from a lifestyle they believe to be immoral and destructive."
1
I never had any respect for Scalia's jurisprudence, but now he sounds almost unhinged. If this is the case, it might raise an interesting mental health question: Are there mental health issues like dementia or other illnesses that should be a litmus test for continuation on the bench and how do you make such a determination (it might be relevant for other positions like Congress and President as well)? Removing him because you simply don't agree with him, while tempting, would set a dangerous precedent. It also raises the issue of whether we should have terms on Supreme Court justices - say 18 years with staggered appointments every two years?
Scalia is just a bag man for the Leo Strauss, Irving Kristol 'philosophy' of the Necessary Lie needed, they thought, to galvanize what they considered the weak moral foundations of industrial materialism in what they saw as the existential struggle between liberty and communistic-socialism of the Cold War. These ideas fueled what we today call the Neocon idea of muscular foreign policy and 'American Exceptionalism'. They conveniently encouraged the conservative embrace of religion in politics. However, the end of the Cold War and the collapse of communism did not spell the end of using the Necessary Lie to further American 'values' around the globe, as a number of this group's main proponents (Cheney, Wolfowitz, Perle, Rumsfeld, et al) infiltrated the highest echelons of government and organizations, such as the Federalist Society, and some of the top law schools, to further this exceptionalist ideology.
Without their erstwhile 'enemy' this group has lost its moorings altogether, espousing a kind of American Nationalism infused with Christian theology, of which Scalia has shown himself to be a leading proponent, that now targets liberal/progressivism as its next bete noire to guard against. They are extremists in their own way, and not above twisting language, meaning, and the law itself to serve their purpose. More in this BBC documentary (2004) https://archive.org/details/ThePowerOfNightmares-Episode1BabyItsColdOutside
Without their erstwhile 'enemy' this group has lost its moorings altogether, espousing a kind of American Nationalism infused with Christian theology, of which Scalia has shown himself to be a leading proponent, that now targets liberal/progressivism as its next bete noire to guard against. They are extremists in their own way, and not above twisting language, meaning, and the law itself to serve their purpose. More in this BBC documentary (2004) https://archive.org/details/ThePowerOfNightmares-Episode1BabyItsColdOutside
3
Justice Antonin Scalia is clearly a man who wears robes, but I think he would rather wear red ones. When Sen. John F. Kennedy ran for president, there were unfounded concerns that the Pope would be commanding the president. Founded by anti-papist protestants, such fears were quite palpable for citizens of the USA only three centuries removed from Cromwell. Of course, Justice Scalia would find himself certainly disagreeing with the current pope or perhaps wouldn't mind replacing him to put the Vatican back on its proper course. If he is so unhappy in his job, perhaps he should retire.
1
Interesting that when Congress passes a Voting Rights Act, Justice Scalia and conservatives on the Court don't uphold it, so saying that that they wish to uphold legislation is a fallacy. I worry about the abortion and contraception cases coming before the Court. As Linda Greenhouse pointed out brilliantly in her Nov. 26, 2015, piece in The Times, the Court links these two issues to religion and not, as they should be, to the rights of individuals (mostly women) to have privacy and freedom of choice about their health.
3
Michael's comment: the constitution does not mention sex or homosexuality is no less spurious than the claims he files against Scalia's detractors. The Constitution does not single out each individual 'right', each rule for human behavior. It was not penned by psychologists, sociologists, doctors (and if so hardly by today's licenses.) It took Amendments to deal with omissions and commissions. And sadly the recent past generations have not further amended the document to reflect the state of an entirely new socio-economic order. (There is no mention of preserving the environment, no mention what may be taught in schools, no mention what books are to be banned, no mention of heart transplants, ...etc.)
The UN Charter on human rights gives some insight into what human rights means in contemporary terms. And even that will not be adequate when we live with robots and humanoids.
The various forms of 'bibles' or religious testaments are NOT statements of human rights. Their contents are sectarian statements...large sects, small sects, BUT sects. Scalia introduces religion into the matter. It is a not so clever ruse for a Judge who enjoys acting as a celebrity... and a legal dandy.
There are limits to what qualifies as 'human rights' BUt Scalia has hardly had the intellectual fortitude to present such an insightful brief for public consideration.
The UN Charter on human rights gives some insight into what human rights means in contemporary terms. And even that will not be adequate when we live with robots and humanoids.
The various forms of 'bibles' or religious testaments are NOT statements of human rights. Their contents are sectarian statements...large sects, small sects, BUT sects. Scalia introduces religion into the matter. It is a not so clever ruse for a Judge who enjoys acting as a celebrity... and a legal dandy.
There are limits to what qualifies as 'human rights' BUt Scalia has hardly had the intellectual fortitude to present such an insightful brief for public consideration.
3
"Justice Scalia also said that state and local officials who are not actual parties to Supreme Court cases have no obligation to obey judicial rulings that those officials think lack a warrant in the text or original understanding of the Constitution." So he apparently would have backed Kentucky court clerk Kim Davis's refusal to issue same-sex marriage licenses. Yet in Employment Div. v. Smith, 494 U.S. 872 (1990), he said that Native Americans' ingestion of peyote in religious ceremonies was not entitled to the First Amendment's protection of the free exercise of religion, but must yield to a state criminal law prohibition, because otherwise "each conscience is a law unto itself." https://www.law.cornell.edu/supremecourt/text/494/872
Why should Ms. Davis's conscience take precedence over the law, while Native Americans' consciences cannot? And if religion-neutral laws of general applicability, such as the Oregon peyote ban upheld in Employment Div. v. Smith, take precedence over religious beliefs and practices, why shouldn't Obamacare's coverage of contraception prevail over any religious objections? Let's see how Justice Scalia handles that one.
Why should Ms. Davis's conscience take precedence over the law, while Native Americans' consciences cannot? And if religion-neutral laws of general applicability, such as the Oregon peyote ban upheld in Employment Div. v. Smith, take precedence over religious beliefs and practices, why shouldn't Obamacare's coverage of contraception prevail over any religious objections? Let's see how Justice Scalia handles that one.
5
Well, this article wins the most disjointed reasoning award for the year. An "F" to both authors. A Majoritarian theocracy seems an absurd assertion given the culture that embraces "everything except religion" as cool. The only real, reliable enemy for the media and liberals are devout Christians. So, there is no theocratic majority. And since the Bible is verboten as a legal source or any thing else, what authority would the authors reference? If the Supreme Court can interpret the Constitution as they see fit, what's its value anyway? We really have no authority except ourselves or whatever mob we can organize. The judge certainly is calling it correctly.
Scalia and Thomas should be impeached, the are both unworthy of holding any position of power at any level of government. There are multiple efforts underway to overturn Citizens United, why are there no efforts to press for the impeachment of these two Justices who are doing immeasurable harm to our nation?
1
Scalia's position is based on the mistaken notion that homosexuality is a "life-style" choice (like taking drugs or drinking alcohol) which society should have the right to outlaw or regulate. He rejects the science which has shown quite conclusively that sexuality is not a choice, it is a biological and psychological necessity over which the individual has no control. As for the Christian religion, its prohibition of homosexual activity (Paul's injunction that a man should not sleep with a man) simply reflects the ignorance of the era in which it was written. It is not divine writ and certainly is not binding on the secular, civil authorities. Let's go with Jesus's injunction that we should do unto others as we would have them do unto us. It is really all we need to know about Christianity and forms the basis of any freedom loving society.
1
Scalia is the starkest example of what judges actually do: rationalize their personal beliefs. He used to be better about pretending that he was just following the dictates of his originalist theories. It's pretty clear to me that even when he appeared more principled, he was following principles chosen because they most closely aligned with his personal beliefs. If the founding fathers had been more socially liberal than modern society, do you think Scalia would have adopted an originalist philosophy? I don't.
As often appears to happen to older men, Scalia is becoming more extreme and angry about his views as he ages, so much so that his mask is slipping (even further).
As often appears to happen to older men, Scalia is becoming more extreme and angry about his views as he ages, so much so that his mask is slipping (even further).
1
I cannot understand how Justice Scalia can claim to be an originalist when he either doesn't understand, or willfully ignores, the intent of the Founding Fathers. As another commenter pointed out, most of the FFs were Deists, i.e., they believed in God but not in a particular religion. They wanted many of the opposites of what existed in England, including the absence of a state-sponsored religion.
Time and time again, Scalia has shown he is not an originalist or a textualist by his interpretations of the Constitution. He read out the whole first clause of the Second Amendment is writing that the right to bear arms is an individual rather than a collective right. Why would the FFs have put the militia clause in the Second Amendment (the only amendment of the original Bill or Rights that has a prefatory clause) if they did not want to limit the right to bear arms to citizen militias?
And his faith in legislatures is laughable, especially given his view of the rights of corporations to make political contributions.
Yes, in Scalia's world, corporations are people with First Amendment rights of free speech and religion, but actual humans whose sexual orientation or other characteristics he finds repulsive aren't.
The harm this man has done to this country's jurisprudence and to its electoral process is beyond measure.
Is it wrong to hope that he has a major heart attack or aneurism during one of his all-too-frequent rants?
Time and time again, Scalia has shown he is not an originalist or a textualist by his interpretations of the Constitution. He read out the whole first clause of the Second Amendment is writing that the right to bear arms is an individual rather than a collective right. Why would the FFs have put the militia clause in the Second Amendment (the only amendment of the original Bill or Rights that has a prefatory clause) if they did not want to limit the right to bear arms to citizen militias?
And his faith in legislatures is laughable, especially given his view of the rights of corporations to make political contributions.
Yes, in Scalia's world, corporations are people with First Amendment rights of free speech and religion, but actual humans whose sexual orientation or other characteristics he finds repulsive aren't.
The harm this man has done to this country's jurisprudence and to its electoral process is beyond measure.
Is it wrong to hope that he has a major heart attack or aneurism during one of his all-too-frequent rants?
1
The issue about an opinion of the Supreme Court binding only the parties involved skips over the necessary principle that after the opinion is issued, all of the trial courts must follow the opinion in all future cases involving the same and similar factual controversies. So someone refusing to obey the law as stated in the supreme court opinion is violating the law. Blowing hard that they aren't until they get their day in court is lie. The trial courts are required to apply the supreme court opinion consistently.
1
To compare adults engaging in not only consensual but conduct which for heterosexual couples society deems desirable to child molestation is deplorable and defies reason. I do think it is time to reconsider lifetime appointmenys to the court. Scalia's tenure has surpassed his useful life as a high court Justice, even though I wish him good health as a low-life miscreant.
I find Scalia's ramblings comparing homosexuals to pedophiles or child abusers to be completely incoherent. Any glancing familiarity with constitutional jurisprudence over the last 50 years, at least, makes it patently clear that the Supreme Court would let stand a law that disqualifies a pedophile or child abuser or murderer from entering into marriage on the basis of a predilection for or history of committing crimes, even domestic abuse against prior spouses or sex crimes against minors. The notion that Scalia would allow us to declare open season on the fundamental rights of disfavored minorities based on our own antipathies is frightening.
There is a difference between child molesters and homosexuals. The 14th Amendment's "Equal Protection" clause makes it unconstitutional to discriminate against "similarly situated" groups. Child molesters, in taking advantage of someone deemed unable to make an informed decision by virtue of their young age, are not similarly situated with adult heterosexuals engaging in sex with a consensual and competent counterpart- homosexuals are. Scalia clearly knows this but is engaging in a legal form of "Fox News" by presenting whatever he wishes to be true as if it was constitutional fact.
1
I believe your constitution guarantees freedom of religion,not freedom from religion. As an outsider looking in, I find it sadly ironic that some constitutional decisions made in your recent history have actually resulted in your government defining a new standard of morality that more and more people believe should be imposed on everyone. The government is drifting toward a secular religious statism and many are calling for the government to actively suppress any traditional religion that does not line up with this state based moral system.
I hope before this comes into full fruition people will remember the lessons from the 20th century and resist future efforts for your government to become the final authority in every matter of your nations citizens, for when this happens there will be no room for any opinions save for government sanctioned and government supporting ones.
And the rich and diverse comment section of the New York Times will become another venue for a narrow set of opinions that uphold views that are 'allowed'.
I hope before this comes into full fruition people will remember the lessons from the 20th century and resist future efforts for your government to become the final authority in every matter of your nations citizens, for when this happens there will be no room for any opinions save for government sanctioned and government supporting ones.
And the rich and diverse comment section of the New York Times will become another venue for a narrow set of opinions that uphold views that are 'allowed'.
1
Scalia spouts so much nonsense that it's difficult to understand how he gained a reputation as a judicial intellectual. He seems guided by opinions that have little or nothing to do with the law and everything to do with his own bias. He can't distinguish between the person who molests children -- a crime -- and a law-abiding gay or lesbian citizen seeking loving, permanent union with a consenting adult? Doesn't he realize that American views on race, marriage and sexual orientation have undergone such dramatic shifts that it would be folly for justices to make decisions based on tradition, public opinion and "moral opprobrium"? Venting your spleen is no substitute for upholding the Constitution.
1
Justice Scalia should not have been approved as a nominee to the court and he is not alone. His personal prejudices and beliefs seem to trump what the law says and what it provides, and he seems to want a theocracy- not a secular democracy.
He rants about the SCOTUS doing what it wants, yet he had no problem joining with other Republicans to appoint George W Bush President of the United States. The Supreme Court was the legal point of decision regarding the choice of Florida's electors and the Republicans on the court decided to Bigfoot over a State Supreme Court that if followed would have resulted in Al Gore being elected President- this from a supposed Conservative Federalist.
As to the preference of a majority making something right- not necessarily. There was a time in America when the majority had no problem with Jim Crow, or slavery- or child labor, or operate but equal. That may have been the majority opinion, but it was not moral, right or Constitutional.
He rants about the SCOTUS doing what it wants, yet he had no problem joining with other Republicans to appoint George W Bush President of the United States. The Supreme Court was the legal point of decision regarding the choice of Florida's electors and the Republicans on the court decided to Bigfoot over a State Supreme Court that if followed would have resulted in Al Gore being elected President- this from a supposed Conservative Federalist.
As to the preference of a majority making something right- not necessarily. There was a time in America when the majority had no problem with Jim Crow, or slavery- or child labor, or operate but equal. That may have been the majority opinion, but it was not moral, right or Constitutional.
1
Even if Scalia were right that the religious sensibilities of the majority should prevail, who is to determine what they are? Clearly some religious denominations will never accept marriage equality, but a growing number of "mainstream" Christian churches and Jewish congregations now perform and recognize the marriages of same-sex couples. If the Supreme Court accedes to the beliefs of one group of churches rather than the other isn't it clearly "establishing a religion?"
In my opinion, what is frightening about the present Supreme Court is that such major rulings are made not by a group of 9 un-elected justices, but, given the court's extreme polarization, by one judge, "swing vote" Anthony Kennedy--a judicial loose cannon in the view of many-- who is in essence single-handedly deciding enormous issues, including marriage, Citizens United and Bush v. Gore for the entire country.
In my opinion, what is frightening about the present Supreme Court is that such major rulings are made not by a group of 9 un-elected justices, but, given the court's extreme polarization, by one judge, "swing vote" Anthony Kennedy--a judicial loose cannon in the view of many-- who is in essence single-handedly deciding enormous issues, including marriage, Citizens United and Bush v. Gore for the entire country.
1
It seems that The GOP picks Justices for their devotion to party/money lines and resistance to time and world changes to grow. a truly great hazard of electing another GOP person soon is that we might have 7 or eight Scalia's and Thomas' in the near future. If ever there was a horror to envision, try that on for size. Justice Ginsburg is not a spring chicken though she keeps her vitality very high, a true fitness person to be admired for that by all.
The people that Dems select seem to reflect the good ideals of changing times but they stay in office until a GOP can replace them, hence they become our nightmares. I have nightmares of Justice Ginsburg passing away with a (another nightmare) president Ted Cruz to appoint her successor. Imagine, in your wildest nightmares, what waking up to find 3 Scalia's and 2 Thomas' on a SCOTUS presided over for the next 20 years by CJ (Mandatory Arbitration & Citizens United) Roberts!! Ladies and Gentlemen, now that is a nightmare of world class proportions.
Let us pray that President Hillary Clinton gets the chance to say to the next SCOTUS appointee, "Welcome aboard Justice Elizabeth Warren, now help us get this ship turned around for the good of all the people." Wouldn't that be a nightmare for the Koch Brothers? ha ha I could not resist bring a bit of levity to this very serious subject.
Ending seriously, the potentials of great harm in the next few appointments makes it a "must" that a level headed good person be elected. No Trumps!
The people that Dems select seem to reflect the good ideals of changing times but they stay in office until a GOP can replace them, hence they become our nightmares. I have nightmares of Justice Ginsburg passing away with a (another nightmare) president Ted Cruz to appoint her successor. Imagine, in your wildest nightmares, what waking up to find 3 Scalia's and 2 Thomas' on a SCOTUS presided over for the next 20 years by CJ (Mandatory Arbitration & Citizens United) Roberts!! Ladies and Gentlemen, now that is a nightmare of world class proportions.
Let us pray that President Hillary Clinton gets the chance to say to the next SCOTUS appointee, "Welcome aboard Justice Elizabeth Warren, now help us get this ship turned around for the good of all the people." Wouldn't that be a nightmare for the Koch Brothers? ha ha I could not resist bring a bit of levity to this very serious subject.
Ending seriously, the potentials of great harm in the next few appointments makes it a "must" that a level headed good person be elected. No Trumps!
1
Scalia's dissenting opinions are nothing more than an orgy of intellectual dishonesty. The prime moving force behind his perverse dissents is hidden deep within his troubling subconscious. The other pervert on the court, Clarence Thomas, finds affinity with Scalia's troubling goals and often signs onto Scalia's constitutionally bankrupt dissents. But unlike Scalia, Thomas is merely an intellectual midget. The silver lining: they both focus us on why presidential elections are so important.
3
I find that Scalia has finally said the system we have for over 200 years doesn't work for him anymore ,because he isn't getting his way. My family landed in Massachusetts many ,many years ago, a Catholic family & were driven out by the likes of Scalia. Convert or face persecution. No respect for believing in different things. Pennsylvania was their next destination. Prospered ,grew , flourished. The family headed west for more opportunities. We have had a long line of homosexual family members. No pedophiles,no traitors,no heretics to the faith. There are even testaments to their love still written on tombstones to their love in the churchyard dating to 1860. I will not argue with his beliefs,but I challenge that he has ever had a Christian upbringing. I challenge his twisted interpretation of the Constitution. I suggest he start re-reading the introduction to the Constitution, "..in order create a more perfect union." Scalia has become the elitist he so despises. He is no longer open to other human interpretations of being free and equal. He is Pontius Pilate. His soul will be in my prayers. So sad to see that hate is such an acceptable position to take. Laws are meant to protect, I feel he no longer believes in its universality. He is no longer able to uphold our Constitution.
1
I don't get how Thomas and Scalia can be so openly allied with conservative and Republican organizations yet not recuse themselves on cases pertaining to these organizations and their pet issues. Deciding the Presidential election of 2000 is one of the most nakedly corrupt decisions ever made by the Court. Citizens United runs a close second, with Hobby Lobby close on its heels.
When corporations are people, humans are merely widgets.
When corporations are people, humans are merely widgets.
4
Small point. Dred Scott not only denied the protection of the Constitution to slaves, it also denied it to free men and women of African descent.
Evenwel v Abbott, which the Court will hear next week, would deny constitutional rights to foreigners - both legal and illegal. Ironically, in the petition requesting certiorari, the appellants argued that the court should take the case because Justice Thomas wanted the matter decided. Talk about the Court supplanting democracy.
Power corrupts. Perhaps the Court has enjoyed free rein too long. Perhaps it is time for Congress to exercise the power given them in the Constitution to alter the structure of the Court. A shakeup might do a world of good.
Evenwel v Abbott, which the Court will hear next week, would deny constitutional rights to foreigners - both legal and illegal. Ironically, in the petition requesting certiorari, the appellants argued that the court should take the case because Justice Thomas wanted the matter decided. Talk about the Court supplanting democracy.
Power corrupts. Perhaps the Court has enjoyed free rein too long. Perhaps it is time for Congress to exercise the power given them in the Constitution to alter the structure of the Court. A shakeup might do a world of good.
Justice (or non-Justice) Scalia is a pox on the nation. I wonder whether those who arranged for his appointment quite understood the breadth of consequences of his iconoclastic, pseudo-conservative, truly and deeply radical position on the role of the courts. Imagine a football game where each of the officials not only see things differently (which they often do) but where the consequences of their rulings are in dispute ("holding defense number 55, 5 yard, or 10 yard or 25 yard penalty - oh and - since we're in Green Bay, the packers get the ball for the rest of the half"). Scalia is a dismissive bigoted (gays = child molesters - a favorite trope) fellow visited upon us with terrible conseqences for the nation and it's jurisprudence.
1
It seems that Antonin Scalia rules based on his own emotions, prejudices, and opinions, rather than on a neutral and objective interpretation of the facts and the law. I cannot forget his comment at oral argument in Shelby County v. Holder that a section of the Voting Rights Act, which was passed by overwhelming majority votes in Congress, should be judicially repealed by five unelected judges, because, in his opinion, Congress was merely acting in response to political pressure.
3
I don't buy the argument that accepting that legal discrimination can be applied against gays is a majoritarian viewpoint. I believe it's clear from many polls conducted in the last 10 years that a majority of Americans now disagree with that position. That's not true everywhere, but in general, it is.
Also, confusing the provision of legal rights for gays with the idea of allowing child molesters to legally run rampant is a smoke screen. Law can draw distinctions. Most murderers go to prison. Scalia knows this but likes to rationalize his own philosophy and would prefer to make it the law of the land.
Fortunately he is old. In twenty years there will be far fewer of these dinosaurs left.
Also, confusing the provision of legal rights for gays with the idea of allowing child molesters to legally run rampant is a smoke screen. Law can draw distinctions. Most murderers go to prison. Scalia knows this but likes to rationalize his own philosophy and would prefer to make it the law of the land.
Fortunately he is old. In twenty years there will be far fewer of these dinosaurs left.
A learned grotesque. If we allow theocratic beliefs to shape our laws, we become no more than a Christian caliphate - a notion that should be abhorrent to anyone desiring a free society. There is simply no excuse for Mr. Scalia's attitude and it should be called as it is - bigotry. Whether a marriage is between people of the same or opposite gender should be irrelevant under the law. That this blatant discrimination was allowed to persist for so long should be a source of national shame. And that Mr. Scalia might rail against a ruling that is only reflective of our Constitution should be a similar source of shame.
There are real, grave issues facing our nation and our world. That 2 consenting adults of the same gender might want their relationship recognized in the eyes of the State is not one of them.
There are real, grave issues facing our nation and our world. That 2 consenting adults of the same gender might want their relationship recognized in the eyes of the State is not one of them.
4
Justice Scalia's ignorance is breathtakingly demonstrated in the alleged assertion that "there is no principled basis for distinguishing child molesters from homosexuals." There may be no principled basis but there is a legal one: minors are deemed by the judicial system to be incapable of giving informed consent to having sex, simply by virtue of their status as minors. It's an entirely different story with regard to homosexuals. Only a rabble-rouser such as Justice Scalia would think otherwise.
3
"No state . . . shall deny to any person within its jurisdiction the equal protection of its laws."
Originally written with newly freed slaves in mind, it took time to apply these words to some other groups - such as women - suffering legal discrimination because of unreasonable prejudice. Now a majority of his colleagues have essentially decided that legal prejudice against gay people is unreasonable. They embraced the reality that sexual orientation is ingrained, not a lifestyle choice. They also embraced the reality, demonstrated by experience since Massachusetts first allowed same-sex marriage, that treating gays equally is not going to rend the social fabric.
Scalia is not stupid. He can read the words. I suspect he just can't accept a world in which the civil society is more Christian (i.e., loving and non-judgmental) than the Church he is a member of.
Originally written with newly freed slaves in mind, it took time to apply these words to some other groups - such as women - suffering legal discrimination because of unreasonable prejudice. Now a majority of his colleagues have essentially decided that legal prejudice against gay people is unreasonable. They embraced the reality that sexual orientation is ingrained, not a lifestyle choice. They also embraced the reality, demonstrated by experience since Massachusetts first allowed same-sex marriage, that treating gays equally is not going to rend the social fabric.
Scalia is not stupid. He can read the words. I suspect he just can't accept a world in which the civil society is more Christian (i.e., loving and non-judgmental) than the Church he is a member of.
3
Lawrence v. Texas and its illegitimate progeny festoon upon the Constitution a "right" that is utterly unknown to its framers: neither the framers nor ratifiers of the Bill of Rights nor the 14th Amendment ever considered that sexual differentiation was irrelevant to marriage, much less that the rights they were protecting mandated it. So, when courts invent "rights" and impose them by raw judicial power on the country, what is the proper response? Posner proposes his own secular theocracy: a judicial clerisy in which five unelected people suddenly are empowered to make an infallible finding that binds all Americans, not just in action but essentially in belief if they want to be in Constitutional bonne foi. Or, as Justice Scalia (following that other Republican radical, Abraham Lincoln) rightly noted: resistance to judicial dictatorship and refusal to confuse the supremacy of the Constitution with judicial supremacy. Pace Posner et al., having Antonin Scalia on the Supreme Court is a refreshing and necessary perspective to the intellectual midgets like Ruth Bader Ginsburg, Sonia Sotomayor, and Stephen Breyer, whose sole contributions to jurisprudence is conforming it to Democratic Party platforms.
Until the past decade or two, no one - liberal or conservative - could imagine a Supreme Court decision finding a constitutional right to same-sex marriage. So what happened between then and now? Did the Constitution change? No, the only thing that changed was public opinion, which was moving rapidly towards approval of same-sex marriage.
But should public opinion be the guiding force behind Supreme Court decisions? I would hope not - going against public opinion is how minority rights are protected. Wouldn't it have been nice if the Supreme Court had ruled against the internment of US citizens of Japanese ancestry instead of following public opinion and approving Roosevelt's actions?
Scalia's opinion merely states that on issues where the Constitution is silent, as it is on same-sex marriage (and abortion), the people, through their legislators, should be deferred to. Whether public opinion is based on religious beliefs or not is irrelevant.
And finally, contrary to the authors' claim, the Obergefell and Dred Scott decisions are comparable in that both were based on politics rather than the text of the Constitution.
But should public opinion be the guiding force behind Supreme Court decisions? I would hope not - going against public opinion is how minority rights are protected. Wouldn't it have been nice if the Supreme Court had ruled against the internment of US citizens of Japanese ancestry instead of following public opinion and approving Roosevelt's actions?
Scalia's opinion merely states that on issues where the Constitution is silent, as it is on same-sex marriage (and abortion), the people, through their legislators, should be deferred to. Whether public opinion is based on religious beliefs or not is irrelevant.
And finally, contrary to the authors' claim, the Obergefell and Dred Scott decisions are comparable in that both were based on politics rather than the text of the Constitution.
Scalia draws a dichotomy between elected and unelected government officials, but the dichotomy is not as stark as he seems to think. In fact, our government is mostly run by unelected officials, from cabinet secretaries to police officers. There is nothing in the least undemocratic about that - our unelected government officials are all appointed to their jobs through a chain of command that ultimately leads to somebody who won an election.
Same with Supreme Court justices. They are appointed by elected presidents and they are confirmed by elected senators. And justices are very much aware of political trends.
It has long been regarded as great wisdom that Finley Peter Dunne's Mr. Dooley said, in 1901, that "the Supreme Court reads the elections returns." FDR proposed his "court-packing plan" to get around the 5 - 4 majority that kept throwing out his New Deal initiatives, and Justice Owen Roberts changed sides. No one seriously imagines that Roberts's change of mind came without regard to the popular and political unpopularity of the Court's majority.
The fact is, as much as we hate to face up to it, the Supreme Court is a political body. Unlike other political bodies, the Court has to explain itself with reference to principles, precedents and legal texts, but that constraint hardly means that politics never enters into it. Otherwise, why would we talk about the Court's "liberals" and "conservatives"?
politicsbyeccehomo.wordpress.com
Same with Supreme Court justices. They are appointed by elected presidents and they are confirmed by elected senators. And justices are very much aware of political trends.
It has long been regarded as great wisdom that Finley Peter Dunne's Mr. Dooley said, in 1901, that "the Supreme Court reads the elections returns." FDR proposed his "court-packing plan" to get around the 5 - 4 majority that kept throwing out his New Deal initiatives, and Justice Owen Roberts changed sides. No one seriously imagines that Roberts's change of mind came without regard to the popular and political unpopularity of the Court's majority.
The fact is, as much as we hate to face up to it, the Supreme Court is a political body. Unlike other political bodies, the Court has to explain itself with reference to principles, precedents and legal texts, but that constraint hardly means that politics never enters into it. Otherwise, why would we talk about the Court's "liberals" and "conservatives"?
politicsbyeccehomo.wordpress.com
I am appalled by those claiming that they know the Constitution, yet seek to ignore the fact that it is a product of the People. The rights protected in the Constitution, by extension, are also determined by the People. So to say that Scalia is so far off the mark by defending the will of the People is absurd. If the People never recognized a right, then it cannot be in the Constitution because that is who determined to establish it. I ask the following: If the Constitution protects the 'rights' you're speaking of, then where did it get that authority? If only a minority has ever supported those 'rights,' then how did that minority ever manage to get them into the Constitution? By whom was this oligarchy established? Yes, minorities are supposed to be protected from unjust tyranny of the majority. But I also thought that we were against a minority imposing its will on the minority (e.g., a king). I thought the Constitution protected the rights of both minorities and majorities. But maybe I've been living in a fantasy.
Okay, if we replace "homosexual" with "catholic" would Scalia feel the same? But that's beside the point. The fact that we have a Supreme Court Justice comparing homosexuals (consenting adults) with child molesters (criminals committing horrific acts of violence against powerless, child victims) shows Scalia's inability to act as a reasonable juris. The fact that he considers the Supreme Court's duty to interpret the laws of the land subject to and inferior to the whims of elected officials (think Ted Cruz) seeking reelection and notoriety must lead us to the conclusion that Justice Antonin Scalia is no longer fit to serve this nation as a Supreme Court Justice and should be removed as soon as possible and until such time as he can be removed that he be censured in all duties. Furthermore, a review of all of his works should begin immediately with the intent to ensure his current insanity has not polluted previous decisions. His current state of mind is a threat to our nation and we must evaluate exactly when this insanity began and how it has thus far affected our great nation.
In a recent Bloomberg poll, 78% of Americans want Citizens United overturned and major limitations put on money's influence in politics.
But Scalia has never been concerned with democracy, consistency or the will of the people.
He is simply angry that his colleagues on the Supreme Court disagreed with his poorly argued opinions and biases regarding Obergefell v. Hodges.
In highly loaded language he claims there is no principled basis for distinguishing gay people from child molesters.
Well, if not, there is no principled basis for distinguishing heterosexuals from child molesters either.
Of course, what distinguishes both from child molesters is that there is consent and there is no harm committed in same or opposite sex relations between consenting adults.
If bigotry and enmity of the majority against a minority are what make discriminatory laws just in Scalia's mind, I guess he just forgot or decided to ignore the 14 Amendment.
Scalia was a disastrous appointment to the Supreme Court.
Imagine if Robert Bork had been appointed to the Court as planned instead of Anthony Kennedy?
But Scalia has never been concerned with democracy, consistency or the will of the people.
He is simply angry that his colleagues on the Supreme Court disagreed with his poorly argued opinions and biases regarding Obergefell v. Hodges.
In highly loaded language he claims there is no principled basis for distinguishing gay people from child molesters.
Well, if not, there is no principled basis for distinguishing heterosexuals from child molesters either.
Of course, what distinguishes both from child molesters is that there is consent and there is no harm committed in same or opposite sex relations between consenting adults.
If bigotry and enmity of the majority against a minority are what make discriminatory laws just in Scalia's mind, I guess he just forgot or decided to ignore the 14 Amendment.
Scalia was a disastrous appointment to the Supreme Court.
Imagine if Robert Bork had been appointed to the Court as planned instead of Anthony Kennedy?
We are in the middle of huge societal changes that are deeply upsetting to many people.
Our economy is changing from manufacturing to knowledge and service based economies with huge dislocations for those who can't keep up.
The decisions on homosexuality have been made with breathtaking speed. Such changes usually take 40 - 50 years and we have seen society basically reverse its opinion in about 10.
In addition the baby boom generation is now entering its retirement years. Contrary to its expectations, this will not be a golden time of grace and learning. Both our economy and world events have coincided to create an environment where boomers feel financially strained and whipsawed by events.
I think Scalia and on a much cruder scale Trump, are expressing the fears of people who have been unable to keep up with the pace of changes in their world. This has left them feeling adrift and longing for stability. The problem for our politicians is that these same people vote at a much higher rate than the more flexible young people for whom these changes are met with a 'meh.' Contrary to the young people, the boomers do not bow toward the alter of political correctness and could care less about 'safe places.' The boomers also have the votes to enforce their views. The next 10 - 15 years should be interesting indeed.
Our economy is changing from manufacturing to knowledge and service based economies with huge dislocations for those who can't keep up.
The decisions on homosexuality have been made with breathtaking speed. Such changes usually take 40 - 50 years and we have seen society basically reverse its opinion in about 10.
In addition the baby boom generation is now entering its retirement years. Contrary to its expectations, this will not be a golden time of grace and learning. Both our economy and world events have coincided to create an environment where boomers feel financially strained and whipsawed by events.
I think Scalia and on a much cruder scale Trump, are expressing the fears of people who have been unable to keep up with the pace of changes in their world. This has left them feeling adrift and longing for stability. The problem for our politicians is that these same people vote at a much higher rate than the more flexible young people for whom these changes are met with a 'meh.' Contrary to the young people, the boomers do not bow toward the alter of political correctness and could care less about 'safe places.' The boomers also have the votes to enforce their views. The next 10 - 15 years should be interesting indeed.
In a recent Bloomberg poll, 78% of Americans want Citizens United overturned and major limitations put on money's influence in politics.
But Scalia has never been concerned with democracy, consistency or the will of the people.
He is simply angry that his colleagues on the Supreme Court disagreed with his poorly argued opinions and biases regarding Obergefell v. Hodges.
In highly loaded language he claims there is no principled basis for distinguishing gay people from child molesters.
Well, if not, there is no principled basis for distinguishing heterosexuals from child molesters either.
Of course, what distinguishes both from child molesters is that there is consent and there is no harm committed in same or opposite sex relations between consenting adults.
If bigotry and enmity of the majority against a minority are what make discriminatory laws just in Scalia's mind, I guess he just forgot or decided to ignore the 14 Amendment.
Scalia was a disastrous appointment to the Supreme Court.
Imagine if Robert Bork had been appointed to the Court as planned instead of Anthony Kennedy?
But Scalia has never been concerned with democracy, consistency or the will of the people.
He is simply angry that his colleagues on the Supreme Court disagreed with his poorly argued opinions and biases regarding Obergefell v. Hodges.
In highly loaded language he claims there is no principled basis for distinguishing gay people from child molesters.
Well, if not, there is no principled basis for distinguishing heterosexuals from child molesters either.
Of course, what distinguishes both from child molesters is that there is consent and there is no harm committed in same or opposite sex relations between consenting adults.
If bigotry and enmity of the majority against a minority are what make discriminatory laws just in Scalia's mind, I guess he just forgot or decided to ignore the 14 Amendment.
Scalia was a disastrous appointment to the Supreme Court.
Imagine if Robert Bork had been appointed to the Court as planned instead of Anthony Kennedy?
1
It is very unfortunate for We the People, that such a delusioned individual, biased to an incredible extent, and bereft of the wisdom to keep his personal foolish and narrow-minded opinions to himself, sits on our Supreme Court. The entity designed to upload the law, rights, reason, and wisdom. This man is lacking in the latter two
I missed in the Constitution where it stated that moral opprobriums were to be upheld and defended.
The mistaken conflation of a legal right, marriage, with the Holy Sacrament/Rite of Marriage should be obvious to the least intelligent judge, and has long been overdue for a correction. Yet here we have a not very highly invested in humility person who seems to think only moral opprobriums he agrees with are important. Never mind campaign finance, racial discrimination, sexual discrimination, etc.
No principled basis? Certainly not between his ears or in his heart.
There are two individuals who have absolutely no business being on the SCOTUS and appointing them showed contempt for our legal system and our country. Would that they could be recalled.
I missed in the Constitution where it stated that moral opprobriums were to be upheld and defended.
The mistaken conflation of a legal right, marriage, with the Holy Sacrament/Rite of Marriage should be obvious to the least intelligent judge, and has long been overdue for a correction. Yet here we have a not very highly invested in humility person who seems to think only moral opprobriums he agrees with are important. Never mind campaign finance, racial discrimination, sexual discrimination, etc.
No principled basis? Certainly not between his ears or in his heart.
There are two individuals who have absolutely no business being on the SCOTUS and appointing them showed contempt for our legal system and our country. Would that they could be recalled.
"The logic of his position is that the Supreme Court should get out of the business of enforcing the Constitution altogether, for enforcing it overrides legislation, which is the product of elected officials, and hence of democracy. The model he appears to be embracing is that of the traditional British Constitution."
What a blatant fallacy.
The authors are not saving themselves from being fallacious with the above statement just because they next say "We doubt that Justice Scalia would go that far, for he has repeatedly voted to strike down statutes that, ...."
Make up your minds.
Scalia's point, of course, was not, and is not, that no laws at all should be struck down. His point was that the Court majority's interpretation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment were grossly mistaken.
I'm gay, and I'm absolutely sure that the Supreme Court was grossly, egregiously wrong in Romer v. Evans, Lawrence v. Texas, U.S. v. Windsor, and Obergefell v. Hodges. Not only was the Supreme Court's interpretation of the Due Process Clauses of the Fifth and Fourteenth Amendments and the Equal Protection Clause of the Fourteenth wrong, but so too were the Court's interpretation of the DP and EP Clauses in cases such as Griswold v. Connecticut, Roe v. Wade, Planned Parenthood v. Casey, Levy v. Louisiana, Plyler v. Doe, and numerous other cases.
When there are too many laws being struck down that should not have been, that is why we should stop calling it D
What a blatant fallacy.
The authors are not saving themselves from being fallacious with the above statement just because they next say "We doubt that Justice Scalia would go that far, for he has repeatedly voted to strike down statutes that, ...."
Make up your minds.
Scalia's point, of course, was not, and is not, that no laws at all should be struck down. His point was that the Court majority's interpretation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment were grossly mistaken.
I'm gay, and I'm absolutely sure that the Supreme Court was grossly, egregiously wrong in Romer v. Evans, Lawrence v. Texas, U.S. v. Windsor, and Obergefell v. Hodges. Not only was the Supreme Court's interpretation of the Due Process Clauses of the Fifth and Fourteenth Amendments and the Equal Protection Clause of the Fourteenth wrong, but so too were the Court's interpretation of the DP and EP Clauses in cases such as Griswold v. Connecticut, Roe v. Wade, Planned Parenthood v. Casey, Levy v. Louisiana, Plyler v. Doe, and numerous other cases.
When there are too many laws being struck down that should not have been, that is why we should stop calling it D
Justice Scalia considers homosexuality as chosen, distinguishing it from either gender or race. As such, he believes strongly that it manifests a route to each minority interests forcing its choices on the country. In many of these cases, demonizing those who oppose it who are doing so largely on religious grounds, the triumphs of aggrieved minorities represent a two-fer and gain both an expansion of "normal" and a blow to those who hold religious views others oppose.
Next we will see the transgender issue in full force, because once a group succeeds in moving its status to a legally-protected position, it draws on the collective progress to support new causes in solidarity: "You had my back; I have yours". Transgender is a grotesque outgrowth of narcissism running amok in our culture: I identify as the opposite sex, therefore everyone must respect that, even to the point of making ridiculous and harmful surgeries part of my road to redemption.
We are doing harm to the fabric of our culture, and we will see its effects in coming generations. Instead of self-governance we are turning to a model of mutual permissiveness. And there will be no bounds to where we stop, because each battle becomes another opportunity to squelch the religious scolds, the only ones looking on the horror of the way in which we are tearing at our country, dividing people in micro-groups of aggrieved parties and rights denied.
Scalia's quest is not relgious. It is rational. We no longer are.
Next we will see the transgender issue in full force, because once a group succeeds in moving its status to a legally-protected position, it draws on the collective progress to support new causes in solidarity: "You had my back; I have yours". Transgender is a grotesque outgrowth of narcissism running amok in our culture: I identify as the opposite sex, therefore everyone must respect that, even to the point of making ridiculous and harmful surgeries part of my road to redemption.
We are doing harm to the fabric of our culture, and we will see its effects in coming generations. Instead of self-governance we are turning to a model of mutual permissiveness. And there will be no bounds to where we stop, because each battle becomes another opportunity to squelch the religious scolds, the only ones looking on the horror of the way in which we are tearing at our country, dividing people in micro-groups of aggrieved parties and rights denied.
Scalia's quest is not relgious. It is rational. We no longer are.
I am not a lawyer. I have no in-depth knowledge of the Constitution for that matter either.
But I do recognize when a Justice has crossed the line between making a decision that is secular based versus religiously-based. paragraph
I also agree with the authors of this article that someone likes Scalia who so adamantly criticizes his own court for legislating from the bench has done an awful lot of that. I understand he is a staunch Catholic, but the fact that he refuses to accept that America is a secular society based on civil laws is in violation of the First Amendment. Frankly I don't think justice Scalia has been able to adjust to changing social mores in this country.
Lastly I would ask why is Justice Scalia always so angry? The last place we need anger is the Supreme Court, an enshrined institution where Americans have every right to expect these justices are acting judiciously to serve the best interests of all citizens.
But I do recognize when a Justice has crossed the line between making a decision that is secular based versus religiously-based. paragraph
I also agree with the authors of this article that someone likes Scalia who so adamantly criticizes his own court for legislating from the bench has done an awful lot of that. I understand he is a staunch Catholic, but the fact that he refuses to accept that America is a secular society based on civil laws is in violation of the First Amendment. Frankly I don't think justice Scalia has been able to adjust to changing social mores in this country.
Lastly I would ask why is Justice Scalia always so angry? The last place we need anger is the Supreme Court, an enshrined institution where Americans have every right to expect these justices are acting judiciously to serve the best interests of all citizens.
5
So let's block his and Thomas' faith. There is historical precedent for that. It is after all it is not democratic claiming only its legitimacy, seeks to rule from a foreign state in Italy (Roman Catholic Church), discriminates against women in employment (priests), has a history of immoral legal acts against children, fails to provide employees uniform healthcare (no contraception for other Christian denominations), removes large amounts of money overseas, and dismisses medical science in hospitals (let women die, preserve the unborn even if it will die).
He wants it his way. The rest of his fellow citizens, or even other Christians, do not count. The separation of church and state reflected centuries of ruthless religious war a la middle east today. These wars destroyed economies, progress, populations, and governments. So let's not talk those precedents.
He wants it his way. The rest of his fellow citizens, or even other Christians, do not count. The separation of church and state reflected centuries of ruthless religious war a la middle east today. These wars destroyed economies, progress, populations, and governments. So let's not talk those precedents.
The writers in discussing Scalia's views about recent decisions that relate to gays are speaking of two separate issues. That gays deserve protection from discrimination, and that there is a right to gay marriage.
It was in regard to their right to be protected from discrimination that he made the comment that many Americans view homosexuality as immoral and it was in that context that he asked why the distinction between gays and child molesters. And, to be fair, he did have a valid point.
And that is that is that society holds it is proper to discriminate against pedosexuals. A pedosexual is no different than a homosexual in regard to the fact that this is his natural sexual orientation. Yet society accepts that it is proper to discriminate against pedosexuals because of the nature of their sexuality itself, even if they had not molested any children because the desire for children itself is viewed as immoral. And this was the same reason that discrimination against gays was always the norm.
So the only reason that gays are now deemed to be deserving of protection is because of a decision on the part of 9 lawyers that homosexuality is indeed moral. And the ruling on gay marriage was also only because homosexual relationships were deemed to be good and proper. If homosexuality was viewed as morally depraved there certainly would not be a right to it.
So Scalia is right that the decisions in regard to gays were based on moral judgement and not on constitutional law.
It was in regard to their right to be protected from discrimination that he made the comment that many Americans view homosexuality as immoral and it was in that context that he asked why the distinction between gays and child molesters. And, to be fair, he did have a valid point.
And that is that is that society holds it is proper to discriminate against pedosexuals. A pedosexual is no different than a homosexual in regard to the fact that this is his natural sexual orientation. Yet society accepts that it is proper to discriminate against pedosexuals because of the nature of their sexuality itself, even if they had not molested any children because the desire for children itself is viewed as immoral. And this was the same reason that discrimination against gays was always the norm.
So the only reason that gays are now deemed to be deserving of protection is because of a decision on the part of 9 lawyers that homosexuality is indeed moral. And the ruling on gay marriage was also only because homosexual relationships were deemed to be good and proper. If homosexuality was viewed as morally depraved there certainly would not be a right to it.
So Scalia is right that the decisions in regard to gays were based on moral judgement and not on constitutional law.
1
Scalia is like the Republican hypocrites in Congress. They campaign on wanting smaller government, or as Grover Norquist says, "a government that can fit into a bathtub." Yet they want to be part of the very government they claim to loathe, collecting salaries and benefits they want to deny those not in the government. Now Scalia, who has been part of this court for 20 some years complains about this very court when its decisions are contrary to his. Stepping down is an option for him if he is so unhappy, which, of course, he would never do.
But it does beg the question as to why this unelected court of 9 people are allowed to make decisions for decades. Bernie Sanders voters, like me, who may not vote for the Democrat candidate in the general election if it is Clinton, a candidate we view as unacceptable are told, "What about the Supreme Court." Term limits for Supreme Court justices would help to a great degree. People wouldn't be told to vote for a candidate they disagree with on many issues, just based on who they person, as president, would appoint for the highest court. No one judge would be able to play such a undemocratic role for more than say 8 to 10 years and poor justice Scalia would be taken out of his misery once and for all.
But it does beg the question as to why this unelected court of 9 people are allowed to make decisions for decades. Bernie Sanders voters, like me, who may not vote for the Democrat candidate in the general election if it is Clinton, a candidate we view as unacceptable are told, "What about the Supreme Court." Term limits for Supreme Court justices would help to a great degree. People wouldn't be told to vote for a candidate they disagree with on many issues, just based on who they person, as president, would appoint for the highest court. No one judge would be able to play such a undemocratic role for more than say 8 to 10 years and poor justice Scalia would be taken out of his misery once and for all.
2
Justice Scalia was absolutely correct, and I applaud him for stating what is abundantly clear. The jurisdiction of the United States Supreme Court has been grossly and unreasonably expanded to interfere with the most basic rights of citizens in the act of self-government. This is a federal system, and the decisions of which Justice Scalia rightly complains, along with many others, reduce the states, and the people of the states, from the sources of political power, and the source of the right of self-government, to a set of appendages waiting on decisions of the United States Supreme Court. Justice Scalia should carry his conclusions to their natural conclusions, however, and include gun rights and the interpretation of the 2nd Amendment, as part of the unwarranted exercise of an assumed jurisdiction over the rights of the states: just as the state of Pennsylvania should have the right, for Pennsylvanians, to interpret the requirements of the U.S. Constitution on gay marriage, it should also have the same right to determine school prayer, abortion, gun ownership and gun control, etc. That is what self-government is: the people, by democratic process, deciding these issues for themselves; not deferring the most important decisions to nine 'ministers of justice' in a distant locale. The framers of the Bill of Rights would be astonished and appalled at the complete perversion of its intention, which was to protect the states from the federal government.
Scalia's logical failings are troubling. We are talking about a man who claims not to see the difference between private sexual activity of consenting adults and acts commited by an adult and a child, who by law cannot provide consent. If he can't make that distinction, and if he is openly advocating that people ignore Supreme Court decisions, he shouldn't be permitted to practice law. At what point can a justice be impeached for clearly losing the ability to reason?
133
Scalia is an unassimilated Italian. He still retains the value system of a peasant in a backward Italian village. He has never absorbed the values of America and he's a perfect example of the problem of having a mosaic rather than a melting pot.
10
He tries to come across as principled but his unbridled arrogance demolishes any trace of that, as do his personal prejudices (such as citing "the homosexual agenda").
6
If he hates the Supreme Court so much, why doesn't he just resign.
6
Scalia is likely getting Senile. Classic loss of higher level control over his base emotions. He should be Impeached and removed from his position.
7
What Justice Scalia fails to recognize is that the essence of constitutional democracy are that there are commitments which are upheld even if the majority of citizens are of the opposite opinion. Constitutional principles continue to be in effect even when "light and transient causes" push in the other direction.
2
I hope it doesn't come as a surprise but the justices have opinions that were crafted and created independently of law. Like the rest of us their perspectives were developed as they grew, influenced by family, friends, education and, most critically, by their religious upbringing.
When it comes to ruling on a case before them they, in virtue of their job description, must do so on the basis of their interpretation of the Constitution. So each justice listens to the arguments, scans relevant files and documents, rummages through the vast sea of precedents and plucks the ones that fit with the opinions they had all along.
Scalia has shown himself to be singularly adept at this little game though, as Posner and Segall note, in the struggle to keep his decisions aligned with his beliefs he is slowly strangling himself.
When it comes to ruling on a case before them they, in virtue of their job description, must do so on the basis of their interpretation of the Constitution. So each justice listens to the arguments, scans relevant files and documents, rummages through the vast sea of precedents and plucks the ones that fit with the opinions they had all along.
Scalia has shown himself to be singularly adept at this little game though, as Posner and Segall note, in the struggle to keep his decisions aligned with his beliefs he is slowly strangling himself.
2
Scalia has no principles, only arguments, which he invokes to get the result he wants. His "legal" is always a function of his religious/cultural/social/economic views(see Bush v. Gore). He is and has always been precisely the sort of judge that pretends to rail against and he is utterly unsuited to the position he holds. Moreover, having heard him speak to a legal gathering a year or so ago (while he was promoting his latest book), it was more than apparent that he has lost more than a little off his fast ball. He is getting slower and more confused. He must have some pretty good clerks. There ought to be a means to remove him rather than being stuck with him until he dies.
7
Scalia's a disaster. It's always shocking to read his Lawrence dissent but for some reason I'm strangely uplifted by the fact that his language is so out of place now. Not amongst the hardened minority of course but it's clear that talk of not wanting gays "as partners in business" or "as boarders in one's home" is so antiquated it sounds like it came from my dear Aunt Ethel in 1919. "Homosexual agenda" has a mainly comical connotation now. "Protecting" one's family from gays is just stupid.
I understand that as gay people we can never take our hard-fought rights for granted, and the current crop of Republicans is truly frightening, but I have to take the long view. Scalia can still do lots of damage to be sure but the world is leaving him and his ugliness behind.
I understand that as gay people we can never take our hard-fought rights for granted, and the current crop of Republicans is truly frightening, but I have to take the long view. Scalia can still do lots of damage to be sure but the world is leaving him and his ugliness behind.
11
If we were to follow Scalia's logic on gay people and child molesters being the same, I suppose that e.g. a male rapist of a woman should be granted the same treatment as her consensual partner. After all - the common fact pattern in the child molester and rapist scenarios is that one party did not or could not legally consent.
"..law profession's anti-anti-homosexual culture..", "homosexual agenda". Scalia sounds just like Ignatius J. Reilly in Confederacy of Dunces. But he's blathering on the Supreme Court, not in NOLA, w/o grace, wit or humanity.
He knows these dissents give fuel to our Christian Taliban to ignore the law.
How do we petition this guy out, or put him on trial for overt meanness, bigotry, subverting order and using religion as a cudgel on the high court?
He knows these dissents give fuel to our Christian Taliban to ignore the law.
How do we petition this guy out, or put him on trial for overt meanness, bigotry, subverting order and using religion as a cudgel on the high court?
8
I suspect it may not be obvious to non-lawyers how extraordinary this piece is. Richard Posner is not only one of the most respected appellate judges in the Federal judicial system, he is also a highly respected thinker and academic associated with the "law and economics" school of legal analysis. He was appointed to the bench by Ronald Reagan and was considered, by the standards of that (bygone) time, to be relatively conservative. This public and deeply personal criticism of Scalia -- who is, in a sense, his superior -- would have been considered unthinkable, possibly even unethical, not so long ago. One can only believe that Posner as a judge, lawyer and citizen is deeply offended by Scalia's conduct and public statements, and rightly so. Scalia is basically calling into question the rule of law, the role of the Supreme Court and the legitimacy of the judicial system itself. The views he is expressing are deeply, frighteningly, almost unthinkably radical for someone who swore an oath to the Constitution. That these views appear to be purely a reaction to certain decisions with which Scalia disagrees, rather than the result of any kind of rigorous analysis that would apply to other subjects, must offend Posner all the more. Whatever his reasons, this is a brave and extraordinary act, and one can only hope that people understand the significance of what is going on here -- nothing less than the future of our form of government is at stake.
14
We we must somehow come to the truth that the emporer has no clothes, that religion is myth, no matter how manny claim other wise.
4
Scalia is the worst. Can't wait until he's off the bench.
6
If Justice Scalia truly feels that the nine unelected lawyers who make up the Supreme Court are a tool in the destruction of American democracy, he should have the moral courage to resign, and work to preserve our democracy from outside the judicial system. If not, he remains a perpetrator in the death of democracy. But, why do that when he can keep his elite, tax payer funded lifetime job, and destroy democracy from within via decisions such as Citizens United.
15
Homosexuals want to get together. Many of them claim they have no choice about this desire. Some of the rest of us also want to get together. And if they have no choice, do we? But some majority of the 9 want to deny us the right to get together.
1
He's another example of a person that might be considered intelligent but not wise. He should resign for the good of the country.
17
This is what you get when you vote Republican. Morons in the highest offices of the land.
23
"his political ideal verges on majoritarian theocracy"
Mr. Scalia's perspective does not "verge" on this, Mr. Scalia believes in a mix of theocracy and plutocracy for the political governance of the USA.
The USA has had many problems throughout its existence, but the country has been on a very rapid downward slide since the election of Ronald Reagan to the USA presidency in 1980. That is the point where the extreme right gained national power. One should keep in mind that the extreme right was vilified by mainstream Republicans in the era of Dwight Eisenhower. He despised his Vice-President, Richard Nixon, for his Orange County CA red-baiting and similar. He openly vilified people such as Barry Goldwater. Yet Mr. Nixon was ultimately a moderate with respect to the group of Republican politicians who have gained office since the Reagan election.
The extreme right has increased its grip on national policy and politics since then. The primary goal of the extreme right is the apotheosis of wealth and income. It has not quite achieved its goal of zero taxation of the top .1% of greatest wealth and income, but that is the overriding goal. Theocracy is a side effect of that. The appeal to theocracy is to convince fundamentalist Christians to vote for extreme rightist candidates. Similar appeals are routinely made on so-called "social issues" to the ignorant, poorly educated white electorate that feels increasingly marginalized by society.
Mr. Scalia's perspective does not "verge" on this, Mr. Scalia believes in a mix of theocracy and plutocracy for the political governance of the USA.
The USA has had many problems throughout its existence, but the country has been on a very rapid downward slide since the election of Ronald Reagan to the USA presidency in 1980. That is the point where the extreme right gained national power. One should keep in mind that the extreme right was vilified by mainstream Republicans in the era of Dwight Eisenhower. He despised his Vice-President, Richard Nixon, for his Orange County CA red-baiting and similar. He openly vilified people such as Barry Goldwater. Yet Mr. Nixon was ultimately a moderate with respect to the group of Republican politicians who have gained office since the Reagan election.
The extreme right has increased its grip on national policy and politics since then. The primary goal of the extreme right is the apotheosis of wealth and income. It has not quite achieved its goal of zero taxation of the top .1% of greatest wealth and income, but that is the overriding goal. Theocracy is a side effect of that. The appeal to theocracy is to convince fundamentalist Christians to vote for extreme rightist candidates. Similar appeals are routinely made on so-called "social issues" to the ignorant, poorly educated white electorate that feels increasingly marginalized by society.
24
I agree that the long downward slide of American tolerance and inclusion began with the presidency of Ronald Reagan. He is worshiped by the hard right not for his actual governance but by his philosophic comments about government. Indeed he signed legislation in California to protect abortion, as president, he signed tax increases, but his overriding philosophy was anti-democratic government and pro accumulation of wealth within the wealthiest people.
Thank you for your well-articulated comments.
In my retirement, I have had the opportunity to read all day long, mostly history and science. I guess I should not be surprised that throughout history, the top 1% or even .1% have been very successful at tax avoidance, whereas the lower classes (for most of the last millennium read peasantry) were overburdened with them. The gentry/aristocracy/nobility also have been generally very successful at keeping wages at a minimum, slavery and corvee labor being not unusual; despite their public pronouncements, Republicans and Wall St. are very happy to see higher unemployment numbers - more competition for jobs translates to depressed wages and thus reduced expenses and higher profits. There is nothing new under the sun.
In my retirement, I have had the opportunity to read all day long, mostly history and science. I guess I should not be surprised that throughout history, the top 1% or even .1% have been very successful at tax avoidance, whereas the lower classes (for most of the last millennium read peasantry) were overburdened with them. The gentry/aristocracy/nobility also have been generally very successful at keeping wages at a minimum, slavery and corvee labor being not unusual; despite their public pronouncements, Republicans and Wall St. are very happy to see higher unemployment numbers - more competition for jobs translates to depressed wages and thus reduced expenses and higher profits. There is nothing new under the sun.
The rule with the likes of Scalia is to watch what they do because what they say is just dissimulation.
Scalia has, almost single-handedly, done more to damage the reputation of the SCOTUS than any other justice. Thomas is down there too, but since he is largely mute we don't get much in the way of sound bites from him. What an embarrassment for a nation that touts its love of the Rule of Law.
22
"he argued that there is no principled basis for distinguishing child molesters from homosexuals". Seriously? Any intelligent person can easily show a distinguishing principled basis: informed consent between adults vs. a minor child who cannot legally give consent, informed or otherwise. This man is a Supreme Court justice??
19
One thing is certain, like the Roe decision, Obergefell is not the end of the war it's just the beginning of a new front of the same war. The only question is will it be as ugly and as politically polarizing and as destructive to a sense of a shared community as Roe has been.
'Course, we don't need to all sing kumbaya together as its much more important to enshrine the principle that grown-ups should be constitutionally protected from doing whatever grown-ups want to do so long as the grown-ups decide there's no harm i doing whatever it is they want to do. Problem is, for me at least, though I can relatively easily dismiss those other guys (including Scalia) as uneducated, fear-filled bigots, I'm not sure who, i this world, really qualifies as a "grown-up" as there just seem to be far too much certainty who those who claim that mantle.
'Course, we don't need to all sing kumbaya together as its much more important to enshrine the principle that grown-ups should be constitutionally protected from doing whatever grown-ups want to do so long as the grown-ups decide there's no harm i doing whatever it is they want to do. Problem is, for me at least, though I can relatively easily dismiss those other guys (including Scalia) as uneducated, fear-filled bigots, I'm not sure who, i this world, really qualifies as a "grown-up" as there just seem to be far too much certainty who those who claim that mantle.
2
I disagree. The proportion of the public that disagrees with legal abortion has stayed roughly the same since Roe. The proportion of the public that supports same sex marriage has been increasing rapidly and will continue to increase.
For that reason, I think same sex marriage will be more like the civil rights movement - less controversial over time.
For that reason, I think same sex marriage will be more like the civil rights movement - less controversial over time.
We hear how intelligent, articulate and well read our Justices are.
If that were the case, wouldn't he be smart enough to keep his mouth shut on such issues, except when writing his dissent, and then to tone it down to not look so bigoted?
If that were the case, wouldn't he be smart enough to keep his mouth shut on such issues, except when writing his dissent, and then to tone it down to not look so bigoted?
6
It always amazes me that conservatives like Scalia, who rail against the government's interference in our lives, can claim that the government enforcing religious morality isn't illegal.......which means Scalia is just another typical republican, where freedom only applies to corporations and the interests of the rich (from taxes, regulation, etc) and that freedom does not extend to individuals, his version of the Gettysburgh Address would be 'government by the people, for the people, and of the people,as long as 'people' means the established church and big business and the well off.
What Scalia forgets is that the constitution, outside the structure of government, was based in the idea that conservatives love to sing about, that the US is the land of the free, and that the basic idea of the constitution was that people had the right to live their lives as they saw fit, and that if you wanted to restrict that freedom, you had to show cause why.We have a constitution, unlike the British, because the founders knew the abuses of democratic and representative governments, the laws they can pass diminishing the rights fo people, and they put the constitution about that. We are a majority rules country with bounds, not an absolute democracy, and that was deliberate. The founders saw democracy as often being Mob rule, and what Scalia is preaching is that.
What Scalia forgets is that the constitution, outside the structure of government, was based in the idea that conservatives love to sing about, that the US is the land of the free, and that the basic idea of the constitution was that people had the right to live their lives as they saw fit, and that if you wanted to restrict that freedom, you had to show cause why.We have a constitution, unlike the British, because the founders knew the abuses of democratic and representative governments, the laws they can pass diminishing the rights fo people, and they put the constitution about that. We are a majority rules country with bounds, not an absolute democracy, and that was deliberate. The founders saw democracy as often being Mob rule, and what Scalia is preaching is that.
11
Let's not forget that Justice Scalia was in the majority in Shelby County v Holder, invalidating a portion of the Voting Rights Act. Justice Scalia certainly had no problem invalidating the will of the people in that case by judicial fiat. Justice Scalia's jurisprudence is no more than a charade for his political hackery.
16
Let's not get too carried away with the "ideology" of Scalia. His decisions are based mostly on which group benefits - he is in favor of big business, Republicans and religion (presumably Christian). He can take either side of the judicial activity or Constitution writers' intent questions as necessary for his partisan objectives.
7
It is clear that Scalia no longer rules on the basis of law and the Constitution, but on his moral position. That is all right for an individual but not for a judge whose objectivity is the most important characteristic. Scalia should resign since he no longer has any faith in the document on which his decisions should be based.
14
It could be the case that Scalia is a polished gay basher and uses religion to justify the bashing.
14
I agree. The strength of our society is not so much the right of all of us to participate in Government, important as that is, but the respect and dignity afforded the right of each of us to pursue our own pleasures. As the famous words from the Declaration of Independence say, each person is entitled to "the pursuit of happiness.".
Often the majority, through their elected representatives, suppress the rights of the individual. Witness the recent vote in Ohio where the majority tells the minority they may not smoke marijuana. When this happens, courts exist to step in with the power of the Constitution to defend the rights of the individual. The legislatures will never do so. They worry about what is popular. That's why I believe judges should be appointed and not elected. A judge will not defend the rights of the individual if he or she is too busy worrying about what is popular.
Often the majority, through their elected representatives, suppress the rights of the individual. Witness the recent vote in Ohio where the majority tells the minority they may not smoke marijuana. When this happens, courts exist to step in with the power of the Constitution to defend the rights of the individual. The legislatures will never do so. They worry about what is popular. That's why I believe judges should be appointed and not elected. A judge will not defend the rights of the individual if he or she is too busy worrying about what is popular.
8
I'm not particularly steeped in constitutional law or even legal etiquette but my sense is that the authors might consider this very strongly worded opinion piece to be the first salvo in a campaign to impeach Scalia.
And with him, a supposedly strict constructionist, clearly allowing his personal and sometimes religious preferences to dominate his judicial thinking, perhaps he should be impeached.
And with him, a supposedly strict constructionist, clearly allowing his personal and sometimes religious preferences to dominate his judicial thinking, perhaps he should be impeached.
29
I could be wrong, and if I am then feel free to jump all over me, but it's my understanding that there is no way within the Constitution to impeach, fire, or even track the ethics of a Supreme Court Justice.
"Life" on the Court is for life, no matter if one is a drug addict, in the pay of the corporations, or even goes full-bore loony.
Just one of those small details that was overlooked when the Constitution was written.
Scalia gets the last laugh on that.
"Life" on the Court is for life, no matter if one is a drug addict, in the pay of the corporations, or even goes full-bore loony.
Just one of those small details that was overlooked when the Constitution was written.
Scalia gets the last laugh on that.
I am surprised that Judge Posner would lend his name to such a poorly reasoned column. Scalia's position is that an issue such as same sex marriage, which is not expressly mentioned on the constitution, is one to be left for the people to decide through their elected representatives. If a legislature enacts a law authorizing same sex marriage than in Scalia's view same sex marriage would be legal, valid and constitutional - notwithstanding anyone's so-called religious objections to it. However, if the legislature did not do so, than same sex marriage would not be authorized. Now people can object to that second part - leaving people's rights to the whims of the majority, but to imply that Scalia's opposition to court-imposed same sex marriage is based on his personal bigotry towards gays is nonsense. And to selectively quote him out of context to imply that he thinks gay individuals are the same as child molesters is beneath Posner and Segall.
2
I think it is absolutely key that this piece is signed by Judge Posner. The contempt that Justice Scalia demonstrates for the Supreme Court of the United States is devastating to our democratic republic. He should step down. The malignant, demeaning, personally insulting, violent drivel that he calls "dissenting opinions" should not be published as part of our jurisprudence.
Equal protection is mentioned. It's silly to try to limit it to only apply to rights that are explicitly listed.
Hardly. His words are clear. Moreover even gay people can expect equal protection of the laws. What you just wrote is the same reasoning for Dred Scott.
By the way if Posner, a very well respected conservative jurist, writes this than Scalia is off the reservation. And you should reconsider your stance.
By the way if Posner, a very well respected conservative jurist, writes this than Scalia is off the reservation. And you should reconsider your stance.
The article seems deliberately to avoid the main thrust of Scalia's critique which is that the anti-majoritarian restrictions inherent in a Constitution ought to be interpreted and applied with considerable constraint precisely because they are anti-majoritarian. If the Constitution is instead to be interpreted as broadly open-textured and changeable in light of evolving social values than why is it left to 9 lawyers from an exceedingly narrow pool of candidates to supply those interpretations. Thus, Scalia isn't arguing for a majority based theocracy, but rather for a system of law based on majority rule save for restrictions in a Constitution read to the extent possible based on language anchored in its original understanding. That is as opposed to a system where an unelected body of 9 seers are empowered to announce that our societal values have evolved without regard to the views of a majority of the population.
26
Or that equal protection means EQUAL PROTECTION.
16
News flash! The "majority of the population" supports gay marriage. You're still living in the past.
But that's irrelevant, in the end. We don't leave the question of slavery up to majority vote. Just because Scalia's religion doesn't sanctify gay marriage doesn't mean that LGBT citizens should be deprived of the right to marry, visit each other in the hospital, share property, and yes, engage in bitter divorce battles. Those are all civil processes. If someone's religion chooses not to recognize a union as valid in the church, fine — but don't use that to dictate civil law.
But that's irrelevant, in the end. We don't leave the question of slavery up to majority vote. Just because Scalia's religion doesn't sanctify gay marriage doesn't mean that LGBT citizens should be deprived of the right to marry, visit each other in the hospital, share property, and yes, engage in bitter divorce battles. Those are all civil processes. If someone's religion chooses not to recognize a union as valid in the church, fine — but don't use that to dictate civil law.
So, you and Scalia don't believe that the Constitution actually guarantees equal protection under the law to all people?
Justice Scalia's denounced the Court's legalization of same-sex marriage because it amounted to "constitutional revision by an unelected committee of nine."
This followed his statement two years earlier, during oral arguments in Shelby vs. Holder, that whether to reenact the Voting Rights Act "is not the kind of a question you can leave to Congress."
He has denounced references to foreign and international law in SCOTUS opinions, saying on May 28, 2015 at a speech at the George Mason University School of Law, that foreign law "can never, never be relevant to the meaning of the US constitution."
Yet in 1992 he cited Italian law in an opinion he wrote himself.
The issue of whether Scalia finds something legal depends less on constitutional principles than on whether it suits his agenda in the case before him.
http://www.law360.com/articles/661690/scalia-sears-supreme-court-for-for...
http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-96.pdf
This followed his statement two years earlier, during oral arguments in Shelby vs. Holder, that whether to reenact the Voting Rights Act "is not the kind of a question you can leave to Congress."
He has denounced references to foreign and international law in SCOTUS opinions, saying on May 28, 2015 at a speech at the George Mason University School of Law, that foreign law "can never, never be relevant to the meaning of the US constitution."
Yet in 1992 he cited Italian law in an opinion he wrote himself.
The issue of whether Scalia finds something legal depends less on constitutional principles than on whether it suits his agenda in the case before him.
http://www.law360.com/articles/661690/scalia-sears-supreme-court-for-for...
http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-96.pdf
23
As a lover of the history and practices of our Constitutional law, I find Scalia fascinating. Though I generally disagree with him, I do not let that color my appreciation of his robust, even dynamic, swings at the legal rock when it is thrown within his strike zone. He's a rigorous juror with a strong sense of right and wrong, and a clarity of message. This is one way of being a great Justice, another, and I prefer it less, is; playing the stone dumb wall flower ala Justice Thomas.
There are always going to be and there always should be dissenting opinions on our high court. That they are vociferous should not offend fair-minded people. Without them analysis becomes moribund and the system suffers complacency.
His positions are his own, but America owns, and should enjoy, his intensity. I am rather sure the Left would love to have as aggressive a Justice on their side.
There are always going to be and there always should be dissenting opinions on our high court. That they are vociferous should not offend fair-minded people. Without them analysis becomes moribund and the system suffers complacency.
His positions are his own, but America owns, and should enjoy, his intensity. I am rather sure the Left would love to have as aggressive a Justice on their side.
3
Apologies, but dissenting opinions were originally not published at all. The insulting, violent, personal low brow "dissenting opinions" that Scalia publishes demeans the Supreme Court and weakens our rule of law. I would say it demeans Justice Scalia himself, but he apparently enjoys that. I pity him.
You maybe watching this as entertainment (high value, I guess), but what about the people whose real lives are being affected in real time by Scalia's warped mind ("the Devil is real!").
Thomas is arguably worse, but it makes no difference in the end. Both should go.
Thomas is arguably worse, but it makes no difference in the end. Both should go.
1
The big difference of course is that Notorious RBG is usually thinking clearly.
This is interesting stuff. Scalia seems to not understand why nations enact bills of rights (which is disconcerting given his position). The whole purpose of bills of rights is to protect minorities from, as John Stuart Mill put it, the "tyranny of the majority". For example, protecting free speech is mostly about protecting peoples' right to say things that the majority may not like. Yet Scalia seems to be saying that the majority should be able to do what it wants without any limitations. I imagine the founding fathers had quite a different view of things. Otherwise, why bother with a bill of rights at all?
If Scalia believes so strongly about this then he should resign immediately from the Supreme Court and stand for elected office.
If Scalia believes so strongly about this then he should resign immediately from the Supreme Court and stand for elected office.
12
"[Scalia] argued that there is no principled basis for distinguishing child molesters from homosexuals..."
That's absurd. Child molestation involves (1) children, and (2) molestation. Children deserve protection from sexual advances, and all deserve protection from molestation under the law. Homosexuality does not inherently involve either sexual advances upon children or molestation.
"Justice Scalia has declared that Obergefell marks the end of democracy in the United States."
That's also absurd. Democracy ended in the United States with Citizen's United. Recognizing the right of homosexuals to marry and requiring states to recognize such marriages is no threat to democracy.
I had thought of Scalia as a smart person who held beliefs I don't agree with (but that were based upon some sort of logic and reason). But now he just seems like a bonehead.
That's absurd. Child molestation involves (1) children, and (2) molestation. Children deserve protection from sexual advances, and all deserve protection from molestation under the law. Homosexuality does not inherently involve either sexual advances upon children or molestation.
"Justice Scalia has declared that Obergefell marks the end of democracy in the United States."
That's also absurd. Democracy ended in the United States with Citizen's United. Recognizing the right of homosexuals to marry and requiring states to recognize such marriages is no threat to democracy.
I had thought of Scalia as a smart person who held beliefs I don't agree with (but that were based upon some sort of logic and reason). But now he just seems like a bonehead.
24
Scalia cleverly uses legal argument to try to prove his prejudices. Comparing child molesters to gays is abhorrent and shows the measure of this man who legislates from his own views, bigoted or not.
This piece brings to the fore the issue of too many older people being on the Supreme Court Bench; also 6 Catholics and 3 subscribing to Judaism does not reflect the United States well. Serious discussions are needed about the efficacy of a Life Term, as Life Term today may mean over mid-80s plus, as Justices seem to be inclined to hang on to their chairs! Justice Scalia, now seem to talk in different tunes; has he forgotten his votes and rationales for his decisions in Bush v. Gore and the Citizen United. One hopes that the responsibility of being a SCOTUS Judge would keep one determined to maintain an Open Mind, but age and religion may naturally stand on the way! Justices should remember that --When affected, Exiting with Grace is the decent way out!
5
There are some issues where Scalia has my respect and people do not realize that his jurisprudence is fairly consistent (none are completely), and aimed at preserving a democratic system, a federal system and certain civil rights, all which I believe are good things. But, when it comes to religion, he dives into the deep end. But, when it comes to religion, they lose their minds, and Scalia particularly so. It is a fantasy that we can establish religion without favoring anyone of them or disfavoring secular people.
It is worse than a fantasy, it is borderline anarchy, that a dissident religious conscience can negate otherwise neutral non-discriminatory laws. It makes the court the arbiter of what is genuine religious belief and what not - which they did in Hobby Lobby - exactly what the first amendment was designed to protect against. It also makes the court the picker of winner and loser religions as they approve, for example, of anti-abortion sentiments but not polygamous ones.
I must say though, that I find the justices on the left to be divorced from the constitution as well, just over other matters. When it comes to religion, Scalia takes the cake.
It is worse than a fantasy, it is borderline anarchy, that a dissident religious conscience can negate otherwise neutral non-discriminatory laws. It makes the court the arbiter of what is genuine religious belief and what not - which they did in Hobby Lobby - exactly what the first amendment was designed to protect against. It also makes the court the picker of winner and loser religions as they approve, for example, of anti-abortion sentiments but not polygamous ones.
I must say though, that I find the justices on the left to be divorced from the constitution as well, just over other matters. When it comes to religion, Scalia takes the cake.
3
It's been obvious for years that Scalia's religious myopia and fixation forms the basis of his decisions on cases such as Obergefell.
Any justice who believes that the Divine Right of Kings should rule the land (and he has explicitly said this in one of his speeches) does not deserve to sit on any judicial bench.
Any justice who believes that the Divine Right of Kings should rule the land (and he has explicitly said this in one of his speeches) does not deserve to sit on any judicial bench.
19
Scalia approaches morality through the SOURCES of tradition and authority rather than through the GOALS of alleviation of suffering and the creation of fairness. In a legal system based on precedent, he has a structural ally in this regard. However, the Constitution was drafted with the goal of a just society in mind, and was manifestly not drafted by authoritarian thinkers. Happily, the culture - being better educated and more enlightened - is less and less bound to authority as it figures out what is right and what is wrong. Otherwise, what happens is a divergence of law from the rules that reduce suffering, inequality, and unfairness (i.e., true morality justified by adult thinking.) When this happens, respect for the law erodes; thus liberal ideals lead to more, not less, respect for institutions and authority.
7
Clearly, Justice Scalia prefers mob rule to rule of law. The Constitution - particularly the Bill of Rights and other important amendments (e.g., 14th) - is there to protect minority rights, since legislatures can come up with all kinds of noxious legislation in the name of "the majority".
And, when I say "minority", I don't just mean demographic minorities, but also minority points of view. Imagine a legislature banning certain kinds of speech which some majority didn't feel like hearing. Isn't it critical to our democracy that we have courts to step in and disallow such threats to basic freedoms?
Perhaps if Justice Scalia is so tormented by his association with the other justices, the decisions that are democratically arrived at, and the fact that the Court is so unrepresentative, he should do the honorable thing: resign.
And, when I say "minority", I don't just mean demographic minorities, but also minority points of view. Imagine a legislature banning certain kinds of speech which some majority didn't feel like hearing. Isn't it critical to our democracy that we have courts to step in and disallow such threats to basic freedoms?
Perhaps if Justice Scalia is so tormented by his association with the other justices, the decisions that are democratically arrived at, and the fact that the Court is so unrepresentative, he should do the honorable thing: resign.
15
Scalia's dissents reflect a juisprudence that is textualist and to a lesser degree constructionist. In his view the SCOTUS can intervene to strike down a State's law only if it is a fundamental right, and so a right that the 14th Amendment protects. For Scalia this means the right must be specified explicitly by the Constitution and must reflect a tradition of acceptance in customs and practices recognizable in US history. In his judgment gay marriage is not explicitly protected in the Constitution -- marriage understood as a union between heterosexuals is -- and in his judgment there is no long-standing acceptance of gay unions. So the States, the political branches, should decide the issue, not the SCOTUS. If you disagree, challenge him on his jurisprudence and leave off slamming him as a conservative who despises homosexuals who seek a legal sanction for their love. I think Kennedy gets it right but the level of conversation in this thread displays little understanding of the issues that the SCOTUS had to decide. He invites this with his sarcasm but we nevertheless should try to think through the rival judicial philosophies that are constitutive of the Obergefell decision.
States had been denying the religious rights of those religions that married same sex couples in their institutions, thus favoring some religions over others (first amendment) and states were refusing to recognize the marital status of same sex couples who were married in other states (full faith and credit). Scalia was clearly wrong.
You think Justice Posner doesn't understand the issues? Also any fair reading of his comments suggest he does indeed despise homosexuals or he would not use child mokesters as his rhetorical example. Just asserting he is a textualist changes nothing.
1
Justice Scalia has been tested by the Obergefell case and found lacking. The test: can he come up with a principled basis on which governments can extend certain rights to heterosexual couples but not same-sex couples? At the end of the day, he can only come up with the fact that some Americans (Justice Scalia among them) (a) find homosexuality disgusting and (b) see homosexuality as a violation of their religious beliefs. The implication clearly is that if voters in any State can elect a legislative majority that finds something disgusting and/or opposed to their personal religious views, they may legislate that practice out of existence.
I would challenge Justice Scalia and his supporters to lay out clearly the principle on which New York, say, could ban the consumption of pork products (which, presumably, vegans find gross and Jews and Muslims view as religiously prohibited). To pose the challenge is to answer it; they couldn't do it. Yet Justice Scalia is happy to send the government not into people's kitchens, but into their bedrooms - to ask about their sexual practices before extending them equal rights.
No one said it's easy to be on the Supreme Court, and to put the law above church and upbringing. Mr. Justice Scalia may resign at any time. Until then, he needs to uphold the Constitution we have - not the one he would prefer.
I would challenge Justice Scalia and his supporters to lay out clearly the principle on which New York, say, could ban the consumption of pork products (which, presumably, vegans find gross and Jews and Muslims view as religiously prohibited). To pose the challenge is to answer it; they couldn't do it. Yet Justice Scalia is happy to send the government not into people's kitchens, but into their bedrooms - to ask about their sexual practices before extending them equal rights.
No one said it's easy to be on the Supreme Court, and to put the law above church and upbringing. Mr. Justice Scalia may resign at any time. Until then, he needs to uphold the Constitution we have - not the one he would prefer.
14
Scalia is a conservative and a Catholic, and conservative Catholics have always had problems about the separation of Church and state and the rights of people other than conservative Catholics. Since the Church is the ambassador of God to this planet, and knows how God wants us to run things, the Church should be able to enforce or at least press for God's wishes.
Maybe Presidents cannot be good Catholics, if "good" is defined conservatively.
Maybe Presidents cannot be good Catholics, if "good" is defined conservatively.
5
Justice Scalia wants to impose his religious beliefs on everyone else.
Despite what the First Amendment says about freedom of religion, Scalia is willing to dredge up far fetched arguments to support his goal of imposing his religious beliefs on others.
While I find this despicable I also find despicable Scalia's statement that it is not unconstitutional to execute an INNOCENT person who has received a fair trial.
However impeaching a Justice Scalia is inappropriate.
When Jerry Ford was still in the House he tried to impeach Justice William Douglas because Douglas had married a much younger woman.
Ford said that the grounds for impeachment were whatever the House decided them to be.
While legally Ford was correct, do we want a Congress to be able to influence Court decisions by being able to impeach Justices whose decisions they disagree with.
The Senate needs to exercise greater scrutiny of Court nominees during the confirmation process.
Despite what the First Amendment says about freedom of religion, Scalia is willing to dredge up far fetched arguments to support his goal of imposing his religious beliefs on others.
While I find this despicable I also find despicable Scalia's statement that it is not unconstitutional to execute an INNOCENT person who has received a fair trial.
However impeaching a Justice Scalia is inappropriate.
When Jerry Ford was still in the House he tried to impeach Justice William Douglas because Douglas had married a much younger woman.
Ford said that the grounds for impeachment were whatever the House decided them to be.
While legally Ford was correct, do we want a Congress to be able to influence Court decisions by being able to impeach Justices whose decisions they disagree with.
The Senate needs to exercise greater scrutiny of Court nominees during the confirmation process.
2
Apart from anything else it appears that Justice Torquemada is unfamiliar with the fact that a clear majority of Americans now favor same-sex marriage. Is it too early to suggest that this Justice be carried out of the Supreme Court building and placed on display with the other Neanderthals at the American Museum of Natural History?
19
Maybe the pope could decree Antonin with an honorary Cardinal appointment
ship him off to the Vatican and that would be that. While I can't support his beliefs, I understand that a great deal of people do and this is the bittersweet truth of being a citizen of a country that bestows equal rights on all it's citizens without regard to race, color or creed. Tolerance is also a behavior that more of our citizens need to understand is the key to our progress as a country, if we're truly Christian nation it should be easy for us.
ship him off to the Vatican and that would be that. While I can't support his beliefs, I understand that a great deal of people do and this is the bittersweet truth of being a citizen of a country that bestows equal rights on all it's citizens without regard to race, color or creed. Tolerance is also a behavior that more of our citizens need to understand is the key to our progress as a country, if we're truly Christian nation it should be easy for us.
7
We are not a "truly Christian nation." That's not what our forefathers intended. And its not what's necessary in today's world where we're all of a sudden next door neighbors to every brand of Muslims, every brand of Jews, Hindus, Atheists, Agnostics, and every brand of Christians. There's as much difference and hostility between Catholics and Evangelicals and between Sunni Muslims and Shia Muslims as between Christians and Muslims in general. Through the centuries, Christians have fought and killed other Christians and still do. The same is true of Muslims. When one religion or religious sect seeks to have it practices inserted into and practiced by the government which is supported by all religions, as ours is, there will be trouble. Our Constitutional separation of church and state is a logical, unchanging doctrine that can avoid these religious wars. So far, its working in America though not perfectly.
The "truth of being a citizen of a country that bestows equal rights on all its citizens without regard to race, color or creed."
You left out "sex", and rightly so, for women, the majority of the population, are NOT Constitutionally equal.
Shipping Scalia "off to the Vatican" would be utterly appropriate.
You left out "sex", and rightly so, for women, the majority of the population, are NOT Constitutionally equal.
Shipping Scalia "off to the Vatican" would be utterly appropriate.
Article III.
Section. 1.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
"...during good Behaviour...." It is not a lifetime appointment, and Scalia and Thomas deserve to have the distinction demonstrated.
Section. 1.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
"...during good Behaviour...." It is not a lifetime appointment, and Scalia and Thomas deserve to have the distinction demonstrated.
21
As was asked of Sen. McCarthy during those dark years in the 1950's:
Have you no sense of decency?
The answer, apparently, is, No.
He uses his office to pontificate his right-wing, Roman Catholic ideology in the name of the US constitution.
Have you no sense of decency?
The answer, apparently, is, No.
He uses his office to pontificate his right-wing, Roman Catholic ideology in the name of the US constitution.
41
Many devout Catholics despise Scalia and his antediluvian dogma, including my very Catholic wife. Most American Catholics are not in lockstep with Catholic right wing extremism. They don't want a dozen kids, so they use birth control with no guilt whatsoever. Gay marriage is not offensive to most Catholics today. Just who gets to define sin, anyway. Legal abortion is far better than back alley abortion, and is up to the pregnant woman guided by her doctor, and what's wrong with that? Humans are not a species endangered by freedom of choice. But they are endangered by freedom of greed, as shown by Big Energy.
Ultimately, what did Jesus say about birth control, homosexuals or abortion? As far as I know, pretty much nothing. Religion needs some humility, and a review of history shows that all religions have much to be humble about. Scalia doesn't seem to be keeping up with current events. We are not on this planet to comply with his fascist beliefs. And when he leaves, I hope he takes Buster Keaton with him.
Ultimately, what did Jesus say about birth control, homosexuals or abortion? As far as I know, pretty much nothing. Religion needs some humility, and a review of history shows that all religions have much to be humble about. Scalia doesn't seem to be keeping up with current events. We are not on this planet to comply with his fascist beliefs. And when he leaves, I hope he takes Buster Keaton with him.
It's a shame no president ever had the guts or wisdom to put Posner on the Supreme Court.
7
Is there really any doubt that Antonin Scalia is the biggest threat to basic American principles and values?
30
Donald Trump in black robes.
11
The court's decisions are obviously inconsistent with the intent of the author's of the Constitution and that by itself makes them wrong. It is up to the legislature to amend the Constitution if they want to change it. The court's decisions play havoc with the concept of Constitutional government by making the meaning of the Constitution subject to arbitrary change without any democratic input. Changing the Constitution is supposed to be harder than changing laws, not easier. It is supposed to require a 2/3 majority of both Congress and the states. Today it just requires a few unelected dictators in black robes.
4
Lincoln said a lot of things in his several sometimes conflicting roles. To single him out on one particular topic without the context, without understanding the role he was filling at the time (political leader of a newly-forming political party, president of a divided country, candidate for the U.S. Senate, military leader of an army fighting a war against secession) is as intellectually dishonest as pulling a single bible verse or two out of a hat and saying "the bible says..." Oh, wait...
14
It's ironic that the same people who want to ban Shariah Law in certain states almost certainly approve of Scaliah Law.
50
As a gay man married to the most wonderful, loving man I am disgusted by Scalia. His unabashed, virulent homophobia will be his enduring legacy. Thank you Judge Posner and Professor Segall for pushing back against this bigot.
29
Lots of controversial Supreme Court cases are undecidable on evident legal grounds. The Court is influenced by changes in public opinion, but justifications for decisions also take on a religious character, as law often does when it is pushed to give an ultimate justification for itself. The bigger and more interesting story about religion and the Supreme Court is Anthony Kennedy and the way he uses his essentially religious concept of human "dignity" to decide difficult cases.
1
The first amendment quite explicitly disallows legislation giving respect to faith based rationales.
A supremely wise nun at the conservative Catholic church ( St Bernard) I attended wanted us teens to always remember that when someone lashes out at us, they are not telling us who we are or who they are but only where they have been or where they are coming from.
The era where the old "wizened" white guys opinion was what was most important is coming to an abrupt close. It must be so very difficult to suddenly discover you and every opinion you hold so dear is history. Not even fondly recalled history but disgraceful, rude, environmentally destructive wasteful history.
As I approach retirement am so glad that (at least for the moment) none of us lives forever. Already I have seen my daughters generation shake her head as if to say "What were you thinking!"
The era where the old "wizened" white guys opinion was what was most important is coming to an abrupt close. It must be so very difficult to suddenly discover you and every opinion you hold so dear is history. Not even fondly recalled history but disgraceful, rude, environmentally destructive wasteful history.
As I approach retirement am so glad that (at least for the moment) none of us lives forever. Already I have seen my daughters generation shake her head as if to say "What were you thinking!"
15
While I don't always aggree with Judge Posner--as in the book he wrote jutifing the Supreme's decision to make Bush president in 2000--this time he hit it out of the park. Posner is always fascinating and erudite, and this is a great piece of work. Scalia, however, is just a wretched piece of work. Some people I respect said Scalia was once brilliant, but I must have missed those 15 minutes.
21
Scalia's views are jo surpirse when considering the statement he made in 2002 in opposition to doing away with the death penalty: "Few doubted the morality of the death penalty in the age that believed in the divine right of kings." In other words, the moral climate of the 17th century, when burnings at the stake were common and democracy was in its infancy, is preferable to that of today. The age when kings had absolute power and could trample on anyone, rich or poor, was a better one. This is the ill-named Justice who actually sits on our Superem Court.
22
All this from the jurist who lamented that the Lawrence decision would void statutes criminalizing masturbation. Thus offending those who find masturbation to be a grave moral wrong.
15
Justice Scalia has become the man of the Burroughs story "The Man who taught his "podex" to talk and the "podex" took over him"
1
Scalia is wrong about gay marriage but right about the Supreme Court overreaching. For example in the Citizens United case. The US does often seem like a judicial dictatorship.
12
Justice Scalia is a brilliant advocate for whatever conclusions his prejudices lead him to. As such he is greatly admired by lawyers for his ability to intellectually twist the law to fit his purpose. He would make a great wall street lawyer, by their standards, but he has no business being a judge of any kind, much less on the Supreme Court.
One of our local county judges talked about how he could no longer go out for a drink because he would be socializing with lawyers that he would have in court the next day. He said it wouldn't look right. He is not a brilliant lawyer. But he is just the disciplined and wise kind of person who we want as judges. He is, in short, the exact opposite of Scalia.
Bluntly, intelligence as defined by Harvard and Yale is overrated. Real wisdom requires a lot of things that are often lacking in the ambitious soulss whose whole lives are built around achieving social standing.
One of our local county judges talked about how he could no longer go out for a drink because he would be socializing with lawyers that he would have in court the next day. He said it wouldn't look right. He is not a brilliant lawyer. But he is just the disciplined and wise kind of person who we want as judges. He is, in short, the exact opposite of Scalia.
Bluntly, intelligence as defined by Harvard and Yale is overrated. Real wisdom requires a lot of things that are often lacking in the ambitious soulss whose whole lives are built around achieving social standing.
21
I don't believe Justice Scalia is able to keep his personal religious beliefs, which includes belief in the devil as well as the sin of homosexuality, from creeping into his decision making. He should recuse himself from all matters that come before the Court where the Roman Catholic Church has any stake in the outcome. Actually, he should just resign having already done more damage than can be fixed in my lifetime.
26
Justice Scalia will turn 80 on March 11th. It is certainly within the realm of possibility that he will either retire from the Court (or be naturally "retired") within the term of the next president.
The nomination of new justices, especially for this seat, is reason enough, for anyone with a brain, a sense of what this nation is truly supposed to stand for, and a sense of what the Framers of Constitution believed, to vote for the Democratic nominee for President- regardless of who it turns out to be- and to vote for Democratic Senators.
There is no doubt that any Republican president will model their nominees to all Federal courts on Scalia. If that happens, we might as well just put the Constitution through a shredder and be done with it.
The nomination of new justices, especially for this seat, is reason enough, for anyone with a brain, a sense of what this nation is truly supposed to stand for, and a sense of what the Framers of Constitution believed, to vote for the Democratic nominee for President- regardless of who it turns out to be- and to vote for Democratic Senators.
There is no doubt that any Republican president will model their nominees to all Federal courts on Scalia. If that happens, we might as well just put the Constitution through a shredder and be done with it.
21
I could not agree more with this op-ed (by a very distinguished member of the federal judiciary). Unfortunately, according to my loose understanding of constitutional law, it is almost irrelevant. The US Supreme Court determines the meaning of the US Constitution and all other opinions are merely opinion. Fortunately, Scalia vents most strongly when he is in the minority, and thus merely rendering a (dissenting) opinion.
2
His dissent on Obergefellv.Hodges - really was the ramblings of a crazy person filled with bile. It was an emotional document where he lashed out at his fellow justices - like a toddler having a tantrum. It's one thing to dissent, it's another to appear unhinged in the process. There really does need to be a deeper discussion on when justices become mentally incapacitated, what can be done about it.
30
The methods of the recent right wing revolution in the US are so blatantly over the line than people cannot even imagine them possible, this newspaper included.
8
It is good to have both liberals and conservatives on the Supreme Court; e.g., Justice Rehnquist was a free-thinking intellectual giant. Unfortunately, both Scalia and Thomas, however intelligent, have badly marred the court's search for wisdom.
7
Unfortunately Scalia and Thomas will stay on the Court as long as the Koch Brothers tell them to stay. They are no more than Myrmidons. Koch Brothers gave Thomas' wife 3/4 million dollars a few years ago and Justice Thomas failed to report it as he was required to do. Once he was exposed, he reported. That should have been used as grounds for impeachment, but it was overlooked.
Scalia is behaving like a child. When the Court rules the way he wants, well, everything is kopacetic. But when his colleagues rule against his Catholic ideals, society is falling apart.
It's one thing - and appropriate - to dissent from your colleagues on the Court. It's another thing entirely to declare the Court you represent to be a "committee of nine unelected lawyers" when you are in the minority. If you really feel this way, perhaps you should resign and allow your position to be filled by someone who respects our third branch of government!
I'm really tired of people who don't respect the role of government in general being life-long public servants. If you are derisive of government, and your role in in especially, you have no business taking taxpayer money as a salary. I resent paying taxes to support you!
It's one thing - and appropriate - to dissent from your colleagues on the Court. It's another thing entirely to declare the Court you represent to be a "committee of nine unelected lawyers" when you are in the minority. If you really feel this way, perhaps you should resign and allow your position to be filled by someone who respects our third branch of government!
I'm really tired of people who don't respect the role of government in general being life-long public servants. If you are derisive of government, and your role in in especially, you have no business taking taxpayer money as a salary. I resent paying taxes to support you!
24
Quoting Scalia back at him, "Get over it!"
Of course, both Scalia and Posner are examples of judges gone wild. They get so much toadying that they come to consider themselves infallible.
More consideration should be given to the best legislative solution available -- that a new Supreme Court justice be appointed every two years, and whenever there are less than 9. In any case, the 9 most junior justices not recused from the case will comprise the panel.
Of course, both Scalia and Posner are examples of judges gone wild. They get so much toadying that they come to consider themselves infallible.
More consideration should be given to the best legislative solution available -- that a new Supreme Court justice be appointed every two years, and whenever there are less than 9. In any case, the 9 most junior justices not recused from the case will comprise the panel.
1
Posner and Segall: I think that you protest too much. Scalia's thoughtful, forceful dissents have caused you concern; as well they should. His dissents are grounded in a thoughtful, rational, and ultimately irrefutable reading of the Constitution and point the way for a future Court to over throw these decisions, which is precisely what your feeble critique is attempting to preempt.
2
I don't respect people who call themselves Christians and are strong on the supposed immorality of homosexuality (about which Jesus said nothing), but weak on moral justification of initiating war (about which Jesus said a lot). They are in my opinion religious hypocrites (about which Jesus said a lot).
13
Well, can't say he isn't a good Opus Dei man. When the majority of Americans were prejudiced against Catholics & Jews, was discrimination fine & dandy because it reflected the feelings of the majority – Scalia's reasoning would say so. Or maybe it's just the Opus Dei fundamentalist talking.
7
Scalia needs to be forced out by the steady drumbeat of ridicule, and this op-ed piece does a good job at that. He thinks that the world can't live without his so-called brilliant intellect. It can and it will.
10
Yes, "religious beliefs". The great answer/reason/excuse for anything anyone doesn't like about someone else. It seems to me the Constitution protects religious beliefs but doesn't allow someone to force their personal ones on other people. I guess to Scalia, "religious beliefs" are equivalent to "civil rights". Or something.
9
Scalia is a complete hypocrite. Religion is ok in hobby lobby case. Yet native Americans were denied the right to use peyote for a ceremony thousands of years old.
15
Justice Scalia obviously cannot say many things.
What about the legalization of gay unions. In itself harmless
And welcomed by progressives.
However, take it two steps further and you see that now children can
Be adopted in a gay marriage. This is opening the state up to
Liability. What if these children when they turn 21 sue the state
For putting them in a gay union.
What about the legalization of gay unions. In itself harmless
And welcomed by progressives.
However, take it two steps further and you see that now children can
Be adopted in a gay marriage. This is opening the state up to
Liability. What if these children when they turn 21 sue the state
For putting them in a gay union.
"Waaaaaaaaaaaaaaaaaaaaaaaaa....I'm taking my ball and going home."
~A.Scalia.
~A.Scalia.
4
I wonder if Scalia consciously follows Mao, by asking to disobey the body he represents. In China, this led to the "cultural revolution".
1
Scalia thinks the preamble is "We the corporations and people..."
9
Yes, let religion govern, as long as it's the right religion. What does Scalia think of sharia law? Who would he side with between a Roman Catholic, which is his heritage, and a Lutheran?
He's a bigoted, cloistered, probably closeted fool playing for FOX plaudits.
He's a bigoted, cloistered, probably closeted fool playing for FOX plaudits.
23
Maybe he should resign. And take Clarence Thomas with him.
16
Justice Scalia's statements and decisions are shocking and permit other people's religious views can be forced on Americans. Basic civics classes suggest that is opposite all founding principles. He is outside social context and does not understand historic trends or the actual feelings of Americans. It is dangerous for the Supreme Court to be so out of step with American citizens and to be so partisan and theocratic in its judgements. Justice Scalia is associated with every terrible decision from the appointment of Bush as president to the Citizens United, McCutcheon, Hobby Lobby, the evisceration of the Voting Rights Act, and others that will go in history books as a regressive loss of rights for Americans. He is one of the five Taliban who is always against women's rights. He perversely called the Voting Rights Act for which people died a "perpetuation of racial entitlement". Within hours of the Supreme Court gutting the Voting Rights Act, Red States enacted sweeping voter suppression laws.
Hillary Clinton (or the other Democratic candidates) would appoint justices who would uphold the rights of Americans and not make them disappear. It is time for the black robed clergy like Scalia to join the dinosaurs and not continue to harm American citizens.
Hillary Clinton (or the other Democratic candidates) would appoint justices who would uphold the rights of Americans and not make them disappear. It is time for the black robed clergy like Scalia to join the dinosaurs and not continue to harm American citizens.
15
It is clear to anyone with the slightest familiarity with the Constitution that one of its central purposes is to protect individuals against the tyranny of the majority that can be found in legislation. By his peculiar "logic," free speech, if it offend the majority would be banned.
Although the Justices are not elected directly, they are appointed by an elected president and confirmed by an elected Senate. Moreover, by not having to face the electorate periodically, the ebbs and flows of popular sentiment need not affect their judgement, as is the case with federal judges at every level.
One wonders why Scalia continues on a Court that he believes to be so lacking in democratic legitimacy. It would be a blessing to the nation if he would just resign, and perhaps enter into elected politics.
Although the Justices are not elected directly, they are appointed by an elected president and confirmed by an elected Senate. Moreover, by not having to face the electorate periodically, the ebbs and flows of popular sentiment need not affect their judgement, as is the case with federal judges at every level.
One wonders why Scalia continues on a Court that he believes to be so lacking in democratic legitimacy. It would be a blessing to the nation if he would just resign, and perhaps enter into elected politics.
8
Justice Scalia, why don't you run for president? You would fit in perfectly with the current occupants of the clown car, while giving late-night comedians a gift beyond their wildest imaginings. You can resign your seat on the bench that obviously causes you constant agita, plus doing the country a major favor. C'mon, Tony, do you feel lucky?
8
The man's hatred of gays is palpable, with his illustration of the supposed perils in his mind of homosexuality by reference to child molestation. How is this different than having someone on the Court who hates other minorities, such as Jews or blacks? Constitutional scholar: you could say champion marathoner and be just as accurate.
11
And many of us don't want men, straight or gay, near our children or other vulnerable members of society. The majority of rape, molestation, etc. of vulnerable populations are men so I find it strange that he finds homosexuals destructive when the reality is that male violence is ruining this world daily.... not homosexuals.
8
Justice Scalia is a bald-faced bigot. His presence on the SCt bench degrades the Court, the Constitution and every single citizen that that document is suppposed to protect. I look forward to a day when he is no longer a justice and just another guy in a duck blind.
10
Antonin Scalia is a gift from Ronald Reagan that just keeps on giving.
Voting has a lot of consequences...just as not exercising that right.
Voting has a lot of consequences...just as not exercising that right.
11
The thought that the Court's decision-making processes should include consideration of public sentiment is an intriguing one. If that were firmly adopted as policy, I would assume that there should be electoral referenda to clearly establish what those sentiments are. And it would be problematic if less than 50% of the voting public actually cast ballots to make their preferences known. I would expect that many of the Court's prior, razor-thin decisions in support of the wealthy, including funding of political campaigns, corporate rights, and so forth, would be overturned. These and other considerations reveal the vacuity and pure contrariness of Mr. Scalia's rogue behavior. For our times, he is a good exemplar of the privileged, patrician group that so effectively rule through such as him.
7
One can marry without reference to any religion - but you must do the paperwork. It is (within Justice Scalia's scope) a legal contract providing for distinct handling of tax, inheritance, finance etc - provided so as to facilitate a life spent together. I know one couple who married for health coverage. Nothing in the Constitution gives the government the right to discriminate on the grounds of gender for access to that contract. By convention it has been so limited - but by the Constitution it cannot.
7
Thomas Jefferson had it right when he said the entire constitution should be reviewed every 20 years -- once a generation -- to weed out parts of the document that no longer make sense for the country. If we heeded this founding father's advice we would not have the 2nd amendment we have today and Scalia would not be able to cite a centuries old document in his opinions.
9
Apparently Justice Scalia views the constitution much like the bible, every clause is ripe for bending to a particular agenda.
9
It used to be that conservatives railed against activist judges. Now that they are in control of the most activist Supreme Court in many decades, they don't seem to mind it.
Unfortunately, the vast majority of Americans do not understand the tenuous legitimate role of judicial review in a republic. Instead of wanting the Supreme Court to adhere to long-standing though evolving Constitutional jurisprudence, they want the Court to rule their way, in effect advocating it as an unelected, lifetime tenured, supra-legislative body. That is, until the Court rules against their wishes. Then they complain, Left and Right alike.
Perhaps if Civics was again taught in our schools, perhaps if an American people educated in Constitutional jurisprudence insisted on it, we might be able to get Justices on the Supreme Court who did not view their role as the political saviors of an ignorant electorate but, rather, as the Founders of our nation intended, judges and interpreters of what is, not what they wish were.
Unfortunately, the vast majority of Americans do not understand the tenuous legitimate role of judicial review in a republic. Instead of wanting the Supreme Court to adhere to long-standing though evolving Constitutional jurisprudence, they want the Court to rule their way, in effect advocating it as an unelected, lifetime tenured, supra-legislative body. That is, until the Court rules against their wishes. Then they complain, Left and Right alike.
Perhaps if Civics was again taught in our schools, perhaps if an American people educated in Constitutional jurisprudence insisted on it, we might be able to get Justices on the Supreme Court who did not view their role as the political saviors of an ignorant electorate but, rather, as the Founders of our nation intended, judges and interpreters of what is, not what they wish were.
4
I still laugh when I think of a speech Scalia made here in Portland several years ago, sometime after 2000, in which he asserted that the Equal Protection Clause does not apply to elections. Of course he joined the majority decision in Bush v. Gore, which held that Florida violated the Equal Protection Clause in the conduct of its election recount. As Posner and Segall point out, Scalia is quite ready to impose judicial will to strike down statutes and other state action that he doesn't like. His photo should appear next to "hypocrite" in Webster's.
16
And Scalia is on the Supreme Court of the Greatest SECULAR Democracy on this Planet! Where is , "The Great" in this Democracy?
3
I wonder whether Justice Scalia's razor sharp legal brain is still as razor sharp as it used to be.
Scalia's arguments are moral, not legal, and Scalia is well aware of the difference. And Scalia is also aware that the Court cannot discriminate based on moral choices, but must make decisions based on legal arguments. That people are uncomfortable with another person's choices is just not relevant.
As for the foo-foo argument about homosexuals and pedophiles, regardless of Scalia's own moral yardstick which conflates them, even the dullest blade knows that there is a significant difference between consensual adult relationships of any nature, and relationships with children. That ain't just a moral argument, it is a well established legal one, too.
Scalia's arguments are moral, not legal, and Scalia is well aware of the difference. And Scalia is also aware that the Court cannot discriminate based on moral choices, but must make decisions based on legal arguments. That people are uncomfortable with another person's choices is just not relevant.
As for the foo-foo argument about homosexuals and pedophiles, regardless of Scalia's own moral yardstick which conflates them, even the dullest blade knows that there is a significant difference between consensual adult relationships of any nature, and relationships with children. That ain't just a moral argument, it is a well established legal one, too.
8
This is a gross, mendacious distortion of Scalia's speeches, the core of which was to argue that Lawrence and Obergefell are not grounded in the Constitution at all, not that religious majorities can override the Constitution. The deceit here is willful.
4
Lawrence and Obergefell is clearly grounded in the constitution. It's gross and mendacious Scalia did not admit it.
1
Ha, no and wrong, M. The constitution protects the rights of ALL, that's the whole point. That's its genius. If you read it clearly, ALL of it, it is IMPOSSIBLE to deny rights of privacy and marriage.
As a long time advocate of "original intent," perhaps Justice Scalia should be more ready to accept those parts of the Constitution and its case law that disagree with his personal prejudices. The Constitution did not create a democracy -- the word doesn't even appear in the document. It created a mixed government of separate branches with checks and balances.
The role of the court as final interpreter of the document's meaning (Marbury vs Madison) ultimately means the court has a duty to protect minorities from majoritarian misrule which violates their constitutional rights. The first amendment against establishment of religion means no government official can act under law based on personal religious beliefs to deny citizens their due. The founders expected interpretation of the law and the constitution to adapt to the challenges of future times, even as they put some limits on this interpretation. All this isn't hard to understand once such personal prejudices are set aside.
If a justice such as Scalia cannot fulfill his oath to the constitution in good faith and without personal prejudice he should resign his office.
The role of the court as final interpreter of the document's meaning (Marbury vs Madison) ultimately means the court has a duty to protect minorities from majoritarian misrule which violates their constitutional rights. The first amendment against establishment of religion means no government official can act under law based on personal religious beliefs to deny citizens their due. The founders expected interpretation of the law and the constitution to adapt to the challenges of future times, even as they put some limits on this interpretation. All this isn't hard to understand once such personal prejudices are set aside.
If a justice such as Scalia cannot fulfill his oath to the constitution in good faith and without personal prejudice he should resign his office.
9
Both Scalia and Cruz are lauded as brilliant. They would be the first to agree. But both have aggressive and arrogant personalities and despise the professions and positions they inhabit-law and government.
11
Justice Scalia has fallen victim to Ipsi Dixit, lawyer talk meaning something is true soley because I say it is, which his fellow ultra conservatives have also fallen victim to as well as a case of I Know Betterism, which allows a judge or politician or a politician with a judical office to change his or her views to flip flop depening on which ever position brings about the result he or she favors at he moment. The only unwavering view is that I always know better.
Have you noticed that conservatives are always right when the majority believes that they are always wrong and they never admit to changing their views and they deny their past views until the video tape from the archives show up or previous case language is quoted. They are not bound by science, economics or history or the rules of civility.
No matter what the facts and how they must contort their views they are always on the side of wealth and authoritarianism and there is always some sneaky agenda from their sworn enemies, working people, gays, blacks, immigrants, women or anyone who is not a registered Republican or likey to vote for them, while they have plans for freedom and small government, which turns out to be in favor of a ruling class, limited voting rights, deregulation of business and corporate power over in individual rights. President Trump will be the Executive branch of Justice Scalia. They are well matched, except that Trump is richer-I think.
Have you noticed that conservatives are always right when the majority believes that they are always wrong and they never admit to changing their views and they deny their past views until the video tape from the archives show up or previous case language is quoted. They are not bound by science, economics or history or the rules of civility.
No matter what the facts and how they must contort their views they are always on the side of wealth and authoritarianism and there is always some sneaky agenda from their sworn enemies, working people, gays, blacks, immigrants, women or anyone who is not a registered Republican or likey to vote for them, while they have plans for freedom and small government, which turns out to be in favor of a ruling class, limited voting rights, deregulation of business and corporate power over in individual rights. President Trump will be the Executive branch of Justice Scalia. They are well matched, except that Trump is richer-I think.
11
I encourage everyone to actually read what Justice Scalia wrote instead of relying on the distorted portrayal of him here. His main point was that the Supreme Court should not carry so much power, and that it does not fairly represent the US population:
"This Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination...
"The Judiciary... has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States...
With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence."
http://time.com/3937626/gay-marriage-antonin-scalia/
Justice Scalia places the power to the legislature, which is how our Constitution is supposed to work. I guess Richard Posner and Eric Segall like an all-powerful Court when it rules their way, and they hate when someone like Scalia stands up to them.
"This Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination...
"The Judiciary... has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States...
With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence."
http://time.com/3937626/gay-marriage-antonin-scalia/
Justice Scalia places the power to the legislature, which is how our Constitution is supposed to work. I guess Richard Posner and Eric Segall like an all-powerful Court when it rules their way, and they hate when someone like Scalia stands up to them.
6
That rationale is also partisan and ideological. He is safe to advocate that position because it will be over a decade before the GOP can conceivably lose the House.
If Democrats controlled Congress and there was a GOP President, somehow he would find that empowering the Executive was the One True Intention of the founding fathers.
His only consistency is that of being an ideological hypocrite.
If Democrats controlled Congress and there was a GOP President, somehow he would find that empowering the Executive was the One True Intention of the founding fathers.
His only consistency is that of being an ideological hypocrite.
"Scalia places the power to the legislature"
Except, of course, when the actions of the legislature displease him.
Except, of course, when the actions of the legislature displease him.
Justice Scalia had no problem overriding the right of the state of Florida in deciding the 2000 presidential election, for example. The guy is a hypocrite and no lipstick can hide that fact.
1
Justice Scalia is the Supreme Court Justice liberals love to hate and, apparently, even the libertarian-esq Judge Posner has some things to say about him, too!
But Scalia is less influential and (for liberals) less dangerous than Chief Justice Roberts. The Chief Justice, because of the way he has voted on a few cases, has been seen as something of a moderate. However, I don't think that is correct.
Justice Scalia writes many scathing, and recently, outrageous dissents that calls into question his judicial bearing. But if you are writing dissenting opinions, you are on the losing side. A Justice who writes a lot of dissenting opinions is a Justice who is not deciding the outcome. Often, by compromising with the other side like Roberts, a Justice can use that to influence the scope of the decision and the legal doctrines that are made.
I think NYT's Adam Liptak had it right. To paraphrase him, the Chief Justice is the great conservative strategist on the court. Unlike Scalia, Roberts is much less interested in blasting his colleagues over disagreement on a particular case than shaping the court into an (even) more conservative-friendly institution over the course of the next couple of decades.
But Scalia is less influential and (for liberals) less dangerous than Chief Justice Roberts. The Chief Justice, because of the way he has voted on a few cases, has been seen as something of a moderate. However, I don't think that is correct.
Justice Scalia writes many scathing, and recently, outrageous dissents that calls into question his judicial bearing. But if you are writing dissenting opinions, you are on the losing side. A Justice who writes a lot of dissenting opinions is a Justice who is not deciding the outcome. Often, by compromising with the other side like Roberts, a Justice can use that to influence the scope of the decision and the legal doctrines that are made.
I think NYT's Adam Liptak had it right. To paraphrase him, the Chief Justice is the great conservative strategist on the court. Unlike Scalia, Roberts is much less interested in blasting his colleagues over disagreement on a particular case than shaping the court into an (even) more conservative-friendly institution over the course of the next couple of decades.
10
Well he better get really good at that, because he's got at most 7 years until there is no longer a conservative majority on the court.
Let's get this straight. Among the more obvious and egregious "product(s) ... of a law-profession culture" are: 1. today's Supreme Court; 2. "originalism;" and 3. Justice Scalia.
6
If Mr. Scalia truly believes that the fate of our nation should not be determined by "nine unelected lawyers", he's more than welcome to remove himself from the problem by resigning.
11
But doesn't he feel that way only when he's in the minority?
As a law student, Justice Scalia's opinions are always fun to read. He really does have a knack for adding entertainment value, even when dissenting on cases concerning the most mundane procedural doctrines. I honestly expected more from Justice Scalia in his dissent from the Obergefell majority opinion. As Judge Posner and Professor Segal suggest, it really is difficult to reconcile the ideals espoused in Justice Scalia's opinions concerning gay marriage, with his other opinions addressing many other issues not concerning gay marriage. His dissent in Obergefell really made me question his ability to provide a rational and objective analysis in any case, given his ill-founded attempts to undermine Kennedy's majority opinion. Gotta love a good Posner v. Scalia argument, though. It's hard to refute the fact that they both certainly have a "way with words."
73
For those of us who are not law students, but simply citizens, I could care less about the 'entertainment' value of Scalia's opinions. His opinions matter because he has the ability to materially affect the life and well-being of us all.
If you want entertainment, watch a movie, read a book, or play a game,
If you want entertainment, watch a movie, read a book, or play a game,
You need to study harder, Emmie. Scalia's decision on gay marriage is very consistent with his previous opinions. He believes that most social issues are not decided by the Constitution, but are left to the people to decide.
Except that his opinions have very direct, and often very detrimental, real-life consequences when his extremist, right-wing ideology is affirmed (i.e.: his side wins). You may appreciate his brand of snark, but as a law student, you should also be able to appreciate the extent of the detriment to our society that this dangerous, ill-tempered, retrograde hypocrite (in concert with Alito, Thomas, Roberts and frequently Kennedy) has wrought. This is not Boston Legal, Ms. Burns, this is the real deal.
Scalia: "... further, that the protection of minorities should be the responsibility of legislatures, not courts. "
Scalia is an astonishing hypocrite.
In 1978, the Indian Child Welfare Act (ICWA) was enacted by the US Congress. Among other things, this law provided for a search for Native American relatives as possible placement for Native American children who came into a state's foster care system. Does that sound so bad?
He straight forwardly read the law & ruled in favor of it's implementation in a case some years back. It preyed on his mind, so when he had the opportunity in another really straight forward ICWA case, one of the do-over cases he loves when he wants to overrule precedent, he & his co-horts eviscerated ICWA in the Baby Veronica decision.
The ruling came down the same day his co-horts eviscerated the Voting Rights Act. So, other than those of us following the case (it started in my state & I had been a child welfare worker & knew about ICWA), it received little coverage
But, clearly, ICWA was a case of our Congress seeing that great wrongs had been committed against Native American families, children and culture and wrote a law to attempt to prevent more harm.
Scalia & his co-horts care not a whit about any law any legislature enacts re: any kind of minority rights if it interferes with their libertarian agenda. In the Baby Veronica case, that's supporting the evangelical adoption industry in the buying & selling of Native American children.
Scalia is an astonishing hypocrite.
In 1978, the Indian Child Welfare Act (ICWA) was enacted by the US Congress. Among other things, this law provided for a search for Native American relatives as possible placement for Native American children who came into a state's foster care system. Does that sound so bad?
He straight forwardly read the law & ruled in favor of it's implementation in a case some years back. It preyed on his mind, so when he had the opportunity in another really straight forward ICWA case, one of the do-over cases he loves when he wants to overrule precedent, he & his co-horts eviscerated ICWA in the Baby Veronica decision.
The ruling came down the same day his co-horts eviscerated the Voting Rights Act. So, other than those of us following the case (it started in my state & I had been a child welfare worker & knew about ICWA), it received little coverage
But, clearly, ICWA was a case of our Congress seeing that great wrongs had been committed against Native American families, children and culture and wrote a law to attempt to prevent more harm.
Scalia & his co-horts care not a whit about any law any legislature enacts re: any kind of minority rights if it interferes with their libertarian agenda. In the Baby Veronica case, that's supporting the evangelical adoption industry in the buying & selling of Native American children.
7
“a system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
Excuse me. but hasn't the Supreme Court consisted of unelected lawyers since the late 18th century? And haven't the People always been subordinate to this same Supreme Court? Scalia is actually saying that the USA has never been a democracy. Doesn't his saying so amount to a form of political activism? Are judges in the USA allowed to be politically active?
Excuse me. but hasn't the Supreme Court consisted of unelected lawyers since the late 18th century? And haven't the People always been subordinate to this same Supreme Court? Scalia is actually saying that the USA has never been a democracy. Doesn't his saying so amount to a form of political activism? Are judges in the USA allowed to be politically active?
2
Feeling as he does about the court, I don't see how Scalia can consider it morally acceptable to continue serving as a justice. He needs to step down.
3
Give George W. Bush credit for not naming Scalia chief justice. Scalia's views and temperament were extreme even for Bush.
2
Um, was probable just a bumbling oversight more than anything else.
They all cry crocodile tears for judicial restraint and the virtues of the democratic process when they're in the dissent. Just remember that he signed on to both Citizens United and the Obamacare dissents. Where was the respect for Congress then?
Hypocrite.
Hypocrite.
7
Typical Republican zealot - the law is sacred when it agrees with me; when it does not, it should be ignored.
Flexible morality that favors white, middle class men only.
Too bad about women, blacks, gays, the environment etc. as his view of the Constitution is that they have no rights.
Flexible morality that favors white, middle class men only.
Too bad about women, blacks, gays, the environment etc. as his view of the Constitution is that they have no rights.
7
Recent comments by some SC justices have finally removed the once prevalent pretense of the judicial impartiality.
As they campaign for national office, political hopefuls now openly and brazenly announce the preferred ideological leanings of future appointees to the bench.
If Scalia were not such an invested ideologue himself, his attempts to re-examine the role of the vis a vis the legislative branch would carry more gravitas. As it stands now, his minority opinions come across as the indignant ravings of a self-righteous but very poor loser, and having little merit.
Scalia might, however, be on more solid ground when questioning the role of the court as he laments the prospects of a democracy ultimately beholden to nine political appointees whose job description no longer includes the requirement "impartial interpreter of the law."
Ironically, it is his lack of judicial temperament that is adding to the court's bad rap.
But what if Scalia had not invoked religious beliefs as the make or break factor regarding his rejection of gay marriage?
There are many sincere people who object to the re-definition of a single word — “marriage” — and would happily grant gay couples all the rights a civil marriage endows. It’s new meaning word “marriage” that so upends their traditional vocabulary and makes them wince.
Scalia’s objections are exceptionally visceral and unbecoming. It is perhaps time he recuse himself for lack of judicial equilibrium.
As they campaign for national office, political hopefuls now openly and brazenly announce the preferred ideological leanings of future appointees to the bench.
If Scalia were not such an invested ideologue himself, his attempts to re-examine the role of the vis a vis the legislative branch would carry more gravitas. As it stands now, his minority opinions come across as the indignant ravings of a self-righteous but very poor loser, and having little merit.
Scalia might, however, be on more solid ground when questioning the role of the court as he laments the prospects of a democracy ultimately beholden to nine political appointees whose job description no longer includes the requirement "impartial interpreter of the law."
Ironically, it is his lack of judicial temperament that is adding to the court's bad rap.
But what if Scalia had not invoked religious beliefs as the make or break factor regarding his rejection of gay marriage?
There are many sincere people who object to the re-definition of a single word — “marriage” — and would happily grant gay couples all the rights a civil marriage endows. It’s new meaning word “marriage” that so upends their traditional vocabulary and makes them wince.
Scalia’s objections are exceptionally visceral and unbecoming. It is perhaps time he recuse himself for lack of judicial equilibrium.
3
Scalia's stands on Constitutional issues have become curiouser and curiouser.
Why on Earth 51 Republicans and 47 Democrats voted unanimously to confirm him in 1986 cannot be fathomed, other than as a strict cautionary tale about vetting nominees properly.
The lifetime appointment benefit needs modifying. States as diverse as Florida and Michigan cap their Supreme Court justice tenures at 70.
For good reason ... .
Why on Earth 51 Republicans and 47 Democrats voted unanimously to confirm him in 1986 cannot be fathomed, other than as a strict cautionary tale about vetting nominees properly.
The lifetime appointment benefit needs modifying. States as diverse as Florida and Michigan cap their Supreme Court justice tenures at 70.
For good reason ... .
4
Scalia=Cruz Let's go .Tell the truth. All of us. Stand Up as Sly once said.
3
Democrats and liberals (Repubs & conservatives never will) should insist that Scalia resign. If he is a Supreme justice & can't see the difference between love and crime--and endorses "traditional" discrimination--and does not believe that the Court can refine the law to make it more just--then what's he doing there?
6
This man is why the next presidential election is so important. We cannot let another religious zealot on the court. With aging justices it is imperative to have someone who will appoint centrist judges, not the kind who want to make America a theocracy of THEIR choosing.
13
Scalia thinks of the Constitution as a Ouija board he uses to divine original intent. It seems like the Republican concept of freedom doesn't get any further than free to go hungry.
5
Eating pork is contrary to the religious beliefs of many of our citizens. I assume Scalia would be fine with forcing us to give up pork to satisfy Muslims and orthodox Jews.
4
Scalia's "originalism" has long ago become a joke, or sadly really more of a mockery of our constitution. Every singly decision he makes (other than purely commercial decisions) can be predicted based on his political positions alone. His "interpretation" of "original intent" is not a true legal basis for his decisions, but rather a thinly veiled argument posing as justification for his pre-conceived opinion.
10
Opus Dei in action.
11
This op-ed demonstrates as well as anything the importance of electing a Democrat in November, whether Hillary or Bernie or O'Malley. ALL of the righteous GOPers, even the so-called "sane" ones, will put another religious nut job on the bench.
Then you can kiss Roe v Wade (and democracy) goodbye.
Then you can kiss Roe v Wade (and democracy) goodbye.
14
As a Justice, Scalia reminds me of a comment made by a very wise spiritualist: "There's a place in God's plan for everybody... even if it's just to set a bad example."
5
Oh, the irony here is just too much. It is okay for Scalia to strike down legislation that attempts to regulate firearms or campaign finance, but it is not okay for homophobic legislation to be struck down. If Scalia thinks that the Supreme Court is so anti-democratic, why doesn't he do us all a favor and retire or resign?
9
Mr Scalia's comparison of gay people to child molesters is nothing short of disgusting. Presumably he would also find the idea of inter-racial marriage (or even "relations") just as disturbing as homosexuality. Is someone with such bigoted views really deserving of a place in the nation's highest court?
7
Scalia's scattershot approach to the constitution has no intellectual integrity, despite his claims to the contrary. He ruled against states' rights in Bush v. Gore, against voter rights in Citizens United, and has in this dissent voted against a separation of Church and State. His decisions are a mishmash of intellectual balderdash and public shaming, with a dash of Catholic dogma thrown in for good measure.
Scalia has been touted as the intellectual on the Court, but his intellect more often reflects bigoted rationalization more than sound judicial reasoning.
Scalia has been touted as the intellectual on the Court, but his intellect more often reflects bigoted rationalization more than sound judicial reasoning.
14
This is a great argument for why we should amend the constitution to have term limits for the Supreme Court. A recent, brilliant proposal is that each justice serves an 18-year term, and those terms expire on a rotating basis every 2 years. Thus, each president will be appointing 2 justices during a term. This prevents packing the court for the life of the justice by either party, and promotes healthy turnover. Under this system, Scalia, Kennedy, Thomas, Breyer, and Ginsburg would be overdue to step down.
6
Not worthy to judge a dog show!
6
Scalia also wrote the decision in DC v. Heller, 2008, which struck down certain firearms regulations. A lot of influence, this man, who seems determined to prove himself right it what seems to be his conviction that an unelected official can be the very worst -- least tempered with wisdom or mercy -- official in the US.
8
Clearly, Justice Scalia's outrage must logically force him to resign. To continue to participate in the evil which he now believes the Supreme Court to be is hypocrisy.
We can only hope.
We can only hope.
7
This man is why women need to vote at all time highs for the next election. I shudder to think the kind of zealot some of these republican candidates could nominate. I'm not proud to be an American any more.
9
The man styles himself a great intellect who loves the opera. Yet his judicial philosophy is extreme and out of touch and he has demonstrated time and again, in his dissents, that he has no real interest in accommodating the views of his fellow justices on the Court. This is the long-enduring result of a president who did not do right by the people when he appointed him. We need fewer great intellects and opera lovers and more individuals who are prepared to honestly uphold and protect, not offend the Constitution that the framers in their wisdom gave to us--a sacred obligation.
6
I wouldn't go that far about barring opera lovers from the SCOTUS bench. Ruth Bader Ginsburg loves opera too. She's also pretty smart, come to think of it.
Justice Scalia should resign as he is unable to fufill the oath he took when appointed to the Supreme Court: "...do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely,..."
3
Obergefell is a strange decision. Marriage is the most traditional right of the states, and gay marriage is something that both Hillary and the constitutional scholar Obama opposed in 2011. How did it so quickly become an unquestioned right that some link with the civil rights of blacks in the 1950s and 1960s. Many on the left think minority rights are fine if they agree with them, but have no legitimacy if it goes against their preferences--e.g, recently on religion..
On a historical note, many commenters are hysterical about Reagan and his appointees. Who, pray tell, appointed Kennedy who was the decisive yes vote on this? And who appointed Sandra Day O'Connor?
This too will pass. Those like Scalia, Alito, and Guiliani reacted to the years of prejudice that all Italians were Mafia. So they became extreme law and order men. They did kill the old Mafia prejudice. The next generation of Italians will be more relaxed.
Finally, it is nonsense to say Scalia is a disaster or a danger. The Court should have an extreme knee-jerk conservative or two and an extreme knee-jerk liberal or two.
The disaster now is that the last three Presidents abandoned the balanced approach of Reagan and Bush--and nearly all previous Presidents--and appointed only knee-jerk partisan ideologues. Ginzburg deserves to be on because of her role in women's rights, but the other three are little different from Scalia, Alito, and Thomas. We need two knee-jerks on each side, and 5 Kennedys.
On a historical note, many commenters are hysterical about Reagan and his appointees. Who, pray tell, appointed Kennedy who was the decisive yes vote on this? And who appointed Sandra Day O'Connor?
This too will pass. Those like Scalia, Alito, and Guiliani reacted to the years of prejudice that all Italians were Mafia. So they became extreme law and order men. They did kill the old Mafia prejudice. The next generation of Italians will be more relaxed.
Finally, it is nonsense to say Scalia is a disaster or a danger. The Court should have an extreme knee-jerk conservative or two and an extreme knee-jerk liberal or two.
The disaster now is that the last three Presidents abandoned the balanced approach of Reagan and Bush--and nearly all previous Presidents--and appointed only knee-jerk partisan ideologues. Ginzburg deserves to be on because of her role in women's rights, but the other three are little different from Scalia, Alito, and Thomas. We need two knee-jerks on each side, and 5 Kennedys.
2
The recent religion-related decisions will ultimately be reversed in some capacity, because they represent an unconstitutional encroachment on others' freedoms.
My employer recently pulled a 'Hobby Lobby' and has denied birth control to my family. Now I have to get on a special list, apart from regular health insurance, a special card specifically for birth control. This stigmatizes and injects politics and morality into my personal medical decisions.
There is a strain of legal theory working its way through conservative organs right now, using the tools and language of the Civil Rights movement to undo its gains. Hobby Lobby and Kim Davis are two prominent examples of it in the media. It will not produce lasting effects on our society.
My employer recently pulled a 'Hobby Lobby' and has denied birth control to my family. Now I have to get on a special list, apart from regular health insurance, a special card specifically for birth control. This stigmatizes and injects politics and morality into my personal medical decisions.
There is a strain of legal theory working its way through conservative organs right now, using the tools and language of the Civil Rights movement to undo its gains. Hobby Lobby and Kim Davis are two prominent examples of it in the media. It will not produce lasting effects on our society.
scalia is a scourge on the supreme court and the American people and should be impeached and removed from office. After him, thomas.
16
I really believe that Scalia and Thomas, et. al. confuse the right of gays to marry with forcing heterosexuals to do something they do not want to do. Recognizing the rights of others does not impinge on my rights as an old, white male. I just don't feel threatened. Now, guaranteeing the right to own a gun for that idiot in Colorado-different story. To my knowledge, nobody has been murdered allowing homosexuals to marry, in fact, many folks have been made much happier.
16
Scalia is essentially a fundamentalist -- both constitutionally and religiously. Even worse, he conflates the two. Interestingly, the Pope, himself, just called fundamentalism an evil.
THAT is Scalia.
THAT is Scalia.
14
Justice Scalia is a "contoversial" figure who thumbed his nose at those who questioned his Dick Cheney hunting expedition, declared that there is right to own guns based on his reading of words referring to citizen militias, voted to completely un-do Obamacare because of the requirement that the uninsured buy insurance (without which the entire plan would collapse), is blatantly anti-gay and let's this bias distort his thinking. He is said to be a great legal mind but unfortunately is obviously a misanthropic crank.
9
I hear the angel of retirement knocking on Scalia's door....
8
He will never retire. He enjoys destroying people's lives too much.
He won't retire. And Neither will Thomas or Alito.
Antonin Scalia has demonstrated repeatedly in his written decisions regarding the rights of gay citizens that he is nothing but a bully, a bilious, right-wing religious political ideologically motivated bully who holds gay citizens in contempt. He takes great pleasure in attempting to deny basic constitutional rights to gay citizens using so-called original intent to rationalize it. He throws temper tantrums every time he fails. It will be a relief to see his retire from the court. At age 79, his retirement can't come soon enough.
313
Unfortunately, I think we'll be stuck with Scalia for a long time. He obviously does not believe in the plain meaning of the words "equal protection of law" in the constitution and that those words should be used to settle disputes like marriage equality. To me, he's a sorry excuse for a Justice.
Nothing says that a person of sincere religious convictions can't pray for Scalia's speedy (and even mercifully painless) death.
Antonin Scalia has become a bitter curmudgeon. How is he, or anyone else, injured by the Supreme Court rulings that grant homosexuals the simple right to be full human beings?
As another commenter said, Scalia should have parked his religious views when he was appointed to the Court.
As another commenter said, Scalia should have parked his religious views when he was appointed to the Court.
As an Italian American it grieves me greatly to see both Scalia and Alito on the court. Talk about historical amnesia. The abuse that my parents and grandparents were exposed to by bigoted Americans, many of whom had migrated to this country themselves only a few decades earlier, and themselves experienced prejudice, has wounded my soul for all of my 68 years. To think that these two could reach such heights in our culture by reinventing the intolerance once used to plague their ancestors is enough to want me to throw up. Shame on both of them and any hyphenated American who has embraced right wing theocracy.
26
Well, at least he defers to the legislatures and the constitution; so, there'll always be a check on the damage he can do. God forbid he ever picks up the tactic of redefining laws to fit his personal tastes.
Scalia is simply a man outside his time: the eleventh century. I would also suggest that he would make the ideal Attorney-general for either Trump or Carson.
11
Scalia is judging by his religion, not the constitutioon. He claims to be an orginalist but shows surprising ignorance about our founding father's attitude toward corporations. They believed corporations should have a limited life and be created for a specific purpose. They certainly had no right to contribute to political campaigns. They were not made equivalent to citizens.
Scalia is a phony. The corporations fete him and treat him like a king and he repays them.
The 5 male catholics have been imposing their religion on the country and I oppose them.
Scalia is a phony. The corporations fete him and treat him like a king and he repays them.
The 5 male catholics have been imposing their religion on the country and I oppose them.
13
The fact that he "wants" anything indicates that he has no business serving as a justice of the Supreme Court. No justice is supposed to have an agenda. They are supposed to be impartial interpreters of the law, right?
This man has had his own agenda from day one, parroted by his subordinate, Clarence Thomas, and is a national disgrace and embarrassment to any decent citizen, Catholic or otherwise.
He should be stripped of his legal authority and removed. This is one area where the Founding Fathers got it wrong with the lifetime appointment.
This man has had his own agenda from day one, parroted by his subordinate, Clarence Thomas, and is a national disgrace and embarrassment to any decent citizen, Catholic or otherwise.
He should be stripped of his legal authority and removed. This is one area where the Founding Fathers got it wrong with the lifetime appointment.
9
He should have become a Catholic priest=theologian instead of a secular lawyer.
11
It doesn't matter how much vaunted intelligence you possess for legal reasoning if your fundamental premises and paradigms are flat-out wrong. Scalia's ultra-conservative pre-Vatican II Catholicism worldview made him perfect to work with the John Paul II/Benedict Vatican, but makes him utterly inappropriate for any responsible legal position in a non-theocratic United States. And, yes, his obsession with homosexuality is a huge red flag that Mr. Scalia has some core personal issues that have been subsumed by religiosity.
14
It's ironic that a "justice" who voted to overturn the 2000 presidential election is now complaining about judicial overreach.
17
Scalia is exhibit A when it comes to modifying the Constitution to create term limits for Supreme Court Justices. An 18-year appointment makes a lot of sense.
9
Remember, this is the same Scalia that upbraided Jessica Senior of New York Magazine for not believing in the literal devil. "You're looking at me as though I'm weird. My God! Are you so out of touch with most of America, most of which believes in the Devil? Jesus Christ believed in the Devil! It's in the Gospels! You travel in circles that are so, so removed from mainstream America that you are appalled that anybody would believe in the Devil!" I always thought judicial probity was one of the principal qualifications for a justice of the US Supreme Court. Scalia doesn't even know the meaning of the word. Thomas may, but we'll never know.
7
When the time comes, hopefully a Democratic President might replace Scalia - with Posner.
9
I was sitting here thinking the same thing as I read this piece.
It is clearer every day that Justice Scalia's positions are just hard ball right wing religious politics and the farthest thing from principled legal decisions. If things don't fit his personal religious views, then the heck with precedent, the heck with the constitution, the heck with the legislature - he will just make something up.
One thing we should take the Justice at his word about - if he thinks that nine unelected judges should not be making such decisions, he should resign.
One thing we should take the Justice at his word about - if he thinks that nine unelected judges should not be making such decisions, he should resign.
9
I have long felt that Scalia should be impeached for putting the pronouncements of his Church over the Articles of the Constitution.
And imagine if the theocracy he seems to demand wasn't HIS theocracy -- what if it was Buddhist, or Hindu. or Moslem. And has he not noticed that the "Nones" are now a significant minority of the population? Why do they have to follow the dictates of any faith to which they do not subscribe?
And imagine if the theocracy he seems to demand wasn't HIS theocracy -- what if it was Buddhist, or Hindu. or Moslem. And has he not noticed that the "Nones" are now a significant minority of the population? Why do they have to follow the dictates of any faith to which they do not subscribe?
9
The real tragedy is we're stuck with these people - regardless of how out of touch or offensive their views. We didn't elect them & we literally have no say in who sits on the bench. So much for democracy...
1
Posner and Scalia are two of the biggest big shots in the interpretation of the Constitution. Their quality of thought is widely viewed as among the best in the business. Experts who oppose one or the other still view them as among the best thinkers on the other side. Posner is sending a message here that Scalia has crossed a line and that his jurisprudence on homosexuality is not only wrong but also poorly reasoned. We are given the opportunity here to eavesdrop on a conversation between two legal giants. Intelligent readers will appreciate that and will understand that this conversation is not so much about the bottom line as it is about how you get there.
1
Scalia's quality of thought is viewed as among the best in the business? Surely you jest. Scalia has long been viewed in most legal circles as a blowhard pushing a theocratic agenda. While he occasionally comes out on the right side of a case, few outside the radical right herald his reasoning as brilliant.
He was never a Constitutional scholar, loyalst, or whatever he calls himself.
He's a religious radical wearing a black cloak.
He's a religious radical wearing a black cloak.
11
When Justice Scalia became a judge, he should have parked his bible and religion at the door. His commitment should be to ALL the people of the U.S., not just to the people who agree with his vision of our populace. Justice Scalia has attempted to inflict his religious vision of the country on the country, and for that reason alone, he should leave the bench.
321
@Jwl
Maybe we should ditch that same Bible that was used to swear people to truthful testimony as well. That Bible, which drew its authority from being something people felt held a higher level of accountability, will become the biggest relic of these battles. I am less concerned about Scalia and his beliefs, because the worldviews of many judges are equally critical to their thinking. It is more frightening that we are turning our accountability to a fungible and bullying "normal" that is neither predictable nor comprehensible.
The new America wants what it wants. And when it figures out what that is, you'd better get out of its way.
Maybe we should ditch that same Bible that was used to swear people to truthful testimony as well. That Bible, which drew its authority from being something people felt held a higher level of accountability, will become the biggest relic of these battles. I am less concerned about Scalia and his beliefs, because the worldviews of many judges are equally critical to their thinking. It is more frightening that we are turning our accountability to a fungible and bullying "normal" that is neither predictable nor comprehensible.
The new America wants what it wants. And when it figures out what that is, you'd better get out of its way.
False -- if the states want to allow gay marriage, Scalia would not vote to stop them, even if he doesn't like it. If they want to allow abortion, Scalia would not stop them, even if he doesn't like it. You can't point to a single time he has held the Constitution requires the people to follow his religious belief. He believes those are questions for the people, not policies to be imposed on them by judges.
Seems like so many people become apoplectic when they hear Scalia's name or read his opinions. I actually find him entertaining and in many ways a breath of fresh air. Oh I don't agree with his positions a lot but I can always count on being entertained by his wit and his writing.
I know he's ultra-conservative and behind what many believe is now the norm on so many social issues. But I'd rather have him sitting on the bench than 9 people who think alike.
I know he's ultra-conservative and behind what many believe is now the norm on so many social issues. But I'd rather have him sitting on the bench than 9 people who think alike.
17
Maybe a neo nazi would be refreshing to hear? What we need is justices who can read and not twist meaning from the Bill of Rights that confer personhood and moral beliefs on corporations, while denying women of medical procedures, privacy and equality while conferring citizenship on fetuses, and denying birth control to protect the imagined rights of corporations and others who would deny the sexual choices of adults by binding their actions to religiously based prohibitions which are rejected by 75% of Catholics.
Let's have diversity on the Court? No. Let's have qualified individuals who will not impose their religion, their prejudices, and their hubris on America.
Let's have diversity on the Court? No. Let's have qualified individuals who will not impose their religion, their prejudices, and their hubris on America.
If you want entertainment, go read the Onion. This man's job is deathly serious.
It sounds like you consider your need for amusement more important than his ability to effect of millions of people.
It sounds like you consider your need for amusement more important than his ability to effect of millions of people.
"Entertaining" is hardly the right evaluation criteria for a Supreme Court Justice with a lifetime tenure.
Scalia is an unprincipled, intellectually dishonest jurist who has no business being on the Court. He brings disrepute to the noble institution that was the Court. His puerile dissents make him a laughing stock among his peers in the federal judiciary.
In the fullness of time he will be viewed as one of the worst jurists to ever sit on the federal bench, much less SCOTUS.
In the fullness of time he will be viewed as one of the worst jurists to ever sit on the federal bench, much less SCOTUS.
13
"Maybe he’ll now cease voting to strike down statutes under any provision of the Constitution..."
But if Scalia went all the way with this, he wouldn't be able to continue striking down affirmative action and gun control statutes.
Scalia generally holds himself out as a strict but neutral originalist with a formally defined understanding of what the Constitution prohibits or requires. But in the case of affirmative action, the original context of the Fourteenth Amendment was NOT that the constitution was color-blind and that all race-based classifications required strict scrutiny. The Fourteenth Amendment was understood as mandating what Scalia might call "activist government" to enforce equality for discriminated groups. (cf. the recent Voting Rights Act case, Shelby County v. Holder.) In the case of gun control, Scalia opinions have effectively written the "well-regulated militia" clause out of the Second Amendment, as if its obvious historical context is irrelevant.
This is not to say that originalism is a respectable judicial philosophy. It isn't - it's a recipe for convenient conservatism, a formalistic jurisprudence frozen into centuries-old categories. But the point is, in at least some of the few instances where Scalia's methodology might not support the preferred conservative result, he abandons it. Remember that the next time he performs his now-familiar routine about being America's Last Honest and Consistent Judge.
But if Scalia went all the way with this, he wouldn't be able to continue striking down affirmative action and gun control statutes.
Scalia generally holds himself out as a strict but neutral originalist with a formally defined understanding of what the Constitution prohibits or requires. But in the case of affirmative action, the original context of the Fourteenth Amendment was NOT that the constitution was color-blind and that all race-based classifications required strict scrutiny. The Fourteenth Amendment was understood as mandating what Scalia might call "activist government" to enforce equality for discriminated groups. (cf. the recent Voting Rights Act case, Shelby County v. Holder.) In the case of gun control, Scalia opinions have effectively written the "well-regulated militia" clause out of the Second Amendment, as if its obvious historical context is irrelevant.
This is not to say that originalism is a respectable judicial philosophy. It isn't - it's a recipe for convenient conservatism, a formalistic jurisprudence frozen into centuries-old categories. But the point is, in at least some of the few instances where Scalia's methodology might not support the preferred conservative result, he abandons it. Remember that the next time he performs his now-familiar routine about being America's Last Honest and Consistent Judge.
14
Scalia calls himself a strict constructionist because it gives a sort of intellectual patina to his decisions, but it really seems to be a cover for trying to impose his social beliefs through judicial activism.
Go figure.
Go figure.
12
Majority bias against gays he raises to the level of conviction and moral principle.
Moral principle, equal rights for all, he abominates as unpopular.
The man is the antithesis of a moral man. How did he get to the Supreme Court?
Ronald Reagan. R. Law is right again: beware clownish Republicans wielding the power of Supreme Court nominations. No Republican can be trusted with any power.
Moral principle, equal rights for all, he abominates as unpopular.
The man is the antithesis of a moral man. How did he get to the Supreme Court?
Ronald Reagan. R. Law is right again: beware clownish Republicans wielding the power of Supreme Court nominations. No Republican can be trusted with any power.
9
If Justice Scalia is still upset about the decision in the Obergefell case, might I suggest he follow the advice he gave when he was confronted with the umpteenth question about Bush V Gore recently. "Get over it." I believe was his dismissive remark.
11
Scalia is a brilliant racist and bigot. I wonder if Robert Bork would have been worse or better than this guy? I can't imagine both of them on the court along with Thomas and Alito. Let's just hope Kennedy and Roberts continue to block the more crazy ideas coming before the court.
11
Not everyone can be as enlightened as the modern left, who find that the Constitution allows bans on guns, but protects abortion and same sex marriage.
2
Obviously you don't read much Constitutional jurisprudence. There are time, place and manner restrictions on free speech, with the only serious arguments being where to draw the various lines. There is no Constitutional reason why time, place and manner restrictions cannot be imposed on gun and ammunition possession. Let's turn around your accusation: Not everyone can be as enlightened as the modern right, who find that the Constitution bans obscene publications, but allows anyone to have as many guns and as much ammo as they want.
Nino Scalia is a monstrous bigot, reactionary authoritarian, and third-rate legal mind. I understand practicing lawyers have to keep appearances and so forth, but only those with deformed minds could subscribe to Originalism, a results-driven "doctrine" if ever there were one. His increasingly unhinged and arbitrary body of opinions is Exhibit A for reforming Article III. Five year terms and yearly mental examinations would be good for starters.
12
Taking Scalia's logic to its obvious conclusion, if the majority of white America believe they should have the right to turn away blacks, Hispanics, Muslims or Jews due to their religious beliefs (as many whites argued at one time not all that long ago), then any laws enforcing that discrimination should be upheld by the Supreme Court. If Scalia (and Alito, and perhaps Roberts and Kennedy), were on the Court in 1954, there would probably never have been a Brown vs. Board of Education.
11
Am I the only one who noticed this - “Richard A. Posner is a judge on the United States Court of Appeals for the Seventh Circuit” – As a federal judge himself, who is legally bound to follow the legal precedents set by the Supreme Court, did Mr. Posner cross the line here by publishing these comments on New York Times Op-Ed pages? If Mr. Posner harbors political ambitions, he can always resign from his current position in the federal count and run for a political position.
4
No, you're definitely not the only person to notice that this article is written by one of the most famous judges, legal/economic theorists, and law professors in this country.
Scalia strikes me as a very pedestrian sort of individual. A certain kind of person, once they gain power, who stops investigating or scrutinizing their own preferences and biases, and instead just starts assuming them and dictating them as settled matters.
When one is young, it is advantageous to examine yourself, order to grow, but also, to make sure one is not putting out into the world sophomoric and blithe attitudes that mark one as stunted and immature. Self-examination is part of growing up.
But Scalia thinks that time is far past for him, if it ever existed, and his position of power allows him to not run in to any troubles because of it.
This is why, in his pronouncements, there is more than a whiff of adolescent petulance. He is a boor who would be just another angry uncle at family dinners were it not for his fine robes and high-minded title.
When one is young, it is advantageous to examine yourself, order to grow, but also, to make sure one is not putting out into the world sophomoric and blithe attitudes that mark one as stunted and immature. Self-examination is part of growing up.
But Scalia thinks that time is far past for him, if it ever existed, and his position of power allows him to not run in to any troubles because of it.
This is why, in his pronouncements, there is more than a whiff of adolescent petulance. He is a boor who would be just another angry uncle at family dinners were it not for his fine robes and high-minded title.
377
Will someone please build Mr. Scalia a backward-travelling time-machine so he can go back to the middle ages and be happy ?
14
I have long said that Scalia wants to read natural law into the document. Frankly, the problem is the constitution itself. Dated, never consolidated, and based on Montesquieu's misunderstanding the the English Constitution. Unless institutions represent separate 'estates' as the French would say, separation of powers is a recipe for corruption and special dealing.
I am dismayed to see a SCOTUS member use a strawman.
In a recent speech to law students at Georgetown, he[Scalia] argued that there is no principled basis for distinguishing child molesters from homosexuals, since both are minorities and, further, that the protection of minorities should be the responsibility of legislatures, not courts. After all, he remarked sarcastically, child abusers are also a “deserving minority,” and added, “nobody loves them.”
In a recent speech to law students at Georgetown, he[Scalia] argued that there is no principled basis for distinguishing child molesters from homosexuals, since both are minorities and, further, that the protection of minorities should be the responsibility of legislatures, not courts. After all, he remarked sarcastically, child abusers are also a “deserving minority,” and added, “nobody loves them.”
6
“a system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
I hope Justice Scalia was also referring to Gore Vs Bush decision, which handed the Presidency to George Bush.
I hope Justice Scalia was also referring to Gore Vs Bush decision, which handed the Presidency to George Bush.
11
Obergefell and Dred Scott are EXACTLY the same - reading into the Constitution what never has been there. So what if one thinks one or the other to be morally right or morally wrong, morality has no place in politics. the proper way to destroy or create a legal right is by LEGISLATION, or by Constitutional Amendment.
Scalia hangs around with Dick Cheney. 'Nuff said.
13
And, worse yet, when the Supreme Court was considering a case involving Heney's company! Talk about a conflict of interest. But, of course, Scalia saw no need to recuse himself. So typical.
"Obergefell seems to obsess him."
Methinks, perhaps, he doth protest to much?
Methinks, perhaps, he doth protest to much?
6
No one has a higher opinion of Judge Posner's intellect than I do -- except for Judge Posner, It is a shame that Posner should stoop to caricaturing Justice Scalia's views. Nothing at all supports his preposterous claim that Scalia's position requires that the Supreme Court should get out of the business of enforcing the Constitution. Scalia has always been clear that the Supreme Court should invalidate legislation that conflicts with the Constitution, and he has put his votes on the Court where his mouth is.
Judge Posner knows as well as the rest of us, even on the man on the Clapham omnibus, that what Scalia objects to is the Court's dishonest practice of fabricating the Constitution in order to get the results it wants. One of the latest examples is the Court's trick of pulling a rabbit out of the hat and "discovering" a right to gay marriage in the Constitution -- something that had mysteriously escaped the notice of jurists for over 200 years.
This usurpation of the will of the majority was all the more high-handed and arrogant because it deliberately preempted the democratic process that was well on its way to near-universal recognition of gay marriage.
Posner has let his brilliance go to his head. Unless I am mistaken, his behavior on his own court an example of an overbearing patrician who believes he knows better than the rest of us.
Posner could learn from Bruce Fein's aphorism: The right thing, done the wrong way, is the wrong thing.
Judge Posner knows as well as the rest of us, even on the man on the Clapham omnibus, that what Scalia objects to is the Court's dishonest practice of fabricating the Constitution in order to get the results it wants. One of the latest examples is the Court's trick of pulling a rabbit out of the hat and "discovering" a right to gay marriage in the Constitution -- something that had mysteriously escaped the notice of jurists for over 200 years.
This usurpation of the will of the majority was all the more high-handed and arrogant because it deliberately preempted the democratic process that was well on its way to near-universal recognition of gay marriage.
Posner has let his brilliance go to his head. Unless I am mistaken, his behavior on his own court an example of an overbearing patrician who believes he knows better than the rest of us.
Posner could learn from Bruce Fein's aphorism: The right thing, done the wrong way, is the wrong thing.
1
Maybe if someone had argued for the constitutional right to gay marriage 200 years ago, the Court would have found it to exist 200 years ago. But the argument was not advanced, so you shouldn't be so surprised that the right to gay marriage was not determined to exist until now.
Clearly, Scalia always has been a conservative ideologue, but it’s curious that the authors condemn him for this while not equally condemning Ginsburg for a jurisprudence that just as clearly always has been liberal. Yet, regardless of their ideological motivations for doing so, Scalia argues for a Court that leaves more to our democratic legislatures, while Ginsburg argues for a Court that presumes to interpret popular will as well as impose some ineffable “rightness” on vacating law passed by Congress and signed by a president – in the absence of precedent, because she believes the law to be “wrong”.
Frankly, I find Scalia FAR less dangerous than Ginsburg, even though I might agree more often with the ideological positions advanced by Ginsburg. If the Court were to follow his textualist preferences, many still might be offended by the intensity of Scalia’s religious and ideological identity, but those nine unelected lawyers wouldn’t represent such a dangerous departure from democracy. Yet, if were to follow Ginsburg’s interventionist and intensely progressive preferences, legislatures would cede ALL authority to the whims of an evanescent majority of that same court of nine unelected lawyers who serve for life on good behavior.
It remains that when liberals can’t get what they want from Congress, they resort to a Court that trumps popular will. But when a majority on that court won’t give them what they want, they’re mightily disgruntled that THEIR will is not done.
Frankly, I find Scalia FAR less dangerous than Ginsburg, even though I might agree more often with the ideological positions advanced by Ginsburg. If the Court were to follow his textualist preferences, many still might be offended by the intensity of Scalia’s religious and ideological identity, but those nine unelected lawyers wouldn’t represent such a dangerous departure from democracy. Yet, if were to follow Ginsburg’s interventionist and intensely progressive preferences, legislatures would cede ALL authority to the whims of an evanescent majority of that same court of nine unelected lawyers who serve for life on good behavior.
It remains that when liberals can’t get what they want from Congress, they resort to a Court that trumps popular will. But when a majority on that court won’t give them what they want, they’re mightily disgruntled that THEIR will is not done.
23
Your assertion does not make it so.
4
Mr. Luettgen, this comment is uncharacteristically filled with pretzel-shaped logic. The subject of this editorial is Scalia, not Ginsburg - and the point of this editorial is not Scalia's political/philosophical leanings, but his inconsistency.
You may recall from Poli-Sci 101 that the purpose of the Court is to protect minorities from the tyranny of the majority. Since liberals are more often concerned with recognizing human rights that had previously been ignored, and conservatives are by definition more often interested in maintaining a status quo (or even reversing recently granted human rights protections), it stands to reason that liberals would more often be inclined to overrule laws that conflict with citizens' rights under the Constitution. Some of our most important advances in human rights during the 20th century followed this pattern.
Unfortunately, that has not been the case recently, where a much more conservative Court has been reversing previously acknowledged protections and essentially preventing any newly enacted rights. Obergefell is anomalous and certainly not typical of this Court.
It's important to remember the tongue-in-cheek definition of an activist decision: one that goes against what I want. To Scalia, that seems to be any liberal-leaning ruling. To me, it's just the opposite. But that's why we have the system we have - and I am a big fan of that system, even when people like Scalia manage to get their way.
You may recall from Poli-Sci 101 that the purpose of the Court is to protect minorities from the tyranny of the majority. Since liberals are more often concerned with recognizing human rights that had previously been ignored, and conservatives are by definition more often interested in maintaining a status quo (or even reversing recently granted human rights protections), it stands to reason that liberals would more often be inclined to overrule laws that conflict with citizens' rights under the Constitution. Some of our most important advances in human rights during the 20th century followed this pattern.
Unfortunately, that has not been the case recently, where a much more conservative Court has been reversing previously acknowledged protections and essentially preventing any newly enacted rights. Obergefell is anomalous and certainly not typical of this Court.
It's important to remember the tongue-in-cheek definition of an activist decision: one that goes against what I want. To Scalia, that seems to be any liberal-leaning ruling. To me, it's just the opposite. But that's why we have the system we have - and I am a big fan of that system, even when people like Scalia manage to get their way.
The usual nonsense from Mr Luettgen. Any so-called "interventionism" from Justice Ginsburg is aimed at making USA society fairer and more reasonable to all the citizens of the USA, particularly the 51% of the population otherwise known as females who have suffered and sitll suffer from absurd discrimination from a relatively small minority of white males.
Mr. Luettgen likes to pretend that he is the voice of the "thinking" opposition to progressive and compassion politics and policies which are advocated by the vast majority of NYTimes commenters. In fact however he is a jsut a pretender, similar to the vile David Brooks, who provides the amiable face to extreme right-wing policies that extol the saintliness of billionairehood and the saintliness of policies that aim to lower taxation of the billionairehood club to zero, because, well, because.
Mr. Luettgen likes to pretend that he is the voice of the "thinking" opposition to progressive and compassion politics and policies which are advocated by the vast majority of NYTimes commenters. In fact however he is a jsut a pretender, similar to the vile David Brooks, who provides the amiable face to extreme right-wing policies that extol the saintliness of billionairehood and the saintliness of policies that aim to lower taxation of the billionairehood club to zero, because, well, because.
My position is short and sweet. Do not tell me how to act or think. Do not require me to pray ever. Do not practice your faith in my government. I am a religious person, but keep it out of politics. How much clearer could this be. This is the U.S. Constitution. Defend it or resign.
508
Sorry, it is only the U. S. constitution if five members of an unelected supreme court agree with you. That essentially is Justice Scalia's point.
Boy, how did he get to the SCOTUS? He doesn't understand the basics. The Constitution and its amendments are necessary mainly for the minority - person with a minority opinion; practitioners of the minority religion. Those who espouse majority opinions are in no danger of having their voices silenced; those who practice the majority religion are in no danger of having their practice forbidden.
80
Abortion politics created a monster.
1
This from the judicial extremist who invented -- completely invented -- the fanciful notion that corporations have a First Amendment right to spend unlimited billions of dollars buying elections.
That is the most incredible bit of judicial activism of our time and it is rapidly converting our democracy into an oligarchy of corporations and billionaires.
First Amendment rights applying to cold-blooded, profits-at-all-cost corporations, with no right for Congress to even set limits? The Founding Fathers would have laughed at the ludicrousness of this, and then cried. Scalia has bombed American democracy.
That is the most incredible bit of judicial activism of our time and it is rapidly converting our democracy into an oligarchy of corporations and billionaires.
First Amendment rights applying to cold-blooded, profits-at-all-cost corporations, with no right for Congress to even set limits? The Founding Fathers would have laughed at the ludicrousness of this, and then cried. Scalia has bombed American democracy.
296
He also invented the "right to bear arms" for individuals after 200+ years of precedent.
No, Tb. Citizens United's decision stems from the long-held construct of companies, partnerships and corporations being individuals in the eyes of the lay.
This construct of corporate personhood has more than a century of legal underpinning...
...And it make it possible for you to sue a corporation for any damages that you believe they may have caused you.
This construct of corporate personhood has more than a century of legal underpinning...
...And it make it possible for you to sue a corporation for any damages that you believe they may have caused you.
Justice Scalia has written that many Americans do not want to associate with people who engage in homosexual acts.
Some heterosexual couples engage in the same type of sex acts that some homosexual couples do.
What is the Justice going to do.
Have each couple [heterosexual and homosexual] swear out an affidavit describing their intimate behavior.
How would Scalia enforce a law criminalizing certain type of intimate behavior.
Put cameras in peoples' bedrooms?
Some heterosexual couples engage in the same type of sex acts that some homosexual couples do.
What is the Justice going to do.
Have each couple [heterosexual and homosexual] swear out an affidavit describing their intimate behavior.
How would Scalia enforce a law criminalizing certain type of intimate behavior.
Put cameras in peoples' bedrooms?
97
The founding fathers of this country would be distressed at this bigot upholding control.
Vote, people, vote!
Vote, people, vote!
161
this obnoxious egotist has lifetime tenure. What do you mean vote?
The horror of one more Scalia like justice on the court should be sobering to the American people, but don't forget; Apathy, indifference, laziness and ignorance are powerful political forces in the US.
1
I agree. If all eligible voters were to vote, there would be no Republican in any political office.
1
Had Scalia any judicial integrity, he would have voted to strike down DOMA as a violation of the 9th amendment and states' rights, and left the legalization or illegalization of same-sex marriage to each state.
He didn't. He chose his prejudice instead.
He didn't. He chose his prejudice instead.
86
The answer is in your first sentece. His sanctimony precludes self-realization. I'd say poor Antonin, but it's truly the citizenry who suffer everytime he sets his judge's pen to paper.
1
The "Religious Freedom Restoration Act" is another steaming turd of unconstitutional respect given to faith based belief.
7
He could have done that, but he still would have been wrong. The 9th grants rights "not specifically enumerated" in the Constitution. The enumeration in this case is in the 14th Amendment.
1
That Abraham Lincoln said something doesn't make it gospel, it doesn't even make it law. It makes it the legal opinion of a wise but imperfect human, and one with an agenda (though it's an agenda that a great many agree with today.).
Lincoln was not above doing legally questionable things as president in pursuit of what he saw as the greater good.
Lincoln was not above doing legally questionable things as president in pursuit of what he saw as the greater good.
38
Scalia citing Lincoln's remark about the Dred Scott decision was inapposite. Lincoln had a valid point - that most of what was written by Taney in that case was dicta and not a binding precedent, because the essential ruling was that Dred Scott, as a slave, did not have standing to sue in court = end of case. All the rhetoric beyond that necessary to decide the case is, by law, "dicta". The holding in Obergefell was not dicta, his analogy fails.
Exactly. It's nice that Lincoln said something and all, but it doesn't make it legally binding on a court.
Scalia is not as smart as some believe.
Scalia is not as smart as some believe.
and that “saying that the Constitution requires that practice” — same-sex marriage — “which is contrary to the religious beliefs of many of our citizens, I don’t know how you can get more extreme than that.”
Scalia clearly wants those religious beliefs - his religious beliefs - to reign supreme over all the rest of us. Does he reject the idea that one can have religious beliefs that accept equality? Or does the Constitution only apply to heterosexual white males who own property?
Scalia clearly wants those religious beliefs - his religious beliefs - to reign supreme over all the rest of us. Does he reject the idea that one can have religious beliefs that accept equality? Or does the Constitution only apply to heterosexual white males who own property?
158
In spite of the oath that I think all take...that includes..."no religious test"
1
Whether he wants those beliefs to, "to reign supreme over all" is a non sequitur. A Justice is entirely entitled to their own preferences, no matter what they are. What matters is; Does he make a good legal argument? He does. You do not see it, because you think he is motivated by his beliefs and stop there. But in fact the argument that legislatures should decide minority rights is a classic, valid legal position.
I say this even as I am glad he's lost the case. To be honest, I want my belief (that gays should be free to marry) - "to reign supreme over all the rest of us."
I say this even as I am glad he's lost the case. To be honest, I want my belief (that gays should be free to marry) - "to reign supreme over all the rest of us."
1
I'm sorry--what IS his good legal argument? The Supreme Court was to decide whether the prohibition against gay marriage was legal; it decided that it was not. The Court did not "decide minority rights."
I agree entirely with the views expressed in the art. by Posner and Segall. It is one thing for a justice of the USSC to dissent from a majority's decision. It is scandalous, if not worse, that a justice claims that the decision may be/should be ignored. This direct attack upon the constitutional authority of the Court, and open invitation to citizens to defy its ruling, by a dissenting justice, call into serious question the competence of the justice to sit on the Court. I think there are grounds for impeachment here. Not that a Senate controlled by the Republicans would do it, but if conservatives don't see that the integrity of the Court is at stake, we are in very dire straits indeed.
392
Of course it is not! It's another point of view. There is plenty of legal precedence for considering that certain decisions may be ignored, and the authors cite one of the best, Lincoln's opinion of the decision in Dredd Scott. President Jackson's comments on the rights of Native Americans in Georgia is another.
Catcalls for impeachment are a sure sign of a petty totalitarian not getting his own way.
Catcalls for impeachment are a sure sign of a petty totalitarian not getting his own way.
we're in very dire straits.
6
"...but if conservatives don't see that the integrity of the Court is at stake, we are in very dire straits indeed."
Not only do the majority of conservatives agree with Scalia, but I have little doubt that they think of Scalia as the "best" Justice on the Supreme Court, the Justice that is the most productive in promoting the rightwing extremist agenda.
Yes, we're in extreme dire straits. The very people who are most vocal about protecting the Constitution are the ones posing the biggest threat to its viability.
Not only do the majority of conservatives agree with Scalia, but I have little doubt that they think of Scalia as the "best" Justice on the Supreme Court, the Justice that is the most productive in promoting the rightwing extremist agenda.
Yes, we're in extreme dire straits. The very people who are most vocal about protecting the Constitution are the ones posing the biggest threat to its viability.
7
Supreme Court decisions are NOT based on the Constitution.
A Justice decides what result he /she wants and then dredges up some rationale for that decision.
Scalia's rulings are an example.
Instead of believing that intimate behavior between consenting adults is private and none of the government's concern, Scalia believes ALL homosexual intimate behavior is immoral and the govt. has the obligation to prevent that behavior. He appears to equate child molestation with consensual adult behavior.
Would Scalia criminalize certain sex acts between consenting HETEROSEXUAL couples that are associated with homosexuals.
Of course Scalia is not the only Justice who had used pragmatism to make a decision. Many Court decisions are 5-4.The Justices are experienced lawyers.
They know what the Constitution says. There is no reason for so many split decisions.
During WWII Justice Black voted to uphold the Japanese internment said "We are at war".
That is not a constitutional argument but one based on pragmatism.
During Vietnam a young man wore a shirt that carried the message " [naughty word] the draft". Black in the minority in a 5-4 Court decision voted to uphold the conviction on obscenity grounds saying the [naughty word] was sufficiently obscene to not merit 1st amendment protection.
There are many other examples one could give.
A Justice decides what result he /she wants and then dredges up some rationale for that decision.
Scalia's rulings are an example.
Instead of believing that intimate behavior between consenting adults is private and none of the government's concern, Scalia believes ALL homosexual intimate behavior is immoral and the govt. has the obligation to prevent that behavior. He appears to equate child molestation with consensual adult behavior.
Would Scalia criminalize certain sex acts between consenting HETEROSEXUAL couples that are associated with homosexuals.
Of course Scalia is not the only Justice who had used pragmatism to make a decision. Many Court decisions are 5-4.The Justices are experienced lawyers.
They know what the Constitution says. There is no reason for so many split decisions.
During WWII Justice Black voted to uphold the Japanese internment said "We are at war".
That is not a constitutional argument but one based on pragmatism.
During Vietnam a young man wore a shirt that carried the message " [naughty word] the draft". Black in the minority in a 5-4 Court decision voted to uphold the conviction on obscenity grounds saying the [naughty word] was sufficiently obscene to not merit 1st amendment protection.
There are many other examples one could give.
72
As I usually note, the role of the Supreme Court justices is roughly the same as the role of wizards in pre-scientific times who examined the entrails of birds to divine the will of gods or of one god or whatever term was used to characterize the randomness ot life.
They are not literally examining the entrails of the so-called "founding fathers", but metaphorically they are examining the entrails of their thinking as expressed in the USA constitution. Needless to write, the "founding fathers" with the exception of Benjamin Franklin, who was a truly remarkable individual, are best characterized by the great historian, Charles Beard, who noted that they were all the mercantile, often slave-owning elite of the North American colony of Britain who decided that they did not want to share the spoils of exploitation of the native population, of imported African slaves and the vast natural resources of the colonies with the remotely located British aristocracy.
They are not literally examining the entrails of the so-called "founding fathers", but metaphorically they are examining the entrails of their thinking as expressed in the USA constitution. Needless to write, the "founding fathers" with the exception of Benjamin Franklin, who was a truly remarkable individual, are best characterized by the great historian, Charles Beard, who noted that they were all the mercantile, often slave-owning elite of the North American colony of Britain who decided that they did not want to share the spoils of exploitation of the native population, of imported African slaves and the vast natural resources of the colonies with the remotely located British aristocracy.
What Scalia needs to be made to understand is that we fought a bloody civil war to bring the spirit of The Declaration of Independence, with its promise of life, liberty, and the pursuit of happiness FOR EVERYONE to the forefront of American life. I would further point out that the vaunted Constitution that Scalia worships failed to prevent the worst catastrophe in American history – and without active judicial interpolation, would likely have led to additional armed conflict over the 150 years since Lee’s surrender at Appomattox.
The simple fact is that the Framers of the Constitution made their document fiendishly difficult to amend in any controversial area – as witnessed by the reality that the Civil War amendments were only ratified at the bayonet end of a musket - and only a Constitutional sadist would demand that modern men remain the slaves of ancients who last took breathe some two centuries ago.
The further fact is that many of these Framers were 18th Century Deists, who saw God as best understood through the study of nature and nature’s laws – and hence men who would likely be appalled by the suggestion that the often dubious wisdom of the 5th century BCE or 1st century ACE be allowed to dominate the minds of freethinking Americans in perpetuity.
If Justice Scalia feels that contemporary Constitutional interpretation has strayed too far to the left, my suggestion is that he apply for a position on the high court in Iran or Saudi Arabia.
The simple fact is that the Framers of the Constitution made their document fiendishly difficult to amend in any controversial area – as witnessed by the reality that the Civil War amendments were only ratified at the bayonet end of a musket - and only a Constitutional sadist would demand that modern men remain the slaves of ancients who last took breathe some two centuries ago.
The further fact is that many of these Framers were 18th Century Deists, who saw God as best understood through the study of nature and nature’s laws – and hence men who would likely be appalled by the suggestion that the often dubious wisdom of the 5th century BCE or 1st century ACE be allowed to dominate the minds of freethinking Americans in perpetuity.
If Justice Scalia feels that contemporary Constitutional interpretation has strayed too far to the left, my suggestion is that he apply for a position on the high court in Iran or Saudi Arabia.
527
He would be rejected in Iran. They already have a Supreme Jurist aka Supreme Leader.
1
If ever there was a case for both term limits and real checks and balances in the court he's the poster boy.
It took me most of a lifetime to realize they just, for the most part, do what they think their backers and tribe wants them to do.
In this day and age nobody should get any job for life. Ten year terms and accountability.
It took me most of a lifetime to realize they just, for the most part, do what they think their backers and tribe wants them to do.
In this day and age nobody should get any job for life. Ten year terms and accountability.
176
I see your point, Joe, but along with the "bad" justices, we also get the "good" ones who would be off the bench as well. They are seated for life, ostensibly so that they can decide cases as required by the law and not beholden to their appointing authority. I believe J. Brennan was appointned by Eisenhower. While it's tough to have an unabashed bigot on the SCOTUS, we should not change the rules of lifetime appointment just because one of them is unpalatable. And after all, he's doing alot of dissent writing these days. That's a good thing.
54
Exactly ...perfect Idea
The labyrinthine roller coaster of situational logic that is Scalia's mind is indeed wondrous, since Scalia wrote in 2013's Voting Rights Act opinion:
" That’s the — that’s the concern that those of us who — who have some questions about this statute have. It’s — it’s a concern that this is not the kind of a question you can leave to Congress. "
http://thinkprogress.org/justice/2013/02/28/1649421/why-scalias-racial-e...
yet the authors of this essay note:
" Justice Scalia has declared that Obergefell marks the end of democracy in the United States, stating in his dissent that “a system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
The logic of his (Scalia's) position is that the Supreme Court should get out of the business of enforcing the Constitution altogether, for enforcing it overrides legislation, which is the product of elected officials, and hence of democracy. "
Lining these items up with Adam Liptak's piece on the Court's in group bias:
http://www.nytimes.com/2014/05/06/us/politics/in-justices-votes-free-spe...
shows why we don't want any of the current GOP'er POTUS wannabe's in a position to nominate SCOTUS Justices.
" That’s the — that’s the concern that those of us who — who have some questions about this statute have. It’s — it’s a concern that this is not the kind of a question you can leave to Congress. "
http://thinkprogress.org/justice/2013/02/28/1649421/why-scalias-racial-e...
yet the authors of this essay note:
" Justice Scalia has declared that Obergefell marks the end of democracy in the United States, stating in his dissent that “a system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
The logic of his (Scalia's) position is that the Supreme Court should get out of the business of enforcing the Constitution altogether, for enforcing it overrides legislation, which is the product of elected officials, and hence of democracy. "
Lining these items up with Adam Liptak's piece on the Court's in group bias:
http://www.nytimes.com/2014/05/06/us/politics/in-justices-votes-free-spe...
shows why we don't want any of the current GOP'er POTUS wannabe's in a position to nominate SCOTUS Justices.
103
Remember William O. Douglas. Impeachment efforts against him failed. Hopefully a successful impeachment can be brought against Scalia, who takes his takes his orders from Opus Dei.
121
I firmly believe Thomas was a horrible pick for the Supreme Court...but Scalia, his ideological mentor, is a disaster for the Nation.
426
He is loon with a expiration date way past. Both nominated by dim witted presidents
6
Time to impeach this bigot. If we can impeach a president, surely we can impeach this justice so full of religious passion and so empty of ethics.
314
You can't but the House of Representatives and the Senate could.
2
he is a dangerous theocrat and deserves our contempt.
3
Impeaching a President, or a Supreme Court justice, is one thing: succeeding in convicting him or her at a Senate trial (requiring a 2/3 vote) is quite another (and particularly in this case, given the current partisan composition of the Senate. And note that we have never successfully impeached a President. Andrew Johnson and Bill Clinton were acquitted at trial, and Nixon resigned before an impeachment vote was taken.
I disagree with Justice Scalia's dissent in Obergefall, but can't say that it is not based on real legal principles.
In short, his opinion is certainly not that the Supreme Court does not have a role in interpreting and enforcing the constitution as the article wrongly and unfairly states (NYT, you are way better than this).
Rather, his concern is that in a democracy, the people get to decide when society has evolved in a way such that new fundamental rights are necessary and get to control that process through their elected officials amending the Constitution. We need to remember that constitutional rights limit democratic decisions, so the Court being able to create them out of thin air is, in essence, anti-democratic. (Of course, that's not a bad thing in every case).
I hate to say it but there is no clear basis in the Constitution for anti-discrimination against homosexuals. The majority tried to squeeze it into the 14th Amendment's equal protection clause and due process clause, which really was not a very convincing basis and, to be frank, did not really reflect the intent of the Amendment, except in a very, very broad reading about how it was actually intended to apply to all forms of self-identification. It was a really unconvincing majority opinion, which clearly found the just and right solution and tried to work backwards.
Scalia's whole point is that
In short, his opinion is certainly not that the Supreme Court does not have a role in interpreting and enforcing the constitution as the article wrongly and unfairly states (NYT, you are way better than this).
Rather, his concern is that in a democracy, the people get to decide when society has evolved in a way such that new fundamental rights are necessary and get to control that process through their elected officials amending the Constitution. We need to remember that constitutional rights limit democratic decisions, so the Court being able to create them out of thin air is, in essence, anti-democratic. (Of course, that's not a bad thing in every case).
I hate to say it but there is no clear basis in the Constitution for anti-discrimination against homosexuals. The majority tried to squeeze it into the 14th Amendment's equal protection clause and due process clause, which really was not a very convincing basis and, to be frank, did not really reflect the intent of the Amendment, except in a very, very broad reading about how it was actually intended to apply to all forms of self-identification. It was a really unconvincing majority opinion, which clearly found the just and right solution and tried to work backwards.
Scalia's whole point is that
11
Except that no one claims that there is basis for anti-discrimination against homosexuals, only that the 14th amendment, passed by the people, is a basis for no citizen being denied privileges and immunities granted to others. There's no basis in the Constitution for anti-discrimination protection for women in anything but voting, but could a state vote to ban women from driving?
And Scalia's "child molester" comment needs to be called out, because the truth of the matter is that we don't ban child molesters from marrying. Child molesters likely marry every day. We ban children from marrying, and we do so to protect them, not because we have moral opprobrium for child molesters.
And Scalia's "child molester" comment needs to be called out, because the truth of the matter is that we don't ban child molesters from marrying. Child molesters likely marry every day. We ban children from marrying, and we do so to protect them, not because we have moral opprobrium for child molesters.
34
Neither you nor Scalia bothers to at least struggle with the preamble. Apparently.
3
The constitution does not support discrimination against homosexuals, therefore homosexuals should have all the right of other citizens. You seem to be saying thar discrimination is ok because the constitution does not specifically say homosexuals have the same rights as all other citizens. I don't think that was a burning issue at the time it was written.
There are religions that are fine with homosexuals. The catholic church is not, therefore we should follow Scalia's religion.
There are religions that are fine with homosexuals. The catholic church is not, therefore we should follow Scalia's religion.
3
Another "gift" from Reagan. Didn't like Bork; I'll feed you something worse, if possible. Nothing beats the cynicism of the GOP.
134
I sincerely appreciate Scalia's stridency on this issue, and I hope he continues making himself heard. His bitterness changes nothing. His articulations of the losing position only clarify why he and his side lost, and will keep losing. He might as well be arguing for the Ptolemaic solar system.
363
@Empirical Conservatism
I don't believe you have met him, because he is hardly "bitter".
I think it's interesting that you believe you have a bead on the winning and losing "sides". That is the most chilling comment in your sarcastic little post, and I hope the lemmings of Liberalism are not dismayed when they run off the cliff with glee, believing they possess wisdom, only to learn they share not a single interest in common...save that of eliminating restrictions on their behavior.
I don't believe you have met him, because he is hardly "bitter".
I think it's interesting that you believe you have a bead on the winning and losing "sides". That is the most chilling comment in your sarcastic little post, and I hope the lemmings of Liberalism are not dismayed when they run off the cliff with glee, believing they possess wisdom, only to learn they share not a single interest in common...save that of eliminating restrictions on their behavior.
Scalia is unfit to serve as a justice on the Supreme Court. He should resign. His opinions are so laden with emotion he cannot serve as an independent arbiter. Feeling strongly is OK; lashing out the way he does and advocating illegal response to Supreme Court decisions borders on advocating insurrection. Perhaps he should be impeached, but with a Republican majority, that's not going to happen.
231
Scalia is the personification of the Republican effort since the Reagan administration to skew constitutional doctrine to reflect the preferences and values of movement conservatism, specifically the Federalist Society. His continued presence on the Court, together with his colleagues Clarence Thomas and Samuel Alito, presents a compelling case for the election of a Democratic president in 2016.
215
What an interesting man is this Justice Antonin Scalia!
For quite some time many have wondered about his particular preoccupation with homosexuality.
Now, we learn that he has--sarcastically, of course, we are told--described child molesters as a "deserving group."
But why, specifically, child molesters? Why choose this particular societally-disapproved group as an example when there are so many others he might have mentioned: Rapists, wife-beaters, or poisoners; terrorists, assassins, or mob hit men; peddlers of drugs to children, cannibals, or serial killers; etc., etc.?
Oh, I forgot: Mr. Scalia conflates all homosexual people with child molesters.
Hm-m-m-m.
Steven Ager, M.D., M.S., D.L.F.A.P.A., F.C.P.P.
For quite some time many have wondered about his particular preoccupation with homosexuality.
Now, we learn that he has--sarcastically, of course, we are told--described child molesters as a "deserving group."
But why, specifically, child molesters? Why choose this particular societally-disapproved group as an example when there are so many others he might have mentioned: Rapists, wife-beaters, or poisoners; terrorists, assassins, or mob hit men; peddlers of drugs to children, cannibals, or serial killers; etc., etc.?
Oh, I forgot: Mr. Scalia conflates all homosexual people with child molesters.
Hm-m-m-m.
Steven Ager, M.D., M.S., D.L.F.A.P.A., F.C.P.P.
89
You didn't read carefully enough. He equates ALL minorities with child molesters. I always wondered why he rails so much about this. Is there something in his closet we don't know about? Any psychologists or psychiatrists out there who want to offer a professional opinion?
4
Nobody can be surprised by Antonin Scalia's hatefulness, ignorance and bigotry anymore, but I am surprised that Georgetown University, which touts a "commitment to social justice" on its website, invited the Supreme Court's leading homophobe to address its law school commencement. If I had been one of the gay graduates that day listening to Scalia compare gay people to child molesters, I would have been sorely tempted to rip up my diploma and fling it in his face. It's ironic and laughable that we are constantly reminded of Scalia's great love of opera. Does he not know that some of its greatest composers -- Handel, Poulenc, Tchaikovsky, Britten -- as well as some of its greatest artists, conductors and performers, are gay?!
140
Well stated. It is time to call out how extreme Justice Scalia's opinion has become on the U.S. Constitution. As far as I know the origin of the U.S. Constitution was based on protecting individual rights and be religion neutral.
83
This man has nothing in common with the life lived by most Americans. Hysterical antiabortion harassment is "caring counsel". Homosexuals are the same as child molesters. Corporations are people, but only when they want to be. While every other judicial employee is forbidden to take outside favors, Scalia's morality is above anyone else's reproach and can therefore not be criticized for leaching off the Heritage Foundation.
His contribution to American jurisprudence has been bigoted, shameful and destructive. He needs to either resign or be impeached as quickly as possible.
His contribution to American jurisprudence has been bigoted, shameful and destructive. He needs to either resign or be impeached as quickly as possible.
343
I am a 1983 graduate of the University of Chicago Law School, where Judge Posner taught for many years (including the period I attended), and where Justice Scalia was my professor for a few courses on constitutional and administrative law. I highly respect Judge Poser's intellect and legal reasoning, which I believe considerably outweighs that of Justice Scalia (although Justice Scalia is certainly no legal lightweight). In fact, I firmly believe that our nation would have been much better served if it was Judge Posner on the Supreme Court in lieu of Justice Scalia, especially since Judge Posner has one of the most important attributes of any judge--the ability to realize when he was been mistaken and change his view on an important legal issue (see, e.g., voter identification). Justice Scalia's reactionary view of gays is truly astounding. However, although I may agree with Judge Posner's views expressed in The New York Times, I am astonished that a sitting federal judge would write such an opinion article regarding a sitting Supreme Court Justice, especially in a newspaper, even if it is an esteemed publication.
82
If Justice Scalia can opine (with hyperbole) on his fellow Supreme Court jurists, surely Judge Posner can opine (more cooly) on Justice Scalia. Canon 4 of the Code of Conduct for United States Judges specifically provides that "A judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice."
80
Your implied criticism of Judge Posner for publicly challenging Scalia's approach to the law makes good sense. On the other hand, Scalia has never hesitated to blast his own colleagues in decisions issued under the imprimatur of the Supreme Court, which would surely rank as a much more serious breach of Court ethics than an op-ed piece in any newspaper.
81
I thought the same thing, regarding an article being published by a sitting federal judge.
I do wish the authors would a publish an article regarding the wisdom of life-time Supreme Court Justice appointments.
I do wish the authors would a publish an article regarding the wisdom of life-time Supreme Court Justice appointments.
2
Justice Scalia should know that we are fighting to death against ISIS, because they are not only terrorists, they are religious zealots.
That fight is not ended here, it not about homosexuality, because it doesn't stop there, goes on and on, abortion, ten commandment, church intervention to state affairs etc.
Dear justice Scalia , This is USA, if you are not enough read our history, we will never be Iran or Saudi kingdom or any medieval Christian country.
Freedom for worshipping any religion or not at all.
That fight is not ended here, it not about homosexuality, because it doesn't stop there, goes on and on, abortion, ten commandment, church intervention to state affairs etc.
Dear justice Scalia , This is USA, if you are not enough read our history, we will never be Iran or Saudi kingdom or any medieval Christian country.
Freedom for worshipping any religion or not at all.
58
Justice Scalia may think he's a great jurist. He may think he's speaking for most Americans. He may also think that he's protecting the Constitution and sticking to its original meaning as put forth by the original signers and writer(s). He's not. He reminds me of someone who has risen far above his station in life and doesn't know what to do except scream like a toddler who can't have his way any longer. Maybe Justice Scalia needs a nap and a lesson in how to get along with others when HE doesn't like what they are saying or doing.
He may want to go back to the 1700s but until someone finds a way to build a time machine he's stuck in the same century the rest of us are living in. That means that same sex marriage is now a fact. It means that the interpretation of the constitution needs to be updated to take into account things like computers, the internet, email, spyware, privacy issues, and even gun rights. Besides, I don't recall the original writers and signers of the Constitution saying that they expected their points of view to be the only points of view. They learned and grew. Why can't Scalia do the same?
He may want to go back to the 1700s but until someone finds a way to build a time machine he's stuck in the same century the rest of us are living in. That means that same sex marriage is now a fact. It means that the interpretation of the constitution needs to be updated to take into account things like computers, the internet, email, spyware, privacy issues, and even gun rights. Besides, I don't recall the original writers and signers of the Constitution saying that they expected their points of view to be the only points of view. They learned and grew. Why can't Scalia do the same?
66
You make a strong argument for him partnering with Mr. Trump, maybe he could be the veep of rage?
5
It's hard to believe that he was taught byJesuits (Xavier HS in NYC). What would Pope Francis, S.J., think of his raging intolerance?
51
There's an old saying to the effect that students taught by Jesuits turn out either totally bad or totally good. You be the judge.
6
Xavier HS might be Jesuit, but it was at the time Scalia attended, also a military school. How does THAT square with the Catholic teachings about war and peace?
3
Justice Scalia certainly does little to bother with keeping up appearances of being an impartial jurist.
In addition to his disdain for gay rights, he also makes no secret of his desire to repeal Obamacare. Probably one of the most openly partisan SCOTUS judges in modern history. He may as well give the keynote speech at the 2016 RNC.
In addition to his disdain for gay rights, he also makes no secret of his desire to repeal Obamacare. Probably one of the most openly partisan SCOTUS judges in modern history. He may as well give the keynote speech at the 2016 RNC.
300
and nra
3
It's a foregone conclusion that a Supreme Court justice has a clear partisan agenda. Still, there's a certain decorum that's expected. Scalia rarely bothers to keep up the charade.
Scalia is living proof of Sinclair Lewis: It CAN Happen Here. "It" being fascism/theocracy/a dictatorship.
The comical aspect is the bible promotes slavery, rape, and every other kind of horror one can imagine. Christianity itself is immoral and destructive.
The comical aspect is the bible promotes slavery, rape, and every other kind of horror one can imagine. Christianity itself is immoral and destructive.
88
More like, it IS happening here. It's as if Lewis were writing today, and I say that as someone who just (re)read It Can Happen Here last month.
7
All religions are the same monster wearing different clothes. It's the perfect scam- only the boss talks to the old man in the sky, and you get a better deal when you are dead, but only if you follow the rules.
The best scam ever is the one guy who created the universe says if you make fun of him you should be killed. A guy with just a little more money than Zuckerberg, a billion, billion galaxies of his own, cares if I tell a joke and he's the punchline. No, not just cared, but I should be killed. Come on.
The best scam ever is the one guy who created the universe says if you make fun of him you should be killed. A guy with just a little more money than Zuckerberg, a billion, billion galaxies of his own, cares if I tell a joke and he's the punchline. No, not just cared, but I should be killed. Come on.
4
I don't know about the majoritarian part, but the theocracy part seems right. Since Justice Scala's strictures on gays would do ISIS proud, how about "Justice Scalia's Fascistic Theocracy".
72
His language and demeanor have escalated to such a level of vitriolic contempt and illogical rhetoric that one questions if these aren't signs of early dementia? Gays and child molesters are indistinguishable since both are minorities? Oh really? Discuss amongst yourselves 'Antonin' (not his given name—that's a minority too)!
He will not be able to accomplish his goal of converting America to an ISIS like fundamentalist theocracy, but he has enough venom to make a few damaging changes before he ex-, errr . . . retires.
He will not be able to accomplish his goal of converting America to an ISIS like fundamentalist theocracy, but he has enough venom to make a few damaging changes before he ex-, errr . . . retires.
53
OF COURSE the Constitution can “override the religious beliefs of many Americans”, Scalia does not argue to the contrary, and it’s profoundly dishonest to frame the issue that way. The question presented is whether anything in the US Constitution actually DOES speak to questions of sex, especially homosexuality, and the answer is clearly, and emphatically, “NO”. The SCOTUS, starting with Griswold, simply invented a “right to privacy”, which excludes popular majorities from imposing their sexual morality upon dissenters.
That might be great libertarian policy – although how being free from governmental opprobrium translates into a right to societal recognition of one’s relationships is not particularly clear – but one thing it is not: actually in the Constitution.
Leftists believe that a Constitution which permits such laws not worth having, so they wrote a new one, more in sync with their sexually libertarian – or libertine – views.
Scalia’s correct: by no reasonable, ACTUAL READING of the Constitution, can one arrive at any of the pro-gay “rights” decisions. The Court simply made up the law to comport with its views of desirable policy (see, e.g. Roe, another decision crafted out of leftist policy, without even a hint of actual constitutional authority.)
It's sad that Judge Posner has moved, "progressively", into the camp which elevates leftist policy goals above actually doing what a judge is paid to do: interpret the law as given to him, not as he wishes it to be.
That might be great libertarian policy – although how being free from governmental opprobrium translates into a right to societal recognition of one’s relationships is not particularly clear – but one thing it is not: actually in the Constitution.
Leftists believe that a Constitution which permits such laws not worth having, so they wrote a new one, more in sync with their sexually libertarian – or libertine – views.
Scalia’s correct: by no reasonable, ACTUAL READING of the Constitution, can one arrive at any of the pro-gay “rights” decisions. The Court simply made up the law to comport with its views of desirable policy (see, e.g. Roe, another decision crafted out of leftist policy, without even a hint of actual constitutional authority.)
It's sad that Judge Posner has moved, "progressively", into the camp which elevates leftist policy goals above actually doing what a judge is paid to do: interpret the law as given to him, not as he wishes it to be.
3
I find it rather curious that people yourself indicate everything is fine as long as the Supreme Court and the specific members of it agree with you.
32
The 14th Amendment states, "[N]or shall any State ... deny to any person within its jurisdiction the equal protection of the laws."
Nothing in these amazing, simple words suggests anything about "questions of sex, especially homosexuality," as you put it, or any "sexually libertarian – or libertine – views." These are your fantastical projections.
The words simply state that States cannot enforce laws which discriminate among classes of "persons" without valid justification. All of the arguments supporting the denial of same-sex marriage have been proven to be nothing more than historical and cultural animus, with no basis in fact.
Griswold and its progeny deal with the Due Process Clause. Your argument about the "creation" of a "right to privacy" doesn't address the clear Equal Protection Clause violations of denying same-sex marriage, on which Obergefell was based.
Nothing in these amazing, simple words suggests anything about "questions of sex, especially homosexuality," as you put it, or any "sexually libertarian – or libertine – views." These are your fantastical projections.
The words simply state that States cannot enforce laws which discriminate among classes of "persons" without valid justification. All of the arguments supporting the denial of same-sex marriage have been proven to be nothing more than historical and cultural animus, with no basis in fact.
Griswold and its progeny deal with the Due Process Clause. Your argument about the "creation" of a "right to privacy" doesn't address the clear Equal Protection Clause violations of denying same-sex marriage, on which Obergefell was based.
6
What part of the 14th Amendment do you not understand? You cannot create classes of citizens, which then receive benefits that others do not. Restricting marriage to heterosexuals does exactly this. Correcting the injustice is properly interpreting and applying the Constitution, not some "leftist wish."
Scalia is 100% wrong when he conflates the Court's decisions on consensual homosexual acts, marriage equality, etc., with approving of such acts. The Court should be disinterested in such matters; what they are doing is saying that equality under the Constitution is what all Americans deserve, regardless of sexual orientation (or other demography.)
Scalia is 100% wrong when he conflates the Court's decisions on consensual homosexual acts, marriage equality, etc., with approving of such acts. The Court should be disinterested in such matters; what they are doing is saying that equality under the Constitution is what all Americans deserve, regardless of sexual orientation (or other demography.)
8
Scalia makes the case against lifetime appointment every time he opens his mouth
65
A Supreme Court Justice who thinks it is his business what 2 consenting gay adults do because hating on them retains " the moral opprobrium" of bigots???that is what he wants? He is insane. Morally insane.
63
To use Scalia's rationale, slaves would have remained so and schools segregated until the southern states eliminated the Jim Crow laws. Were it not for the Supreme Court recognizing the injustice to minorities, Alabama Governor George Wallace would have kept that school door shut. Time to retire Justice.
39
Thank you for so deftly exposing Scalia's ideology which has abetted the remaking of the Republican party. He represents the culmination of the Southern Strategy begun by Nixon and solidified by Reagan.
We can all thank Scalia and his ilk for giving us the gift of Donald Trump as the current leader of the Republicans.
We can all thank Scalia and his ilk for giving us the gift of Donald Trump as the current leader of the Republicans.
34
Let's also give him a big thanks for Ted Cruz.. whose ideologies are in sync with Scalia's to a T.
5
Scalia longs for the days were all minorities knew their place. He is a tired old crank white man that has lost his influence and lashing out at gays. His list of targets will never finish, he will always find a group to blame things on. While most Justices embrace practicality after reaching the supreme court, Scalia has found narcissist anger. His contribution to our Country will be considered negligible.
47
NEGATIVE, not negligible.
Scalia wants to go back to the 50's, but if he were to go 40 to 50 years before that, Italian immigrants weren't looked on favorably, either.
6
Why bother having a Supreme Court which used to interpret the law or to uphold the law. If we are a nation that believes in the rule of law we must uphold the law even if we don't personally agree with it. Being a Supreme Court Judge isn't about injecting your own personal belief system into the mix. When he put on his robes he must check his personal beliefs at the door.
19
But Scalia doesn't 'check his beliefs at the door'.
5
That's the exact argument Scalia is making against gay marriage. Just because you want gay marriage doesn't mean the Constitution requires it or that you can order it because you're a judge. If any state wanted to legalize gay marriage, Scalia would find that totally Constitutional.
Bravo!
But reading this,might I make a suggestion to one of the liberal Supreme Court justices? How about a trade, Obergefell for Citizens United?
Consider, even if the Obergefell decision were to be overturned, most states would allow gay marriage rights immediately, and the rest would follow soon enough. But to overturn Citizens United would require a constitutional amendment, an extremely difficult thing even in the best of times.
So how about it Ginsburg, Sotomayor, whoever? Give the man what he wants and the American people what they REALLY want (after all, didn't Scalia rant about nine unelected judges thwarting the will of the American people?). Sounds like a good deal to me.
But reading this,might I make a suggestion to one of the liberal Supreme Court justices? How about a trade, Obergefell for Citizens United?
Consider, even if the Obergefell decision were to be overturned, most states would allow gay marriage rights immediately, and the rest would follow soon enough. But to overturn Citizens United would require a constitutional amendment, an extremely difficult thing even in the best of times.
So how about it Ginsburg, Sotomayor, whoever? Give the man what he wants and the American people what they REALLY want (after all, didn't Scalia rant about nine unelected judges thwarting the will of the American people?). Sounds like a good deal to me.
6
I realize (hope) you are being facetious. There is no need to abridge the rights of a minority group to get rid of Citizens United.
It's not just Scalia, however, it's all of the five conservatives on the current Supreme Court bench. For instance, check out Salazar v. Buono, decided five years ago, when Justice Anthony Kennedy wrote for the majority that a cross is a Christian symbol that doesn't send a Christian message, allowing a cross to remain on public land. These serious, far-fetched incursions upon the 1st Amendment by the Supreme Court majority means that one day we'll be a theocracy that only tolerates minorities. The history of that kind of tolerance is that it wanes, and then disappears, yielding self-righteous intolerance and unimaginable brutality.
19
It used to be that conservatives railed against activist judges. Now that they are in control of the most activist Supreme Court in many decades, they don't seem to mind it.
Unfortunately, the vast majority of Americans do not understand the tenuous legitimate role of judicial review in a republic. Instead of wanting the Supreme Court to adhere to long-standing though evolving Constitutional jurisprudence, they want the Court to rule their way, in effect advocating it as an unelected, lifetime tenured, supra-legislative body. That is, until the Court rules against their wishes. Then they complain, Left and Right alike.
Perhaps if Civics was again taught in our schools, perhaps if an American people educated in Constitutional jurisprudence insisted on it, we might be able to get Justices on the Supreme Court who did not view their role as the political saviors of an ignorant electorate but, rather, as the Founders of our nation intended, judges and interpreters of what is, not what they wish were.
Unfortunately, the vast majority of Americans do not understand the tenuous legitimate role of judicial review in a republic. Instead of wanting the Supreme Court to adhere to long-standing though evolving Constitutional jurisprudence, they want the Court to rule their way, in effect advocating it as an unelected, lifetime tenured, supra-legislative body. That is, until the Court rules against their wishes. Then they complain, Left and Right alike.
Perhaps if Civics was again taught in our schools, perhaps if an American people educated in Constitutional jurisprudence insisted on it, we might be able to get Justices on the Supreme Court who did not view their role as the political saviors of an ignorant electorate but, rather, as the Founders of our nation intended, judges and interpreters of what is, not what they wish were.
14
Scalia is a brilliant manipulator of the Constitution to support his reactionary and ossified sociopolitical agenda. It's a shame that a mind so brilliant is so closed. Begone.
25
It has long been a convention to describe Scalia as being "brilliant".
When was the last time that he has actually exhibited any reasoning that can be described as "brilliant"?
As far as I have been able to tell, over the past 15 or more years (possibly many more) he has been politically consistent in his views, but intellectually erratic, contradictory, incoherent - relying on fallacies that would get one dropped from a high school debating team.
Isn't it time to admit the truth? That he was "once brilliant"?
When was the last time that he has actually exhibited any reasoning that can be described as "brilliant"?
As far as I have been able to tell, over the past 15 or more years (possibly many more) he has been politically consistent in his views, but intellectually erratic, contradictory, incoherent - relying on fallacies that would get one dropped from a high school debating team.
Isn't it time to admit the truth? That he was "once brilliant"?
7
Many millions of us mere mortals have been infuriated for a very long time at the hypocrisy and gall of this unreasonable, arrogant, dangerous man. Good to see that sitting jurists are finally coming to the party on that one.
37
Maybe Scalia has recognized something about the modern political process.
Much of modern equal protection jurisprudence relies on the liberal intuition described in the famous Carolene Products footnote 4 which said that legislation aimed at "discrete and insular minorities" which lacked the normal protections of the political process would be one exception to the presumption of constitutionality, justifying a heightened standard of judicial review.
However, one person's discrete and insular minority is another person's special interest group with outsize influence. Can it truly be said that minority groups in the U.S. lack access to the political process? To the contrary, many has disproportionate influence as discrete voting blocs. You could even call the entire Democratic Party an ad hoc coalition of minority interest groups. See also the culture of political correctness--you can't even debate certain topics concerning minority rights without fear of a vicious economic backlash.
So if the Carolene Products rationale is uprooted based on the state of modern politics, maybe we need to do away with strict scrutiny review.
Much of modern equal protection jurisprudence relies on the liberal intuition described in the famous Carolene Products footnote 4 which said that legislation aimed at "discrete and insular minorities" which lacked the normal protections of the political process would be one exception to the presumption of constitutionality, justifying a heightened standard of judicial review.
However, one person's discrete and insular minority is another person's special interest group with outsize influence. Can it truly be said that minority groups in the U.S. lack access to the political process? To the contrary, many has disproportionate influence as discrete voting blocs. You could even call the entire Democratic Party an ad hoc coalition of minority interest groups. See also the culture of political correctness--you can't even debate certain topics concerning minority rights without fear of a vicious economic backlash.
So if the Carolene Products rationale is uprooted based on the state of modern politics, maybe we need to do away with strict scrutiny review.
The Marquis de Scalia would have been much more happily employed in the Holy Office of The Inquisition.
He is a bitter, mean spirited old man who derives his beliefs from "religious" magical thinking, facing, at the end of his life the inevitable march of progress which will regulate him to a historical footnote, not as a well liked, well respected scholar of the law. Not as a Justice who grew in his time on the Court but rather one who ended smaller, meaner, more bitter.
He is a bitter, mean spirited old man who derives his beliefs from "religious" magical thinking, facing, at the end of his life the inevitable march of progress which will regulate him to a historical footnote, not as a well liked, well respected scholar of the law. Not as a Justice who grew in his time on the Court but rather one who ended smaller, meaner, more bitter.
111
Touche'. I will only add that a man who cannot or who refuses to distinguish between two consenting adults of the same sex who wish to get married and a pedophile who molests innocent and non-consenting children has no business serving as judge in a traffic court, let alone as a member of the US Supreme Court. Scalia should take a lesson from Clarence Thomas and just keep his mouth shut.
116
it needs to be impeached, convicted and removed from office.
1
For me the most significant thing about this Op-Ed it is what it says about what it means to be a "conservative" and especially a "conservative judge" in this country. When Scalia and Posner were appointed to the federal bench, both by Reagan three decades ago, both were considered to be " very conservative." That label clearly is still applied to Scalia, but not so much to Posner. This Op-Ed underscores the chasm that has now opened up between their judicial philosophies.But has Posner changed, or has the concept of what it means to be a conservative shifted sharply away from Posner? I think it is Scalia and Conservatism generally that has shifted, sharply and often irrationally to the right.
45
Part of the proof of this is that most Americans do not share Justice Scalia's views. He may think he speaks for them, but any poll shows he is very out of step with the majority of Americans.
3
"I think it is Scalia and Conservatism generally that has shifted, sharply and often irrationally to the right."
If I may rephrase for you:
"I think it is Scalia and Conservatism generally that has shifted, sharply and often to the irrational right."
If I may rephrase for you:
"I think it is Scalia and Conservatism generally that has shifted, sharply and often to the irrational right."
6
Scalia seems to have realized that his socially conservative and conveniently politically expedient textual approach to the constitution is waning in acceptance and efficacy, and is determined to be, if not more important, at least louder. When the Supreme Court is finally free of him, his political legacy will land somewhere between Andrew Jackson and George Wallace, and future generations will shake their head at his one-time influence.
23
scalia and his ilk are on the verge of creating a wave of active resistance to religion, which some of us will be eager to join. scalia's church of rome, the church of morman, and the end-timers of carson may have their attractions, but they have no authority over the rest of us. ethics are important, but mythology has no place in the laws of a free, rational, and dignified society- all of which scalia opposes. we are threatened in the world not by disbelief but by the tyranny of religious fanatics.
43
Even the NYT bends over backwards not to offend the religious right.. Seems to me that they wield an inordinate amount of power.
5
The irrelevance of Scalia rants is demonstrated by how nimbly they fall into the category of humor without even touching reasoned jurisprudence.
16
The United States was once a republic. These days it's more accurately characterized as an aristocracy, as categorized by Aristotle.
Sovereignty in the United States resides in the Supreme Court, which is entitled to define the rights and obligations of every citizen, resident and institution in the United States by a 5-4 majority ---- sometimes less.
Sovereignty in the United States resides in the Supreme Court, which is entitled to define the rights and obligations of every citizen, resident and institution in the United States by a 5-4 majority ---- sometimes less.
9
A correction: for Aristotle, an aristocracy is the rule by the "aristoi," or the "best." The current U.S. is rule by the "oligoi," or the few, more precisely, the few wealthy. For Aristotle, that's the degenerate form of aristocracy. I don't know where the best are hanging out, but they don't seem to be in government in any great number.
5
Yup. That's what the court is supposed to do. But what is "less" than a 5-4 decision? 4.75 to 4.25? I'm pretty sure a 1 person majority is as close as it gets (5-4, 4-3, 3-2...)
1
Craving a fundamentalist police state, Justice Scalia can do little more than rant from the sidelines as America becomes ever more pluralistic, and as traditionally disenfranchised groups of whom he disapproves earn -- at long last! -- their rights. I look forward to this fossil being replaced on the Court by someone with a mindset somewhat more congruent with the times than with the 1950s.
40
No, the logic of Scalia's position is that the text of the Constitution is to be read fairly, not enlarged upon unreasonably. There is no right for same-sex marriage in the Constitution. The very idea that it is even possibly there is ludicrous; the founders who enacted the Constitution despised homosexuality. Does this mean we must never legalize same-sex marriage and be held captive to a Constitution we, the citizens of America, no longer fully agree with? Of course not. But by not even voting on whether to legalize same-sex marriage, and instead being forced to let nine unelected lawyers decide to legalize it, American citizens have been duped out of their own powers to decide the course of their nation. That is what is a shame, not homosexuality.
7
Mike,
I suppose the whole "life liberty, and pursuit of happiness" part of the Constitution is just....fluff to you?
I suppose the whole "life liberty, and pursuit of happiness" part of the Constitution is just....fluff to you?
9
If you take a textualist view of the Constitution like Scalia does, "people" and "persons" refers pretty much only to property owning white males. At the time of the passage of the 14th amendment, women didn't have the right to vote, and with more Scalia types on the Court, they never would get it.
10
Mike, I not sure you understand how the SC reaches its decisions. The nine justices didn't specifically "legalize" gay marriage, they said that law that make same sex marriage illegal violates a US citizens rights and are therefore unconstitutional. There's no specific language in Roe v. Wade the "legalized" abortion but that decision said that US citizens have an inalienable right of privacy (which is not spelled out in the Bill of Rights), and that the decision of whether to carry a child to term is a private one to be decided by the pregnant woman and her family (within certain reasonable limitations, of course). Who you marry is also a private decision and no government of any type has business legislating such private behavior, thus those laws have been held unconstitutional.
8
More reasons why Independents and Democrats who want reason to prevail on the Supreme Court had better get out and vote in November. The next two to four court appointments will lay the foundation for rulings spanning the next 20-40 years. If your perfect candidate doesn't get nominated, get over it and vote. We need to shepard the country beyond these times where Scalia's reasoning still appeals to far too many. Hopefully, his ideas will seem as ludicrous to future generations as slavery does to us today.
79
Scalia's dissent in the Obergefell case was that “to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”
To that I'd also add that no one who still wants to live in the 18th century should be voting on decisions that involve people living in the 21st century.
Maybe it is time to change the Constitution and place term limits on those serving in the SCOTUS. After all we want people who evolve with the times voting on today's issues.
To that I'd also add that no one who still wants to live in the 18th century should be voting on decisions that involve people living in the 21st century.
Maybe it is time to change the Constitution and place term limits on those serving in the SCOTUS. After all we want people who evolve with the times voting on today's issues.
29
.
.
Judge Posner and Prof. Segall say that Justice Scalia's stance " implies that state and local officials are free to ignore his gun-friendly decision in District of Columbia v. Heller (holding that the Second Amendment protects an individual’s right to own a gun)." They continue, "Perhaps a few state and local officials will take Justice Scalia up on that offer."
Indeed so. Since Heller was decided, numerous courts have refused to strike down laws restricting possession of loaded handguns. Pro=gun groups have sought High Court intervention, citing Heller each time. The Supreme Court normally does not take such cases.
Primarily, this is probably because the Heller ruling says: "Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions on the commercial sale of arms."
.
Judge Posner and Prof. Segall say that Justice Scalia's stance " implies that state and local officials are free to ignore his gun-friendly decision in District of Columbia v. Heller (holding that the Second Amendment protects an individual’s right to own a gun)." They continue, "Perhaps a few state and local officials will take Justice Scalia up on that offer."
Indeed so. Since Heller was decided, numerous courts have refused to strike down laws restricting possession of loaded handguns. Pro=gun groups have sought High Court intervention, citing Heller each time. The Supreme Court normally does not take such cases.
Primarily, this is probably because the Heller ruling says: "Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions on the commercial sale of arms."
4
As of the Times' latest update, at least 14 have been shot dead in San Bernardino. And just 5 days after the last mass shooting.
5
Precisely. Hoist him up on his own petard. Scalia is an ugly bully whose comeuppance is more than long overdue. Ginsberg should explain what it is she could possibly like about him.
26
Every time the great Ginsberg expresses her affection for that man I lose a little more respect for her.
2
Scalia wants to empower legislatures which might sound fine, if one had a limited memory or knew nothing of history. I however recall that in the 50's minorities turned to the courts to get protections that most legislatures, esp. those in the South, denied them. I tremble to think what our nation would be like if Scalia and his like then reigned.
24
"Scalia wants to empower legislatures which might sound fine"--except when he doesn't, for example, by voting with C.J. Roberts to invalidate parts of the Voting Rights Act, even though they were reauthorized by large majorities in the House and Senate (was it unanimous in the Senate?) The majority found that voter suppression no longer existed in the districts in question even though Congress found that. So the plain language in the 15th Amendment, "The Congress shall have power to enforce this article by appropriate legislation." doesn't apply when the Republican justices or their corporate paymasters don't like it. Or in Carhart, the five right-wing justices found that Congress has the power to find whatever it wants, even when contradicted by the experts at the American College of Obstetricians and Gynecologists. But if Congress finds that racial discrimination exists at the polling place, then that finding is invalid.
Transparent hypocrisy, thy name is Roberts-Scalia-Kennedy-Thomas-Alito.
Transparent hypocrisy, thy name is Roberts-Scalia-Kennedy-Thomas-Alito.
8
Judges say they can decide cases impartially, according to the law, regardless of their personal beliefs.
This--obviously--has not been the case for years, if not decades, on the Supreme Court with justices like Scalia still roaming the hallways.
This--obviously--has not been the case for years, if not decades, on the Supreme Court with justices like Scalia still roaming the hallways.
13
It's not just the partisan right-wing that in recent years has adopted radical, indeed bizarre, contrarian attitudes unprecedented in modern American history but also judges.
None other than Scalia nearly 2 decades ago penned an opinion refusing to recognize any religious freedom for a pot-smoking Native American. As Scalia opined: obeying ordinary laws not targeting religion is not excused by invoking the 1st Amendment. Yet today, Scalia thunders in outrage that even the most flimsy objections by religious groups (even artificial persons like corporations) to any rule they do not like - literally: "We refuse to fill out your form stating that we have religious objections. Doing so makes us conspirators in your sinfulness."
We've also seem lower court judges writing judicial opinions to explain rulings that are naked partisan screeds rather than carefully crafted, rational, precedent-citing tomes.
One can only wonder what Republican judicial officeholders in the past like Earl Warren, Byron White, Harry Blackmun, or John Paul Stevens would make of this radicalized group.
None other than Scalia nearly 2 decades ago penned an opinion refusing to recognize any religious freedom for a pot-smoking Native American. As Scalia opined: obeying ordinary laws not targeting religion is not excused by invoking the 1st Amendment. Yet today, Scalia thunders in outrage that even the most flimsy objections by religious groups (even artificial persons like corporations) to any rule they do not like - literally: "We refuse to fill out your form stating that we have religious objections. Doing so makes us conspirators in your sinfulness."
We've also seem lower court judges writing judicial opinions to explain rulings that are naked partisan screeds rather than carefully crafted, rational, precedent-citing tomes.
One can only wonder what Republican judicial officeholders in the past like Earl Warren, Byron White, Harry Blackmun, or John Paul Stevens would make of this radicalized group.
24
Small correction: it was peyote, not pot in the case you cite, Employment Division v Smith (1990). For the rest, agreed.
6
This is a terrific opinion piece. The best way to debunk Scalia's claims about his own jurisprudence is to show how inconsistent they are, and this piece masterfully accomplishes this. I expect Justice Scalia would say that invalidating statutes is perfectly acceptable when he does not like the statutes at issue, but that invalidating statutes is a usurpation of legislative power when he agrees with what the statutes say, no matter how discriminatory they may be. What distinguishes the two situations is his preference, and not any legal doctrine. Of course, Justice Scalia would not say this in so many words, but it is clear from Judge Posner's piece that the implication that this is the case is inescapable.
Three cheers for Judge Posner!
Three cheers for Judge Posner!
48
Activist judges? Pot calling kettle.
6
You would think that holders of high office in the USA would be among the most insightful, compassionate, humane, and enlightened members of American society. Instead we get corporate shills and bigots.
49
Justice Scalia is first and foremost a hypocrite. When it suits him, he wraps himself in the mantle of Constitutional Originalism and argues that the words of the founders are the beginning and end of the discussion. On the other hand, he wraps himself in the mantle of big D Democracy when it suits his ends. Regardless of the approach he takes, however, he preforms his conclusion and the wraps it in an attractive legal framework that makes it appear that he is doing the opposite.
136
The American Democratic Republic may not be everything we hoped, but it does have room for corrections.
Please name a Theocratic nation that is comparable if freedoms and choice that we have here at home.
Scalia may dream of such a Theocracy but probability should tell him it always ends up bad. A different religion takes power and uses those same laws against the former rulers.
Please, as our founders set up, keep religion out of our Secular Government.
For both religions sake and government.
All the more reason to Get! Out! and Vote!
Please name a Theocratic nation that is comparable if freedoms and choice that we have here at home.
Scalia may dream of such a Theocracy but probability should tell him it always ends up bad. A different religion takes power and uses those same laws against the former rulers.
Please, as our founders set up, keep religion out of our Secular Government.
For both religions sake and government.
All the more reason to Get! Out! and Vote!
53
He serves not justice in its integrity but his self-serving and mean-spirited values which unfortunately are impacting our day-to-day lives.
It is imperative that the next president be a democrat so that the influx of bigotry among our highest ranks cease.
It is imperative that the next president be a democrat so that the influx of bigotry among our highest ranks cease.
180
Justices to the Supreme Court should serve one 18 year term each and not enjoy a lifetime appointment. It is ridiculous that a single individual can possibly influence the nation's laws for half a century.
168
Why not 12 years instead? Three presidential administrations, six terms of Congress, two Senate terms. Seems like enough. Having a palpably demented bigot and his mute puppet constituting two-ninths of every decision is scary wrong.
29
Or, Justices from the Appellate Courts could sit in rotating appointments. That way, I think most judges would be less williing to overrule stare decisis. I think the court wouldn't be so polarized. Plus, hanging on to the job forever because a Democrat/Republican could tip the court liberal/conservative would be pointless.
Yeah, a pipe dream, I know.
Yeah, a pipe dream, I know.
2
The idea that the majority should rule ignores hundreds of years of thinking on the rule of law and minority rights: The majority doesn't need its rights protected through courts and law to the same degree that minorities do by the very fact that it is **the majority**.
15
False. That would suggest the majority acts as a homogeneous whole in the legislature. It often does not. In fact, there are many subgroups within the fictional white majority that have seen legislation and fear-based arguments against it. Individual rights have protected everyone and they will continue to do so rightfully.
1
OK yoyoz, you've got the stage: "there are many subgroups within the fictional white majority that have seen legislation and fear-based arguments against it"
"legislation", OK, go for it: name it. Let's hear about this "legislation"
"legislation", OK, go for it: name it. Let's hear about this "legislation"
1
Otherwise brilliant, Scalia is obsessed with the idea that American government should observe the same principle as the British Constitution -- that Parliamentary Sovereignty (a/k/a parliamentary supremacy) means that Congress supersedes the Constitution. He's not too keen on the American idea of judicial review either, which doesn't exist in the UK, because Parliamentary supremacy makes it impossible.
He poses beautifully with arguments that American law should refer to no foreign sources, but in fact he is as hostile to our American notion of law as he pretends to be about the others.
He poses beautifully with arguments that American law should refer to no foreign sources, but in fact he is as hostile to our American notion of law as he pretends to be about the others.
23
"Not content with throwing minorities under the bus..." Pleeeeeease. An affinity group is not a true minority. If so, then I am a minority and everything opposing that which I believe is tossing me under the bus, whose bus I know not. But the New York Times is on the side of whatever brings fame and fortune and votes to ITS affinity group: New York Times subscribers which I am -- only to have further confirmed daily the anti-truth substance of the Times.
http://www.periodictablet.com
http://www.periodictablet.com
1
Do I take you correctly as stating that being gay is merely being part of "an affinity group"? As in, it is a choice made on par with picking floor coverings? If so, I think you are sorely mistaken. None of my gay friends ever made a choice to be gay any more than I choose to be heterosexual. And I am not operating from a small sample group.
35
Are you being discriminated against in any way? Has anyone said, "I won't hire you because you have blue eyes?" "We won't rent to you because you love cats and we're dog people?" "So what if you have only one leg can't climb stairs? My company isn't going to put in a ramp or an elevator just so that you can work here." Same-sex marriage rights and homosexuality can be used as a reason to discriminate against a group of people. Somehow there needs to be a final word on the interpretation of certain laws and a way to establish rights not specifically established by the Constitution.
Exactly what lies does the NYT print? This is an opinion piece, so these are opinions, but the opinions are backed up with quotes from Justice Scalia, and then conclusions are drawn from them. It's not a news article, which should contain only facts.
Exactly what lies does the NYT print? This is an opinion piece, so these are opinions, but the opinions are backed up with quotes from Justice Scalia, and then conclusions are drawn from them. It's not a news article, which should contain only facts.
35
What constitutes an "affinity group," Ted? What constitutes a "true" minority? Without a definition of terms, your comment is void of content. Suppose someone said that a minority was not a true affinity group? Is that the opposite of your claim or is it the same claim? Suppose someone said that the members of the set, "affinity group," is in a one-to-one-and-onto coincidence with the members of the set, "true minority." Would that support your assertion or contradict it?
The New York Times has presented an opinion on its opinion pages. In no sense does that equate to a daily confirmation of the supposed "anti-truth" of the Times. Surely, you understand that an *opinion* has *no* obligation to be the "truth" in any sense of that term? Your comment is merely your opinion. Does the fact that I don't agree with your opinion mean that your opinion is, therefore, "anti-truth"?
You see where I'm going with this, of course.
The New York Times has presented an opinion on its opinion pages. In no sense does that equate to a daily confirmation of the supposed "anti-truth" of the Times. Surely, you understand that an *opinion* has *no* obligation to be the "truth" in any sense of that term? Your comment is merely your opinion. Does the fact that I don't agree with your opinion mean that your opinion is, therefore, "anti-truth"?
You see where I'm going with this, of course.
7
Where was Justice Scalia's standoff Supreme Court philosophy (“a system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy”) in ruling in the Supreme Court's decision to give the Presidential Campaign to Bush?
412
<>
Both liberal and conservative majorities on the Supreme Court have abused their power over the entire history of the United States. Apparently, they can't help themselves.
This is a product of the mistake in giving judges lifetime appointments and setting the standard for impeaching judges too high.
If they felt the risk of being impeached for their outrages against a Republican form of government, both liberals and conservatives would find they were constrained not to abuse their power as much.
Both liberal and conservative majorities on the Supreme Court have abused their power over the entire history of the United States. Apparently, they can't help themselves.
This is a product of the mistake in giving judges lifetime appointments and setting the standard for impeaching judges too high.
If they felt the risk of being impeached for their outrages against a Republican form of government, both liberals and conservatives would find they were constrained not to abuse their power as much.
2
Sadly, one of many who have been appointed but are unfit to serve on our highest court. Imagine if Bork had been approved!
29
Actually, Bork is one judge who might have stood against abusing the power of the political branches. He MIGHT have led majorities to reign in judicial abuses of power.
Or perhaps not. Power corrupts as they say. Too bad though that the left Mau Maued his appointment so outrageously and the Regan administration left him twisting in the wind.
Or perhaps not. Power corrupts as they say. Too bad though that the left Mau Maued his appointment so outrageously and the Regan administration left him twisting in the wind.
But we have already immortalized Bork by verbing his name!
2
I wouldn't have held my breath waiting for Bork to take a stand against the abuse of power. His nomination was a right-wing provocation, and the Democrats were more than justified in fighting his appointment.
From wiki: On October 20, 1973, Solicitor General Bork was instrumental in the "Saturday Night Massacre", U.S. President Richard Nixon's firing of Watergate Special Prosecutor Archibald Cox, following Cox's request for tapes of his Oval Office conversations. Nixon initially ordered U.S. Attorney General, Elliot Richardson, to fire Cox. Richardson resigned rather than carry out the order. Richardson's top deputy, Deputy Attorney General William Ruckelshaus, also considered the order "fundamentally wrong"[16] and also resigned, making Bork the Acting Attorney General. When Nixon reiterated his order, Bork complied and fired Cox, an act found illegal in November of that year in a suit brought by Ralph Nader. The Justice Department did not appeal the ruling, and because Cox indicated that he did not want his job back, the issue was considered moot.[16] Bork remained Acting Attorney General until the appointment of William B. Saxbe on January 4, 1974.[17]
In his posthumously published memoirs, Bork stated that following the firings, Nixon promised him the next seat on the Supreme Court. Nixon was unable to carry out the promise after resigning in the wake of the Watergate scandal, but eventually, in 1987, Ronald Reagan nominated Bork for the Supreme Court.
From wiki: On October 20, 1973, Solicitor General Bork was instrumental in the "Saturday Night Massacre", U.S. President Richard Nixon's firing of Watergate Special Prosecutor Archibald Cox, following Cox's request for tapes of his Oval Office conversations. Nixon initially ordered U.S. Attorney General, Elliot Richardson, to fire Cox. Richardson resigned rather than carry out the order. Richardson's top deputy, Deputy Attorney General William Ruckelshaus, also considered the order "fundamentally wrong"[16] and also resigned, making Bork the Acting Attorney General. When Nixon reiterated his order, Bork complied and fired Cox, an act found illegal in November of that year in a suit brought by Ralph Nader. The Justice Department did not appeal the ruling, and because Cox indicated that he did not want his job back, the issue was considered moot.[16] Bork remained Acting Attorney General until the appointment of William B. Saxbe on January 4, 1974.[17]
In his posthumously published memoirs, Bork stated that following the firings, Nixon promised him the next seat on the Supreme Court. Nixon was unable to carry out the promise after resigning in the wake of the Watergate scandal, but eventually, in 1987, Ronald Reagan nominated Bork for the Supreme Court.
7
It's nice to have it confirmed, that there is a "Majoritarian Theocracy." It's always important to know when the crazy people have taken over the nuthouse! Thanks Mr. Scalias!
15
Oh, that he might throw up his hands in disgust and walk away from the heresy his colleagues are inflicting on him!
Justice Scalia is exhibet A in the argument against life-time appointments. He has gone from being a thoughtful and forceful legal voice to a squawking bigot. The proposals floating around that would term limit the Justices are due a serious discussion.
Justice Scalia is exhibet A in the argument against life-time appointments. He has gone from being a thoughtful and forceful legal voice to a squawking bigot. The proposals floating around that would term limit the Justices are due a serious discussion.
19
I hope this is not the only round we take in this argument; let's at least hear both opposing views another time, if not twice.
Federalist Paper 10 (Fed 10) seems to clearly argue that the Constitution was designed to protect minority interests; the paper's examples focus on how it could protect economic minorities (i.e., the wealthy) from the interests of the majority. In other words, even if 99% of the population supported laws to appropriate the wealth of the 1%, the Constitution could protect that minority.
So Fed 10 seems to be a strong counter to Scalia's stance here.
But would the framers have accepted an argument that the Constitution and the Courts could be used to force a change by the minority onto the majority, rather than the protection of the status quo of the minority against the majority? That seems far harder to argue, and it's harder to use Fed 10 to make that case.
I would like to hear the opposing positions for another round.
Federalist Paper 10 (Fed 10) seems to clearly argue that the Constitution was designed to protect minority interests; the paper's examples focus on how it could protect economic minorities (i.e., the wealthy) from the interests of the majority. In other words, even if 99% of the population supported laws to appropriate the wealth of the 1%, the Constitution could protect that minority.
So Fed 10 seems to be a strong counter to Scalia's stance here.
But would the framers have accepted an argument that the Constitution and the Courts could be used to force a change by the minority onto the majority, rather than the protection of the status quo of the minority against the majority? That seems far harder to argue, and it's harder to use Fed 10 to make that case.
I would like to hear the opposing positions for another round.
1
The 13th, 14th and 15th Amendments pretty clearly were designed to protect minorities from the majority. The 14th's language is broad; arguably, it is a Constitutional basis for a radical reversal of previous understandings of the relationship between the government and individual persons.
17
The Civil War Amendments (13 - 15) were for the benefit of minorities and "forced" by the Constitution on the majority.
4
I find Scalia's personal feelings about issues of the day tiresome and inappropriate for a Supreme Court Justice. Scalia lacks dignity. He is a gas bag.
208
I haven't heard the phrase "gas bag" in ages (it was once quite popular!) but you couldn't have found a more perfect epithet for Scalia. Thanks for that.
9
The trouble with Scalia is that he believes that he - and only he (maybe with his silent sidekick Clarence) knows what the writers of the Constitution REALLY wanted and how they REALLY didn't think that 200 plus years later it could be open to less literal interpretations. It's as if we had to live under the rules written in cuneiform in ancient Mesopotamia.
60
Perhaps the good justice would be happier living under ISIL? They rule religion trumps (pun intended) all individual rights. If he wants a theocracy...there it stands.
60
If Justice Scalia has a genuine problem with "a committee of nine unelected lawyers" deciding the application of the nation's binding legal principles, perhaps he would be so kind as to step down from said committee himself, like person with integrity would.
Otherwise it seems as if his real beef is only that his own personal views don't get to always rule the decisions of that group; i.e. that he can't unilaterally order the world according to his own comfort and desires.
Count me unimpressed.
Otherwise it seems as if his real beef is only that his own personal views don't get to always rule the decisions of that group; i.e. that he can't unilaterally order the world according to his own comfort and desires.
Count me unimpressed.
464
Resign? Retire?
And, lose the salary, perks and benefits of being a life long maggot on the taxpayer?
Get real.
And, lose the salary, perks and benefits of being a life long maggot on the taxpayer?
Get real.
8
"If Justice Scalia has a genuine problem with "a committee of nine unelected lawyers" deciding the application of the nation's binding legal principles, perhaps he would be so kind as to step down from said committee himself, like person with integrity would."
Precisely. Excellent comment. Thank you!
Precisely. Excellent comment. Thank you!
11
What a silly article, it escapes into fantasy of what the Constitution is about. It seeks to find 'rights' never put into the Constitution, doing this with a basic misunderstanding of 'beliefs' and how they related to the 'establishment; clause of the Constitution. All this is proved in the last paragraph of the article, when it comments on 'free to ignore' the law. Think about it, is that not what is actually happening in the sanctuary city area. Please, stop this silliness. All are free, including Scalia, to choose what is enforce or not. All in America.
1
I don't know where you live, but where I live if I follow only those laws I agree with and ignore or flaunt the others, I'm in jail. And justifiably so. If there are laws on the books that I deem wrong, there are mechanisms in place in this country to change them. Ignoring them is not one of those mechanisms.
6
He's showing clear signs of dementia ... even more than his usual demented demeanor. One of the worst appointments in the court's history, even including Thomas, who is really a non-entity.
491
Unfortunately, a non-entity with a vote on the Supreme Court.
22
Yes, but sadly a voting non-entity, with 1/9 of the power
7
Some think that Thomas is the most dangerous person in America:
http://thinkprogress.org/justice/2014/02/24/3321531/clarence-thomas-amer...
http://thinkprogress.org/justice/2014/02/24/3321531/clarence-thomas-amer...
3
When, oh when, will our next president find some means of removing this cretinous joke of a justice from the bench? Scalia seems totally ignorant of the civil rights given us in the Constitution and Bill of Rights, but rather, seems to assume that mob rule should set the laws while using the Constitution and Bill of Rights as toilet paper.
29
The insane Scalia should be impeached/removed from the court.
If there isn't a defined process to do so, one needs to be developed quickly.
If there isn't a defined process to do so, one needs to be developed quickly.
61
Scalia is not insane! He is a patrician that does not believe in the constitution of the USA. In 1954 the words under God were put into the pledge of allegiance, That very act made pledging allegiance to the constitution open to the whims and sophistry of men like Antonin Scalia. America was supposed to be a nation of laws and John Q. Adams took his pledge on a book of laws that was the way it was supposed to be. Men like Scalia should never be put in a position where they determine God's will.
11
Scalia is a crank fighting a rear-guard action against reality. I'm not worried about him, as his written decisions lack real influence with anyone other than Clarence Thomas and Samuel Alito. I'm worried about Justice Kennedy whose decisions are unpredictable and his rationales questionable.
21
A judge who openly declares that rights of individuals specifically described in the Constitution he has sworn to uphold would appear to have relinquished his tenure in a position created by that same Constitution. The Congress of the United States can, and should, move to remove that judge from office.
19
And, now the correct version (with missing words):
A judge who openly declares that rights of individuals specifically described in the Constitution he has sworn to uphold ARE INVALID would appear to have relinquished his tenure in a position created by that same Constitution. The Congress of the United States can, and should, move to remove that judge from office.
A judge who openly declares that rights of individuals specifically described in the Constitution he has sworn to uphold ARE INVALID would appear to have relinquished his tenure in a position created by that same Constitution. The Congress of the United States can, and should, move to remove that judge from office.
5
he is a disgrace to the history of the court. i'm sick of reading that he has a brilliant legal mind. no, he doesn't. he's the worst of the activist judges.
446
"Originalist" is a newer name, but the same ideas as the "strict constructionist" white supremacists of 50 years ago who were opposed to any kind of civil rights for any minority... with a little Libertarian claptrap - as dictated and paid for by the Kochs - thrown in for good measure.
10
How unseemly and disrespectful it is to our system of jurisprudence for a sitting judge on an inferior court to take public potshots at a sitting justice.
Sherman: But taking pot shots at The Supremes is exactly what Scalia did when he gave his speeches. According to him, if the decision (whether on gay marriage or the ACA) goes against his fervent beliefs, it is wrong. He should be impeached and the sooner, the better.
41
These are not potshots. It's a carefully constructed analysis. And why shouldn't he be criticized and his judicial failings brought to light? Are you saying that Scalia should not be criticized? Who better than someone from the judiciary?
57
How unseemly and disrespectful it is to our system of jurisprudence for a sitting justice (Alito) to take public potshots (frowning and mouthing "not true") at our President (Obama) when he criticized the Citizens United Decision.
It is not nice, perhaps, to point out the emperor is not wearing any clothes, but necessary, if you value the truth more than the institution.
It is not nice, perhaps, to point out the emperor is not wearing any clothes, but necessary, if you value the truth more than the institution.
12
He also ignores the First Amendment, which prevents the establishment of any religion (including his Catholic) and its views on abortion, gay marriage, etc. If he feels that laws should not be made by nine lawyers (which includes him), maybe he should resign. If we left it up to the state or federal legislatures, we would still have slavery.
39
I'm going to take the RW approach to complicated issues, as in, "I'm not a scientist, but . . . "
I'm not a legal scholar, but Scalia is no less despicable or no less dangerous than Donald Trump in his hatred and bigotry. That he can sustain this much contempt for his fellow Americans or for his fellow humans without his head exploding is a marvel.
The title for this piece is excellent. A theocracy is just what Scalia wants, with himself as the head of what he hopes will be the American Catholic/Christian equivalent of the Saudi Mutaween (religious police).
I'm not a legal scholar, but Scalia is no less despicable or no less dangerous than Donald Trump in his hatred and bigotry. That he can sustain this much contempt for his fellow Americans or for his fellow humans without his head exploding is a marvel.
The title for this piece is excellent. A theocracy is just what Scalia wants, with himself as the head of what he hopes will be the American Catholic/Christian equivalent of the Saudi Mutaween (religious police).
38
Once again, through the artful and cogent writing of Professors Posner and Segall, my long held view that Justice Scalia is the most dangerous man in America is reaffirmed.
41
Posner is a judge (nominated by Reagan too).
Yes, Posner is a judge and a Senior Lecturer at University of Chicago aw School.
@Chris: I believe Judge Posner is also a Senior Lecturer at U of Chicago Law.
Scalia is deranged, dangerous, amoral and hypocritical. Instead of being a judge, he should be a Republican presidential candidate.
Advocating that people are not bound to law unless they are parties to the litigation should be grounds to fire him from the court; it is so nonsensical as to be inflammatory. "Let's all just ignore laws we don't like!" That's been tried. Anarchy doesn't work.
Advocating that people are not bound to law unless they are parties to the litigation should be grounds to fire him from the court; it is so nonsensical as to be inflammatory. "Let's all just ignore laws we don't like!" That's been tried. Anarchy doesn't work.
51
It seems like Justice Scalia's hatred of and animus toward LGBT Americans has warped his capacity to reason legally. Even Justices Alito and Thomas, who may share his views, haven't gone off the deep end the way Scalia has. Perhaps, like Justices Holmes and Douglas in their dotage, Scalia should be watched for signs of dementia and his colleagues may have to go to him as a group, if his condition worsens, and convince him to resign.
Sadly, we do not have any procedures in place for lifelong federal judges to be removed even though they may actively be exhibiting symptoms of Alzheimer's disease or another form of dementia.
Sadly, we do not have any procedures in place for lifelong federal judges to be removed even though they may actively be exhibiting symptoms of Alzheimer's disease or another form of dementia.
130
he should be impeached, tried, convicted and removed from office.
5
For me this ia a red letter day. After years of commenting that Antonin Scalia does not believe in the constitution of the USA a noted conservative jurist writes to confirm my opinions. Time to crack open the champagne too bad I can't drink.
Richard what took you so long?
Richard what took you so long?
46
Posner has been screaming at the cons on the SC for many years
1
Rich,
I admire and respect Judge Posner but those of us who know the writings and beliefs of the men that framed the constitution knew Scalia and the other originalists either lied or were ignorant of the fact that the God of Abraham and the Creator are two different deities. For Judge Posner Hyde Park informs his understanding that the constitution does not conform to Scalia's personal belief system.
I admire and respect Judge Posner but those of us who know the writings and beliefs of the men that framed the constitution knew Scalia and the other originalists either lied or were ignorant of the fact that the God of Abraham and the Creator are two different deities. For Judge Posner Hyde Park informs his understanding that the constitution does not conform to Scalia's personal belief system.
Sadly we must accept the chance that a complete lunatic will be appointed to the Supreme Court. That's why there are 'checks' and balances'.
The remedy, of course, is to elect sane people as President, and sane members of Congress to approve the sane nominees.
So yeah, I guess the message is 'don't vote for one of those insane, homophobic, racist, sexist, nativist Republicans'. OK?
The remedy, of course, is to elect sane people as President, and sane members of Congress to approve the sane nominees.
So yeah, I guess the message is 'don't vote for one of those insane, homophobic, racist, sexist, nativist Republicans'. OK?
273
Thank you Ronald Reagan. Even in death your decisions haunt us.
593
Rather ironically, Reagan also nominated Posner for his current position.
2
It will be several decades more before we fully recover from the disaster that was Reagan.
13
BHE,
Ironically Scalia is a lot more fun than Posner and Americans elected an incompetent because he was a better bet to have a beer with.
Ironically Scalia is a lot more fun than Posner and Americans elected an incompetent because he was a better bet to have a beer with.
1
as his eminence declared in re: Gore v Bush, "get over it"
42
Whoa. Posner is (by an older definition) a conservative jurist and for him to throw down before Scalia like this is astonishing. Glad to see it, though.
469
I have followed Posner for a long time. He used to be considered very conservative, but in recent years he has really become much more progressive. Or perhaps he's stayed the same while the GOP has moved further and further to the right. In any case, I'm happy to see him taking a stand against that hypocritical idiot.
11
His been named many times as a possible candidate for the court.
From what I know (not much) of Judge P, this isn't too surprising. What would be surprising would be if he ever admitted that he had his brains in his pocket when he decided that Indiana's voter ID act was constitutional. Sure, he's since changed his mind, but he has just a bit too much amour propre to admit that his original decision was boneheaded.
2
Scalia is the best argument for term or age limits for Supreme Court justices.
517
And Ginsburg, his close friend, is a wonderful argument against them.
19
...and No Opus Dei members.
3
I'll see your Antonin Scalia and raise you one Ruth Bader Ginsburg. I don't know that age discrimination is really the way we want to deal with such flawed and selectively activist jurisprudence. Scalia's irresponsible comments effectively denigrating a US Supreme Court ruling are shameful and are corrosive to the rule of law. He merits, with distinction, full impeachment. Unfortunately, we have realized an evermore polarized American politics, with Justice Scalia among its ideological icons. His deserved removal will thus be thwarted.
Antonin Scalia has been given 30 years to serve on the USSC. I can think of no other jurist that has so tragically failed in making a more perfect union.
Antonin Scalia has been given 30 years to serve on the USSC. I can think of no other jurist that has so tragically failed in making a more perfect union.
3
Justice Scalia should resign and tour the country with Chris Christie in a new production of "The Sunshine Boys."
43
Let's be honest: no one individual has done more to harm our democracy in the past 2 decades than Scalia. He essentially holds two votes since Thomas parrots 90% of his decisions without opening his mouth.
Scalia may be the world's greatest hypocrite. He complains about judicial activism while aggressively legislating from the bench. He treats the Constitution as if it were etched in stone when it suits him; I'm 100% certain our Founding Fathers viewed it as a living, breathing document. And he attends and speaks at Tea Party and Koch Brother functions without recusing himself from relevant cases.
This country will not be able to move forward until Scalia is no longer in a position to determine how people should live their lives.
Scalia may be the world's greatest hypocrite. He complains about judicial activism while aggressively legislating from the bench. He treats the Constitution as if it were etched in stone when it suits him; I'm 100% certain our Founding Fathers viewed it as a living, breathing document. And he attends and speaks at Tea Party and Koch Brother functions without recusing himself from relevant cases.
This country will not be able to move forward until Scalia is no longer in a position to determine how people should live their lives.
1388
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."
Scalia has insisted that these fifteen words, which state the government must remain neutral about religious faith and practices, neither allowing or forbidding, to mean that religious beliefs deserve 'special' protections, far beyond the protections offered to all people.
Scalia has insisted that these fifteen words, which state the government must remain neutral about religious faith and practices, neither allowing or forbidding, to mean that religious beliefs deserve 'special' protections, far beyond the protections offered to all people.
7
As with the presidency, how about a four year term, two term limit for Justices of the Supreme Court? For that matter, how about uniformity, and applying it to both houses of Congress as well?
3
I just don't see how a blowhard. whose written opinions have almost never gotten a majority of his S.C. colleagues to sign on, represents any real danger to our democracy. I'm annoyed that we have to pay him a salary, but his ideas are worthless currency in the marketplace of ideas. People like the Koch brothers, and Rupert Murdoch have much more to answer for in terms of demonstrably negative impact on our democracy.
It is often commented that Justice Scalia is a major intellect, but he seems remarkably small-minded. He must also be a poor student of history, as his religion was, not too long ago, considered sufficient reason to abridge his rights. The other reactionary extremist on the bench, Justice Thomas, also espouses positions--when he deigns to express himself--that are thoroughly in line with the backward thinking that would have, in the recent past as well, condemned both his marriage to a white woman and his ability to participate fully in society as a black man.
These men are dinosaurs.
These men are dinosaurs.
822
You said it, D. Kahn! Kudos to you.
5
Justice Scalia's comments are mind boggling. How can anyone equate child molesters or abusers with being gay? One involves a victim that is being abused against his or her will, at an age where legal consent isn't even possible. The other involves conduct between two consenting adults. Apples and oranges.
Given his comments implying that majority will should rule, it seems clear he is unconcerned about the whole tyranny of the majority concept. How did someone so unfamiliar with basic concepts of American justice get appointed to the highest court in the first place?
Given his comments implying that majority will should rule, it seems clear he is unconcerned about the whole tyranny of the majority concept. How did someone so unfamiliar with basic concepts of American justice get appointed to the highest court in the first place?
357
"Justice Scalia's comments are mind boggling. How can anyone equate child molesters or abusers with being gay?" Easy for him, he loathes gay people. Members of the GOP have typically likened gay people to child molesters, I assume as a way to stir up animosity. He act, and is, a thug.
21
He got in because the Democrats, to their everlasting shame, allowed it.
7
He was appointed by someone so unfamiliar with the basic concepts of American justice - Ronald "The Presidency was my Greatest Role" Reagan.
12
I think the obvious point is that Scalia presents his worldview as principled, reasoned, and consistent, but in reality he feels no obligation to rule in such a fashion. The 14th Amendment protects white people from affirmative action, but doesn't support marriage equality. Government should be limited, but growing marijuana for your own use falls under the interstate commerce clause. I think he should just admit to himself that he is merely ruling based on his worldview rather than the set of principles he claims to adhere to. At least that way he wouldn't demonstrate hypocrisy quite so often.
814
It would be important for Scalia to recuse himself from cases which he has prejudiced opinions on as his words demonstrate his incapacity to render decisions based on Law, the Constitution, or evidence. That would exclude Scalia from ruling on cases regarding abortion, homosexuality, and corporate morality claims.
2
He used the 14th Amendment to appoint Bush president.
1
So Scalia was being disingenuous.
As to Richard Luettgen's remarks on Ginsburg v Scalia, I don't believe Richard has read very many Court opinions. If Richard had then he would have seen that J Ginsburg is far more deferential to legislative intent than Scalia & the other so-called conservatives who overturn legislation without a moment's hesitation. The so-called conservatives are what the Old Time Conservatives used to term "judicial activists" but now it is done on steroids such as Citizens United & voiding Congress's reauthorization of the Voting Rights Act.
Since Scalia is one of the main offenders of acting as the Super Legislature of which Scalia complains, perhaps he is having second thoughts on the wisdom of proceeding as he has done. After all, a great deal of what he has written is viewed as "pure applesauce."