8 ms·

Scalia was foremost an advocate of judicial restraint, who believed that the further the Courts stretched interpreting law, the more vulnerable the Courts becom

by rrggrr 11y ago

Scalia was foremost an advocate of judicial restraint, who believed that the further the Courts stretched interpreting law, the more vulnerable the Courts become to the animosities of the Executive and Legislative branches. The Judiciary, Scalia understood, was the least powerful and most vulnerable of the three branches of government, and its strength and influence rests in its artful and judicious use of its very, very limited authority. A few Scalia quotes that illustrate this: >There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all. >If you think aficionados of a living Constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility. >“This Court holds only the judicial power—the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct. >“Perhaps sensing the dismal failure of its efforts to show that ‘established by the State’ means “established by the State or the Federal Government,’ the Court tries to palm off the pertinent statutory phrase as ‘inartful drafting.’ … This Court, however, has no free-floating power ‘to rescue Congress from its drafting errors.’”

nemo 11y ago
>Scalia was foremost an advocate of judicial restraint When convenient.
- vonnik 11y ago
  Totally agree. The stay he supported on the Florida recount was rampant federal interference in a state matter: https://en.wikipedia.org/wiki/Bush_v._Gore#Stay_of_the_Florida_recount https://en.wikipedia.org/wiki/Bush_v._Gore#Stay_of_the_Flori... Indirectly, he gave us eight years of incompetence and Iraq, a horrible farce of a war.
  - ethbro 11y ago
    You can't possibly put the result of Bush being elected on a Supreme Court Justice. Any more than you can put it on a single person who voted for him. Yes, they all share some responsibility, but the amount is so miniscule given future actions and how many people were fooled and lied to so as to be almost completely disconnected.
    - Beltiras 11y ago
      Actually one can. Just like the cause of a hanged man's death is the knot the hangman tied. There's a great big sequence of events preceding it for sure.
      - saalweachter 11y ago
        That's not really an apt analogy; if a hangman refuses to tie a knot, they'll find another hangman. The Supreme Court Justice specifically gets to choose one way or the other.
        ethbro 11y ago
        No, he or she doesn't. Because if they did so arbitrarily then they have likely long since been thrown off the lower benches. A judge doesn't decide: a judge weighs evidence and then states which interpretation of the law they believe is correct. If we had a judicial system arbitrated over by people who could simply say "I want this outcome" and make it so, then the country would and should crumble.
        saalweachter 11y ago
        ... if?
  - erikpukinskis 11y ago
    I wish Gore had won, and I don't know enough about law to have an opinion on the specifics of the case. But I am at peace with it for a simple reason: that election was within the margin of error. We can put a lot of stake into details of state law, but in reality it was a draw. Frankly I think the fairest thing would be a coin flip. In absence of that, I think "play it where it lies" is a fine proxy. I don't think a recount would've been any more or less fair. I think our energies are better served changing the widespread voter disenfranchisement which does in fact distort the ability of our electoral system, as enacted in law, from representing the will of the people.
- sandworm101 11y ago
  >>> When convenient. I'd say more "when useful". Many of his opinions were too convoluted to be considered convenient. He often went on and on without saying much of anything.
deleted 11y ago
[deleted]
bradleyjg 11y ago
Scalia was foremost an advocate of judicial restraint, who believed that the further the Courts stretched interpreting law, the more vulnerable the Courts become to the animosities of the Executive and Legislative branches. I don't think that's accurate. There is a position, albeit more in the academy than on the bench, that holds that judges should only in the rarest of circumstances hold that the actions of the other branches are unconstitutional. Scalia can't fairly be described as being an adherent of that school. Rather Scalia was foremost an originalist, it's a school of legal thought that he helped pioneer as a law professor. Today judges and legal scholars needs to grapple with originalism -- agree or disagree you need to speak to it. And with Balkin and Amir's spin on it, to borrow a quote, we are increasingly all originalists now. It's can be hard to believe it now but it wasn't always like this. When Scalia was going to law school no one was poring over the diaries of the founders or the records of the reconstruction congress looking for clues. Scalia was by no means the sole person responsible for the rise of originalism, nor the purest advocate for it, but he was certainly a major major contributor to it. That's what he will ultimately be remembered for, I think.
- tome 11y ago
  > I don't think that's accurate. There is a position, albeit more in the academy than on the bench, that holds that judges should only in the rarest of circumstances hold that the actions of the other branches are unconstitutional. Scalia can't fairly be described as being an adherent of that school. My understanding was that Scalia himself explicitly claimed to be following this philosophy. What makes you say otherwise?
  - bradleyjg 11y ago
    The evidence says otherwise. Scalia voted to strike down laws or held executive actions unconstitutional many times over the course of his career. At some point "the rarest of circumstances" has to have some bite. I'm sure he would have argued that he was compelled to do so by the text of the constitution and by the flagrant unconstitutionality of those laws/actions, but I don't think that's a good answer. He may have wished that circumstances would have allowed him to be an avatar of judicial restraint but regardless that's not what happened.
lawnchair_larry 11y ago
He absolutely was not. He was an advocate of interpreting original intent to align with his bigoted social and religious views, voting accordingly, and averting responsibility by acting as though he was merely honoring the intent. When that play wasn't available, he was a fan of playing the "states rights" card. Truly remarkable were his mental gymnastics allowing him to justify his activism as one of the above. Perhaps his strongest performance was his conclusion that money is speech, corporations are people, and therefore corporations are not to be limited in using their cash for political influence. But he helped the Koch brothers with fundraising, who were the biggest beneficiaries of that decision, so clearly he had to convince himself that what he decided made sense somehow. Unsurprisingly, he can barely maintain that position with a straight face when confronted head on: https://www.youtube.com/watch?v=UgQGJjQq4uk https://www.youtube.com/watch?v=UgQGJjQq4uk Anonymous money via a corporate entity isn't a problem because "the reporters can find out" and the amount of money spent to influence politics is insignificant because "we probably spend more on cosmetics anyway". People really look up to this guy?
ocdtrekkie 11y ago
Personally, while I've always preferred liberal legislatures, I do actually prefer conservative Justices. I want the Supreme Court to set a high Constitutional bar for a law to pass muster. I can't say I've agreed with everything Scalia has ever said, but there's plenty I did agree with as well. I'm definitely a bit concerned at where we could end up if a far more liberal Justice is selected to replace him.
- hackuser 11y ago
  > Personally, while I've always preferred liberal legislatures, I do actually prefer conservative Justices. I want the Supreme Court to set a high Constitutional bar for a law to pass muster. Let's clarify the meaning of "conservative". It could mean a judge who interprets the law strictly, or it could mean a judge who uses his position for partisan conservative purposes. I think Scalia was the latter.
hackuser 11y ago
> Scalia was foremost an advocate of judicial restraint He believed in judicial restraint when it came to interfering with conservative political causes; but when it came to furthering those causes, he was an activist. The court should not protect LGBT Americans due to "judicial restraint". But when it comes to a healthcare law passed by Congress and signed by the President, the court should overturn it. I could predict Scalia's rulings reliably by knowing only the politics of the case, not the law or the facts.
- nickff 11y ago
  This is plainly untrue; Scalia was one of the most consistent and strong advocates for defendants' rights, and often decided cases which went against his personal morality. He was often quoted saying that the side he liked got no preferential consideration when it came to deciding a case, and if you look at the way he wrote his opinions, you will see this is true. He would often decide in favor of people who he personally disliked and believed to be guilty of horrible things because their arguments were correct.[1][2] [1] https://en.wikipedia.org/wiki/Kyllo_v._United_States https://en.wikipedia.org/wiki/Kyllo_v._United_States [2] https://en.wikipedia.org/wiki/Florida_v._Jardines https://en.wikipedia.org/wiki/Florida_v._Jardines
  - hackuser 11y ago
    > Scalia was one of the most consistent and strong advocates for defendants' rights That's not my impression and I quickly found the following, but I can't say the examples are representative of the overall trend or if the analyses are accurate (and I can't say the same of your examples). However, they are hard to reconcile with your claim: 1) Scalia is known for taking a hard stance against criminal defendants, and has long advocated striking down Miranda v. Arizona and upholding the constitutionality of the death penalty http://scarinciattorney.com/supreme-court-justices/antonin-scalia/ http://scarinciattorney.com/supreme-court-justices/antonin-s... 2) Defendants in criminal cases have a constitutional right to a competent lawyer's advice when deciding whether to accept a plea bargain, the Supreme Court ruled ... The ruling drew a sharply worded dissent from Justice Antonin Scalia, ... He angrily called the court's rulings a "judicially invented right to effective plea bargaining." The article notes, 97% of federal convictions and 94% of state convictions result from guilty pleas. http://articles.latimes.com/2012/mar/21/nation/la-na-court-plea-20120322 http://articles.latimes.com/2012/mar/21/nation/la-na-court-p... 3) Ring v Arizona: holding that the Sixth Amendment requires a jury [i.e., not merely a judge] to find the aggravating factors necessary for imposing the death penalty. Scalia dissented: He voted to deny defendants the right to a jury for those purposes. https://en.wikipedia.org/wiki/Ring_v_Arizona https://en.wikipedia.org/wiki/Ring_v_Arizona 4) Lawrence v Texas: The Court struck down the sodomy law in Texas and, by extension, invalidated sodomy laws in 13 other states, making same-sex sexual activity legal in every U.S. state and territory. - in 2003! Scalia dissented, which if successful (and IIUC) would have sent defendant Lawrence to prison for having sex. Again, in 2003! https://en.wikipedia.org/wiki/Lawrence_v._Texas https://en.wikipedia.org/wiki/Lawrence_v._Texas ---- If the above is correct and I understand correctly: He opposed Miranda, the minimal requirement to inform defendants of their rights; opposed the right to an attorney for plea bargains, from which result >94% of criminal convictions; opposed the right to a jury for a essential aspect of death sentences; and voted to allow the state to imprison a defendant for having consensual sex with an adult. I'm sure there are some grey areas, but I have a hard time seeing him as a ally of criminal defendants.

by rrggrr 11y ago

nemo 11y ago

>Scalia was foremost an advocate of judicial restraint When convenient.

vonnik 11y ago
Totally agree. The stay he supported on the Florida recount was rampant federal interference in a state matter: https://en.wikipedia.org/wiki/Bush_v._Gore#Stay_of_the_Florida_recount https://en.wikipedia.org/wiki/Bush_v._Gore#Stay_of_the_Flori... Indirectly, he gave us eight years of incompetence and Iraq, a horrible farce of a war.
- ethbro 11y ago
  You can't possibly put the result of Bush being elected on a Supreme Court Justice. Any more than you can put it on a single person who voted for him. Yes, they all share some responsibility, but the amount is so miniscule given future actions and how many people were fooled and lied to so as to be almost completely disconnected.
  - Beltiras 11y ago
    Actually one can. Just like the cause of a hanged man's death is the knot the hangman tied. There's a great big sequence of events preceding it for sure.
    - saalweachter 11y ago
      That's not really an apt analogy; if a hangman refuses to tie a knot, they'll find another hangman. The Supreme Court Justice specifically gets to choose one way or the other.
      - ethbro 11y ago
        No, he or she doesn't. Because if they did so arbitrarily then they have likely long since been thrown off the lower benches. A judge doesn't decide: a judge weighs evidence and then states which interpretation of the law they believe is correct. If we had a judicial system arbitrated over by people who could simply say "I want this outcome" and make it so, then the country would and should crumble.
        saalweachter 11y ago
        ... if?
- erikpukinskis 11y ago
  I wish Gore had won, and I don't know enough about law to have an opinion on the specifics of the case. But I am at peace with it for a simple reason: that election was within the margin of error. We can put a lot of stake into details of state law, but in reality it was a draw. Frankly I think the fairest thing would be a coin flip. In absence of that, I think "play it where it lies" is a fine proxy. I don't think a recount would've been any more or less fair. I think our energies are better served changing the widespread voter disenfranchisement which does in fact distort the ability of our electoral system, as enacted in law, from representing the will of the people.
sandworm101 11y ago
>>> When convenient. I'd say more "when useful". Many of his opinions were too convoluted to be considered convenient. He often went on and on without saying much of anything.

deleted 11y ago

[deleted]

bradleyjg 11y ago

Scalia was foremost an advocate of judicial restraint, who believed that the further the Courts stretched interpreting law, the more vulnerable the Courts become to the animosities of the Executive and Legislative branches. I don't think that's accurate. There is a position, albeit more in the academy than on the bench, that holds that judges should only in the rarest of circumstances hold that the actions of the other branches are unconstitutional. Scalia can't fairly be described as being an adherent of that school. Rather Scalia was foremost an originalist, it's a school of legal thought that he helped pioneer as a law professor. Today judges and legal scholars needs to grapple with originalism -- agree or disagree you need to speak to it. And with Balkin and Amir's spin on it, to borrow a quote, we are increasingly all originalists now. It's can be hard to believe it now but it wasn't always like this. When Scalia was going to law school no one was poring over the diaries of the founders or the records of the reconstruction congress looking for clues. Scalia was by no means the sole person responsible for the rise of originalism, nor the purest advocate for it, but he was certainly a major major contributor to it. That's what he will ultimately be remembered for, I think.

tome 11y ago
> I don't think that's accurate. There is a position, albeit more in the academy than on the bench, that holds that judges should only in the rarest of circumstances hold that the actions of the other branches are unconstitutional. Scalia can't fairly be described as being an adherent of that school. My understanding was that Scalia himself explicitly claimed to be following this philosophy. What makes you say otherwise?
- bradleyjg 11y ago
  The evidence says otherwise. Scalia voted to strike down laws or held executive actions unconstitutional many times over the course of his career. At some point "the rarest of circumstances" has to have some bite. I'm sure he would have argued that he was compelled to do so by the text of the constitution and by the flagrant unconstitutionality of those laws/actions, but I don't think that's a good answer. He may have wished that circumstances would have allowed him to be an avatar of judicial restraint but regardless that's not what happened.

lawnchair_larry 11y ago

He absolutely was not. He was an advocate of interpreting original intent to align with his bigoted social and religious views, voting accordingly, and averting responsibility by acting as though he was merely honoring the intent. When that play wasn't available, he was a fan of playing the "states rights" card. Truly remarkable were his mental gymnastics allowing him to justify his activism as one of the above. Perhaps his strongest performance was his conclusion that money is speech, corporations are people, and therefore corporations are not to be limited in using their cash for political influence. But he helped the Koch brothers with fundraising, who were the biggest beneficiaries of that decision, so clearly he had to convince himself that what he decided made sense somehow. Unsurprisingly, he can barely maintain that position with a straight face when confronted head on: https://www.youtube.com/watch?v=UgQGJjQq4uk https://www.youtube.com/watch?v=UgQGJjQq4uk Anonymous money via a corporate entity isn't a problem because "the reporters can find out" and the amount of money spent to influence politics is insignificant because "we probably spend more on cosmetics anyway". People really look up to this guy?

ocdtrekkie 11y ago

Personally, while I've always preferred liberal legislatures, I do actually prefer conservative Justices. I want the Supreme Court to set a high Constitutional bar for a law to pass muster. I can't say I've agreed with everything Scalia has ever said, but there's plenty I did agree with as well. I'm definitely a bit concerned at where we could end up if a far more liberal Justice is selected to replace him.

hackuser 11y ago
> Personally, while I've always preferred liberal legislatures, I do actually prefer conservative Justices. I want the Supreme Court to set a high Constitutional bar for a law to pass muster. Let's clarify the meaning of "conservative". It could mean a judge who interprets the law strictly, or it could mean a judge who uses his position for partisan conservative purposes. I think Scalia was the latter.

hackuser 11y ago

> Scalia was foremost an advocate of judicial restraint He believed in judicial restraint when it came to interfering with conservative political causes; but when it came to furthering those causes, he was an activist. The court should not protect LGBT Americans due to "judicial restraint". But when it comes to a healthcare law passed by Congress and signed by the President, the court should overturn it. I could predict Scalia's rulings reliably by knowing only the politics of the case, not the law or the facts.

nickff 11y ago
This is plainly untrue; Scalia was one of the most consistent and strong advocates for defendants' rights, and often decided cases which went against his personal morality. He was often quoted saying that the side he liked got no preferential consideration when it came to deciding a case, and if you look at the way he wrote his opinions, you will see this is true. He would often decide in favor of people who he personally disliked and believed to be guilty of horrible things because their arguments were correct.[1][2] [1] https://en.wikipedia.org/wiki/Kyllo_v._United_States https://en.wikipedia.org/wiki/Kyllo_v._United_States [2] https://en.wikipedia.org/wiki/Florida_v._Jardines https://en.wikipedia.org/wiki/Florida_v._Jardines
- hackuser 11y ago
  > Scalia was one of the most consistent and strong advocates for defendants' rights That's not my impression and I quickly found the following, but I can't say the examples are representative of the overall trend or if the analyses are accurate (and I can't say the same of your examples). However, they are hard to reconcile with your claim: 1) Scalia is known for taking a hard stance against criminal defendants, and has long advocated striking down Miranda v. Arizona and upholding the constitutionality of the death penalty http://scarinciattorney.com/supreme-court-justices/antonin-scalia/ http://scarinciattorney.com/supreme-court-justices/antonin-s... 2) Defendants in criminal cases have a constitutional right to a competent lawyer's advice when deciding whether to accept a plea bargain, the Supreme Court ruled ... The ruling drew a sharply worded dissent from Justice Antonin Scalia, ... He angrily called the court's rulings a "judicially invented right to effective plea bargaining." The article notes, 97% of federal convictions and 94% of state convictions result from guilty pleas. http://articles.latimes.com/2012/mar/21/nation/la-na-court-plea-20120322 http://articles.latimes.com/2012/mar/21/nation/la-na-court-p... 3) Ring v Arizona: holding that the Sixth Amendment requires a jury [i.e., not merely a judge] to find the aggravating factors necessary for imposing the death penalty. Scalia dissented: He voted to deny defendants the right to a jury for those purposes. https://en.wikipedia.org/wiki/Ring_v_Arizona https://en.wikipedia.org/wiki/Ring_v_Arizona 4) Lawrence v Texas: The Court struck down the sodomy law in Texas and, by extension, invalidated sodomy laws in 13 other states, making same-sex sexual activity legal in every U.S. state and territory. - in 2003! Scalia dissented, which if successful (and IIUC) would have sent defendant Lawrence to prison for having sex. Again, in 2003! https://en.wikipedia.org/wiki/Lawrence_v._Texas https://en.wikipedia.org/wiki/Lawrence_v._Texas ---- If the above is correct and I understand correctly: He opposed Miranda, the minimal requirement to inform defendants of their rights; opposed the right to an attorney for plea bargains, from which result >94% of criminal convictions; opposed the right to a jury for a essential aspect of death sentences; and voted to allow the state to imprison a defendant for having consensual sex with an adult. I'm sure there are some grey areas, but I have a hard time seeing him as a ally of criminal defendants.