6 ms·

I used to feel like that - that Justice Scalia was an thoughtful, intellectually honest justice that I profoundly disagreed with simply because I found his foun

by fpgeek 11y ago

I used to feel like that - that Justice Scalia was an thoughtful, intellectually honest justice that I profoundly disagreed with simply because I found his foundational principles alien and wrong. Then came Eldred v. Ashcroft. Larry Lessig, argued the case before the Supreme Court. In his retrospective on the case [1], Lessig describes how he built his argument on the Lopez/Morrison line of decisions which said that Congress's enumerated powers had to be interpeted so that they are structurally limited. In Lopez/Morrison, Scalia agreed with the argument that Congress can't regulate whatever they want simply by declaring it to be related to interstate commerce. Lessig's argument in Eldred was that a similar structural limit should apply to the copyright power: Congress shouldn't be able to establish effectively unlimited copyright "on the installment plan". I want to be clear what I am claiming here. I'm not saying Scalia was intellectually dishonest because Lessig lost. I'm claiming it because (as described in the retrospective) the Court didn't even address his core argument. Even if Ginsburg didn't want to include it in her majority opinion (perhaps because she didn't agree with the Lopez/Morrison decisions), Scalia could have explained why Eldred was different in a concurrence, but he didn't. That's where I see the intellectual dishonesty. [1] http://www.legalaffairs.org/issues/March-April-2004/story_lessig_marapr04.msp http://www.legalaffairs.org/issues/March-April-2004/story_le...

ianamartin 11y ago
This isn't really directed at you, but it seems like a good place to address the crowd. I didn't say the man was a saint or that he was always perfectly intellectually honest all the time. No one is. But I think was a lot more of those things than he often got credit for. Some of you seem to forget that people who have different opinions than you are also people. And as such, they have the right to try to get those opinions represented. Scalia's attitude towards torture was repulsive in my opinion. But he represents the attitudes of a very large number of real people. It's not like he's some kind of singular monster or something. As for saying crass things, giving people shit when maybe he shouldn't have, well, we've all done that too. I figure if there's one day you can cut a guy a little slack, it's the day he dies. Sheesh, if you can't find one tiny little positive thing to say about the man, I suggest that you aren't even trying. It's not like the man was pure evil. I further suggest that you say nothing at all if you honestly can't think of anything good about him. The vitriol in much of this thread is utterly tasteless and shameful.
- mentat 11y ago
  I'd love to see these people dealing with their every action criticized through their whole life. Now when he dies they can't stop piling on.
  - indrax 11y ago
    It's one thing to not speak ill of the dead, but you're complaining about a judge having their judgements judged.
    - dang 11y ago
      The key distinction is between criticizing Scalia's judgements, which many if not most of us would, and denouncing him a human being. The latter is a problem on HN because it rapidly degrades the discourse below the level we hope for. I also think that a little self-observation is enough to reveal (a) the rather ugly motives behind that mechanism, and (b) how we would each consider it unfair in our own case.
- lawnchair_larry 11y ago
  >Some of you seem to forget that people who have different opinions than you are also people." I think you have something in common with the people who don't like Scalia.
- TheOtherHobbes 11y ago
  > And as such, they have the right to try to get those opinions represented. At best, Scalia represented the opinions of an opinionated and influential but not truly representative minority of the population. Now - there's nothing in the constitution that says explicitly that the Supreme Court should be a representative body. But the political reality is that judges aren't picked for the SC because they're the best legal minds of their generation - they're chosen for their legal minds and for their politics. IMO, in a representative democracy, the political values of the judiciary and especially of the SC should be broadly similar to those of the population. Did Scalia bring the SC closer to the values of the median population, or did he move it away from the median?

by fpgeek 11y ago

ianamartin 11y ago

This isn't really directed at you, but it seems like a good place to address the crowd. I didn't say the man was a saint or that he was always perfectly intellectually honest all the time. No one is. But I think was a lot more of those things than he often got credit for. Some of you seem to forget that people who have different opinions than you are also people. And as such, they have the right to try to get those opinions represented. Scalia's attitude towards torture was repulsive in my opinion. But he represents the attitudes of a very large number of real people. It's not like he's some kind of singular monster or something. As for saying crass things, giving people shit when maybe he shouldn't have, well, we've all done that too. I figure if there's one day you can cut a guy a little slack, it's the day he dies. Sheesh, if you can't find one tiny little positive thing to say about the man, I suggest that you aren't even trying. It's not like the man was pure evil. I further suggest that you say nothing at all if you honestly can't think of anything good about him. The vitriol in much of this thread is utterly tasteless and shameful.

mentat 11y ago
I'd love to see these people dealing with their every action criticized through their whole life. Now when he dies they can't stop piling on.
- indrax 11y ago
  It's one thing to not speak ill of the dead, but you're complaining about a judge having their judgements judged.
  - dang 11y ago
    The key distinction is between criticizing Scalia's judgements, which many if not most of us would, and denouncing him a human being. The latter is a problem on HN because it rapidly degrades the discourse below the level we hope for. I also think that a little self-observation is enough to reveal (a) the rather ugly motives behind that mechanism, and (b) how we would each consider it unfair in our own case.
lawnchair_larry 11y ago
>Some of you seem to forget that people who have different opinions than you are also people." I think you have something in common with the people who don't like Scalia.
TheOtherHobbes 11y ago
> And as such, they have the right to try to get those opinions represented. At best, Scalia represented the opinions of an opinionated and influential but not truly representative minority of the population. Now - there's nothing in the constitution that says explicitly that the Supreme Court should be a representative body. But the political reality is that judges aren't picked for the SC because they're the best legal minds of their generation - they're chosen for their legal minds and for their politics. IMO, in a representative democracy, the political values of the judiciary and especially of the SC should be broadly similar to those of the population. Did Scalia bring the SC closer to the values of the median population, or did he move it away from the median?