Today’s Fountain of Ridiculous Crap From Antonin Scalia
Posted on September 29, 2004 Posted by John Scalzi 28 Comments
CAMBRIDGE, Massachusetts (AP) — Supreme Court Justice Antonin Scalia says he believes “abstract moralizing” has led the American judicial system into a quagmire, and that matters such as abortion and assisted suicide are “too fundamental” to be resolved by judges.
“What I am questioning is the propriety, indeed the sanity, of having value-laden decisions such as these made for the entire society … by judges,” Scalia said on Tuesday during an appearance at Harvard University’s Kennedy School of Government.
— “Scalia: Abortion ‘too fundamental’ for judges” 9/29/04
Well, excellent. I invite Antonin Scalia to philosophically back up this contention by recusing himself the next time abortion or assisted suicide comes up in front of the Supreme Court.
A show of hands of everyone who thinks he will. No rush.
For the edification of all, let me give my estimation of Judge Scalia’s thinking on what matters are too “fundamental” for the courts:
Scalia personally supports it: Not too fundamental.
Scalia doesn’t personally support it: Waaaay too fundamental.
Now, personally, I think picking a president for the nation is probably a task too fundamental for the courts, but I don’t recall Scalia exactly rushing to the moral barricades on that one.
Note to self: If ever President, remember not to nominate to the Supreme Court someone who has such clear contempt for the American federal system.
“In some cases — and in response to a question from the audience, he acknowledged Brown vs. Board of Education was one — there is a societal benefit when a court rules against prevailing popular opinion, but generally speaking it is fundamentally bad for democracy, he said.”
Or, to quote another justice, “I know it when I see it.”
“I believe in liberal democracy, which is a democracy that worries about the tyranny of the majority, but it is the majority itself that must draw the lines,” Scalia said.
That would be . . . the tyranical majority itself? Man, I knew there was a reason I didn’t have a shot at a clerkship with the Supremes — I’m just not smart enough to come up with primo shit like that.
“As an example, he cited the women’s suffrage movement, which he said resulted from the will of the people, not a court.”
And they only had to wait about 144 years (depending on whether you count from the Declaration of Independence or the constitution) to get it! So, like, chill for a while, dude!
John, maybe I’m thick but I’m not sure what the heck you are saying. Isn’t Scalia’s idea that some things should somehow be decided outside court (by referendum or what I don’t know). If that’s the case, I don’t see the relevence of what you wrote when you said:
“Now, personally, I think picking a president for the nation is probably a task too fundamental for the courts, but I don’t recall Scalia exactly rushing to the moral barricades on that one.”
But isn’t the court out of the loop when it comes to picking a president anyway?
Karl
Thanks a lot, John. Scalia’s mildest statements of this sort always make the top of my head blow off. Now I’m going to have to spend the rest of the day looking for the top of my head, as well as various other body parts, since this one was especially explosive.
Karl asks:
“But isn’t the court out of the loop when it comes to picking a president anyway?”
Karl, you wouldn’t happen not to be an American citizen, would you? The 2000 election was essentially decided by a Supreme Court ruling that gave the electoral votes of Florida to George Bush, thereby allowing him to become President of the United States.
Ahhhh right, of course.
Yes, I’m Canadian and I had forgotten about that issue in your last election.
I’m fully with you now.
Karl
Antonin Scalia is a token appointment, representing the intellectually challenged on the Supreme Court. The choice was between him and Archie Campbell, who was a justice of the peace on HEE-HAW. (No, I’m not going to explain how I know that.)
A fact which appears to have mightily pissed off Freyr.
The 2000 election was essentially decided by a Supreme Court ruling that gave the electoral votes of Florida to George Bush, thereby allowing him to become President of the United States.
Although, to be fair, the Miami Herald investigation showed later that even Gore had won his case, he still would have lost the modified vote count in Florida.
(There were other methods of recounting under which Gore would’ve won, such as looking at over-votes where intent was clear, not just under-votes– and it may well be that if every Florida voter’s ballot came out as intended, Gore would’ve won– but those alternative methods were never on the table.)
Regardless, the December 2000 decision was the moment I lost hope that Scalia might be principled and not a mere ideologue.
john spake thus:
Karl, you wouldn’t happen not to be an American citizen, would you? The 2000 election was essentially decided by a Supreme Court ruling that gave the electoral votes of Florida to George Bush, thereby allowing him to become President of the United States.
John –
We have a system in place to handle close elections. You obviously did not like the outcome but that is the process we have in place. Live with it.
The election was not stolen by anyone. Both sides attempted to disenfranchise voters and that is a black mark for our nation. The process worked. You say poorly, based on the outcome, while others have the opposite viewpoint on the matter.
The point is that the Supreme Court fufilled the role is was called to during the last election. I would have preferred that it had not come to the courts — we both can agree on that.
thane
Thane-
The Supreme Court is NOT the system we have to handle that sort of recount. The State of Florida gets to write its own system there. What the Supreme Court did was to rule that system unconstitutional, then to further rule that it would be “bad” (nothing more than that really, just bad) if Florida was given enough time to make a new, constitutional system, and that therefore no further vote could take place.
There are a couple of problems with this. First, the Supreme Court ruled that the Florida system was unconstitutional on the grounds that because different recount standards were used in each county on how to recount the votes, some counties would discard more than others, and the votes would not be given equal weight in aggregate, because if, perhaps, a largely democratic county had more strict standards for determining what a messed up ballot meant, that county would toss more votes, hurting democratic voters in comparison to a republican county nearby with less strict standards.
The problem here is that the original count was done by machines which do not have the same accuracy level. So, in some counties, particularly ones with older machines, more votes got tossed. In other counties with better, newer machines, fewer votes got tossed. So the problem existed in the first place, and, in fact, is integral in our entire electoral process. The Supreme Court tried to “fix” this by including in their ruling the statement that they did not intend their decision to lead to precedent in future cases. The S.C. has the power to do this, kind of. The problem with it is, if their reasoning was correct, future courts can reach the same conclusion on their own, and merely take queues from the S.C. rather than taking precedent. The other problem is, well, why? Why shouldn’t it be precedent? It makes it look like an awfully political decision when the S.C. essentially concedes that “Yeah, we just ruled the american electoral process unconstitional as it applies to any multi county election. Oh well. Just pretend we didn’t.”
Lower courts have started to pick up on this, and counties with particularly crappy voting machines have begun some lawsuits based on this decision claiming that they have a constitutional right to machines equal to their neighbors. After all, if they don’t have equal machines, more of their votes will be tossed, and their votes watered down, which Bush v. Gore ruled unconstitutional. Its a bit tough ground for them though, because lower courts are unwilling to go where the S.C. refused to go, and rule the entire presidential election process unconstitutional, not to mention the election process for countless congressmen and state officials.
So, no, the process didn’t work. The S.C. may have the proper role to judge the constitutionality of voting procedures, that’s fine. But that certainly does not include writing bullshit decisions that even that same Supreme Court refuses to actually implement to their logical conclusion. There is PLENTY of reason to criticize the S.C. for its action in Bush v. Gore.
Thane says:
“We have a system in place to handle close elections. You obviously did not like the outcome but that is the process we have in place. Live with it.”
I invite you, Thane, to find a single citation within the Whatever (or in any of my writing, for that matter) that suggests I believe that George Bush is not the legitimately and legally the President of the United States. If you can’t — and you won’t — then I would suggest to you that means I’ve “lived with it” just fine. And then, of course, I would suggest you take your snotty condescending remark and shove it back up from whence it came.
ARRRRRRRRRRRRRRRRGH!
Scalia makes me want to run down to the SC and stomp up and down on his pinheaded self.
The best part of the whole thing is that the SC overturned the Florida SC decision calling for a recount, and then said it wasn’t a precedent. Why should there have been a recount? The margin of victory (haha) was smaller than the statistical margin of error. Any scientist will tell you that when the margin of error is larger than what you’re measuring, the measurement is worthless. You need to go to a standard of measurement with a smaller margin of error, in this case a hand count.
Apparently statistics aren’t too fundamental a thing for Scalia to be interfering with from the bench.
I find myself quite surprised to vaguely agree with Scalia. The power of the Supreme Court is bad for democracy (although, in Canada and the United States at least, good for liberty). However, saying some matters are too fundamental for judges to decide is a bit bizzare. Yes abortion is too fundamental to be decided by judges. It is too fundamental to be decided by legislatures, and it is too fundamental to be decided by “the people”. But if we are to have the rule of law, a decision needs to be reached, and in some cases the Supreme Court is obviously the right venue. Matters of jurisdiction is one of them: do state governments have the authority to make abortion illegal? Yes the public can turf governments that overstep their bounds, but in the meantime the civil service does need a consistent direction, and a surpreme court ruling provides that. The December 2000 decision was wrong, but IMO it was still better than having no decision at all. Scalia may not like the constitution to be open to interpretation, but that is a large part of his job as specified by the constitution itself:
Article. III. Section. 2.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, …
Amendment [X.]
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Amendment [IX.]
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
I am not a lawyer, but near as I can tell the constitution itself it requires Supreme Court Judges to decide, when called upon, to decide (with only some guidance by the constitution) what rights are retained by the people. Hard to see how it can get more fundamental than that. Is Scalia advocating the amendment of the constitution? If so, why doesn’t he just come out and say that?
Thane said:
“We have a system in place to handle close elections. You obviously did not like the outcome but that is the process we have in place. Live with it.”
Much of the criticism I hear is that that process was not followed in Florida, but rather the Supreme Court chose a different process.
Thane:
“You say poorly, based on the outcome, while others have the opposite viewpoint on the matter.”
No. Not at all. What I have been hearing regarding the ruling was the *method* for deciding who the electoral votes would go to was bullshit. I have not had the pleasure of reading the decision for myself (I think I will now), but the criticism I’ve been hearing has *not* been that the decision was bad because Bush got elected. I don’t know John from Jack, but I think you have misjudged him.
Now, I happen to think that it is up to the Supreme Court to determine whether the electors have been appointed in accordance with the constitution, i.e. in the manner the state legislature directs, and if not what to do about it. So if people want to live by the rule of law, I think they do have to “live with it.” But they are entitled to be supremely pissed off, if as I heard it, the electors could have been appointed in the manner the State legislature directed had not the Supreme Court intervened.
It is truly an embarassment to your country that you have trouble running a transparent and fair election. Try ballot boxes, recounts, and observers next time.
John said:
I invite you, Thane, to find a single citation within the Whatever (or in any of my writing, for that matter) that suggests I believe that George Bush is not the legitimately and legally the President of the United States. If you can’t — and you won’t — then I would suggest to you that means I’ve “lived with it” just fine.”
That’s what I get for thinking slow: I had yet to see this remark when I posted. I take Thane is also incorrect about your criticism of the decision being due to Bush being elected?
… off to read Bush v. Gore …
I wonder who admiral naismith is
http://www.dailykos.com/story/2004/9/29/20729/3360
Andrew Wade asks:
“I take Thane is also incorrect about your criticism of the decision being due to Bush being elected?”
Yeah, fundamentally it’s not about Bush. It’s about deciding that it wasn’t worth the time to check people’s actual votes. I’d feel that way about it regardless of who got the White House. It’s one of the reasons I’m an unaffiliated voter — it allows me to be more invested in the electoral process than one team or the other.
Wade Spake: I find myself quite surprised to vaguely agree with Scalia. The power of the Supreme Court is bad for democracy (although, in Canada and the United States at least, good for liberty).
Yeah… see… the country wasn’t founded on the grounds that Democracy is the all important over-riding factor in a good government. It was that Liberty is. The Declaration of Independance was about where a government diverges from the desires of its citizens, but the US Constitution is about making a government that is least likely to abridge liberty. Throw on the first 10 ammendments and you have a document obsessed with liberty, and basically positive on the idea of democratic representation in gov’t.
As a side note… as bad as the US government has been about protecting liberty, a lot of other countries have done worse. Very often, what stands between democratic abridgements of liberty and where we are today is threat of, or past action of, the US Supreme Court.
Andrew muses:
“I wonder who AdmiralNaismith is.”
I was going to leave a comment on the fellow’s diary asking him when he was planning to get around to posting attribution, but the Daily Kos site requires registration and a 24 hour waiting period for new users before you can comment. So I just sent Kos an e-mail, asking him to remind diary writers that cutting and pasting entire entries from someone else’s site (not to mention comments!) without attribution is not very cool, and also illegal. We’ll see if that gets any results.
Of course, if someone here *does* have a Daily Kos account, feel free to ask the Admiral if he ever plans to get around to providing attribution and a link.
That’s just silly.
Everybody knows Admiral Naismith is Miles Vorkosigan’s alter identity.
“Of course, if someone here *does* have a Daily Kos account, feel free to ask the Admiral if he ever plans to get around to providing attribution and a link.”
I got your back, J-dawg.
Word.
Did y’all notice what else Scalia said?
http://www.thecrimson.com/article.aspx?ref=503540
“I even take the position that sexual orgies eliminate social tensions and ought to be encouraged.”
(link courtesy of Atrios)
The thought of Antonin Scalia whooping it up at an orgy will do more to encourage monogamy than any amount of abstinence education.
“It’s about deciding that it wasn’t worth the time to check people’s actual votes.”
As I remember it (accuracy not guaranteed), the Supreme court ruled that Florida couldn’t conduct a recount because it didn’t have useable rules for conducting one. To conduct one without rules would be unconstitutional, to write new rules to apply to an election already past would be unconstitutional. The least invalid option was to let the original count stand.
Quotha Scalzi: “The thought of Antonin Scalia whooping it up at an orgy will do more to encourage monogamy than any amount of abstinence education.”
Nah. It just means he’s not invited to *my* orgies. You’re still free to invite him to yours if you want :-)
DPWally said:
“As I remember it (accuracy not guaranteed), the Supreme court ruled that Florida couldn’t conduct a recount because it didn’t have useable rules for conducting one. To conduct one without rules would be unconstitutional, to write new rules to apply to an election already past would be unconstitutional.”
I’m still chewing through the decision, but near as I can tell that description is pretty much correct. But there are some decided weirdnesses in the “Per Curiam” opinion, whatever that means (I haven’t read the others yet). The opinion says that the non-uniformity of recount proceedures makes it unconstitional, but explicitly ignores any non-uniformity in the original count: “The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections.”
But this part:
“to write new rules to apply to an election already past would be unconstitutional.”
I don’t see in the decision. The argument seems essentially to be “time’s up”: “That statute, in turn, requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by December 12.” It took me a while to figure out what “That statute” was. I think they’re referring to 3 U.S.C. § 2 http://tinyurl.com/5wdse :
Ҥ 2. Failure to make choice on prescribed day
Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.”
So why didn’t the legislature choose the electors? Near as I can tell (it doesn’t seem to be explained in the decision), the author seems to think that the State of Florida did make a decision. I’m guessing this is what the reference to 3 U.S.C. § 5 http://tinyurl.com/6r6to is all about. It states:
“If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.”
(who writes this crap? I’ve read my share of legislation, and while some of it can be hard to follow, for the most part it uses sane grammer.)
I’ve rewritten it, according to what I think it is saying, into grammer that should hopefully be easier to follow:
“A determination concerning the appointment of any or all electors of a State shall be conclusive if all the following conditions hold:
—The State has provided by law, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State,
—Those laws shall have been enacted prior to the day fixed for the appointment of the electors,
—The means provided by law are by judicial or other methods or procedures,
—The determination shall have been made at least six days before the time fixed for the meeting of the electors, and
—The determination shall have been made pursuant to the law provided by the State on the day of the determination
Furthermore, such a determination, if it satisfies the conditions above, shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.”
The thing is, I see no analysis whatsover of why the conditions apply.
This decision is complete crap. It may not be wrong, but unless I really missed something big, it does not explain in any detail why the court came to the conclusion it did.
BTW, I should probably mention that I’m not a lawyer, not in any related profession, nor have I studied law.
Scott said:
“Yeah… see… the country wasn’t founded on the grounds that Democracy is the all important over-riding factor in a good government. It was that Liberty is.”
Oh absolutely. I’m just uncomfortable about a Constitution, as interpreted by courts as being the means by which the aim of a government and society is determined. When it comes to the specifics of the constitutional laws in the United States and Canada, I quite like them.
I think it is important to point out that the Constitution makes it pretty clear in a couple of places that questions about the presidential election are the province of Congress to clear up. It is Congress who counts the electoral votes, and Congress who decides the winner when no candidate gets a majority. Back in 1960, it was Congress who decided what to do about Hawaii’s disputed electoral votes.
In my opinion, the Supreme Court’s involvement in Bush v. Gore was inappropriate because it was a violation of separation of powers.