4950

I find that hard to believe.

4951

“Why I oughta…”

4952

Sigh.

4953

5-4, I presume? So I guess poll taxes are totes OK again now. Good to know.

4954

No, Bryer joined the majority. No idea why. They let the case proceed on the merits, but this means that they can’t vote in the August primaries.

4955
4956

Oh shit.

4957

Hang on RBG. You have literally one job.

4958

I can’t tell if we’re in one of those films by asshole movie writers that gets off “subverting the expectations” and lets the villain win at the twist near the end or not.

4960
4961

At this point RBG’s pulling off what is truly a heroic performance in terms of just toughness and perseverance.

I feel like she will be a huge loss, no matter who appoints her replacement.

Ginsburg has always been an extremely liberal justice, but her legal mind is unquestionably one of the sharpest of the 20th century. Some of her ideas about how to interpret the law differ from mine, but I do not question her ability as a jurist.

Ginsburg was the opposite side of the coin from Scalia, who I also feel was a major loss (although in his final years, he was not the same legal mind that he once was. Ginsburg likely falls into this category as well, but she still seems pretty sharp for her age, likely due to the fact she’s a woman.).

Scalia and Ginsburg were not opposite sides of the coin in terms of good/bad. I feel like they were both supremely competent jurists. Scalia was often demonized by the left, and many here, who could only perceive him through a partisan lens. And Ginsburg often receives the same treatment from the right. But the fact is, both of them will almost certainly be hailed as two of the greatest legal minds of the 20th century. Both of them had a sharpness that allowed them to cut away all the bullshit, and get to the core, fundamental elements of a case. And while they certainly represented the liberal and the conservative ends of the spectrum, their representation of such transcended the petty, bullshit partisanship that dominates politics today.

Both of them had beliefs, but they actually had consistent and logical frameworks for their beliefs, and debated them in a coherent manner. And they were friends, and they respected each other deeply, probably for that reason.

Some part of me gets sad to think that I’m not sure I’d even expect that kind of duality and friendship to arise in the our government again.

4962

The problem with Scalia is that, at some point, he became his own dogma. He quit thinking about things as much as he was thinking about how he should be thinking about things… At which point he quit being a competent jurist. (but was still a sharper guy than Thomas has ever shown himself to be).

4963

Yes, I agree with this criticism, but I also believe that it mainly shows up in the decisions he did at the very end of his long career. And honestly I think a lot of it just came from the fact that the dude was real old. When you get old, your brain just doesn’t work as well.

4964

We used to have a member who worked at the Court. It was great hearing his opinions of the justices as people.

4965

The five most-often-cited SCOTUS opinions of Antonin Scalia:

  1. he wrote the dissent in Lawrence v Texas, arguing that Texas could constitutionally outlaw homosexual behavior between consenting adults in private;

  2. he wrote the dissent in Boumediene v Bush, arguing that foreigners being held on US soil have no Constitutional right to habeas corpus;

  3. he wrote the dissent in Hamdi, arguing that while the government could in theory hold Americans without charges indefinitely, the government had not done the work necessary to authorize it;

  4. he wrote the majority opinion in Heller, that reinterpreted the right to keep and bear arms as a personal right unrelated to militias and stripping state governments of the ability to practically regulate handgun ownership and gun safety requirements at home;

  5. he wrote the dissent in Obergefell, arguing that same-sex marriage rights were a threat to American democracy.

History will surely note that he was on the wrong side of the issue in at least 4 of these 5 decisions. Fans admire his insulting rhetorical tone, but on the law and the constitution he seems to be mostly wrong. Hard to imagine how that ends up with him being one of the great legal minds of the 20th century.

4966

Well, there is a WORLD of difference between what is right and just, and what the Constitution covers, and if (as Scalia) you would hold that anything not textually in the Constitution shouldn’t be inferred, then from his perspective 4 of those 5 are accurate.

The 2nd Amendment one never made sense to me, even after reading his Heller decision. That is clearly a divergence from the text.

4967

So he argued, but he was wrong. Unless the argument is that he was somehow better at understanding the constitution than are his peers, for which there is just about zero evidence. People praise him because they like the blistering nastiness of his writing or because they like the partisan outcome. That’s it.

4968

I feel like that was one of those “don’t disturb the neighborhood” parts of common law that pop out here and there. There’s a certain unwritten principle not to shake the tree, and Heller is about not shaking the tree.

The needle he threads not particularly deftly is an implied prescription about “the people” elsewhere referenced superseding “militia” as being too restrictive a franchise. Which, yea, glosses over the main point entirely and jumps to talk about common law history of what arms and bear meant, and effects rejects the text of the 2nd for its implied function.

4969

A big thing that many folks don’t understand about Scalia’s opinions, and indeed SCOTUS rulings overall, is that it’s not generally about “doing what’s right”.

That’s not the purpose of the court.

The purpose of the court is to rule on the constitutionality of laws. To essentially ensure that the legal framework is consistent.

In many cases, we can have laws which are most definitely bad laws, with bad consequences. But it is not the court’s role to make that decision. That power is, explicitly, reserved for the legislative branch of our government.

In many cases, Scalia’s opinions (or really, some of his best cases involved some of his dissents from the majority) focused on this aspect. That the court was not presenting a legally consistent opinion. You ran into this in a case like Dickenson v. US, where Scalia rightly pointed out that the majority opinion was confused in that it was simultaneously assuming that Miranda was a constitutional requirement, while also refusing to explicitly state it as such (and the same court had previously accepted evidence in absence of miranda rights being read).

Another aspect of that dissent, was that the court was essentially placing restrictions on the legislative branch, saying that it couldn’t overrule the court’s decision on certain things. But this can get into dangerous waters, if the court starts going into areas beyond constitutional interpretation. At that point, you run into issues of the court superceding the powers of the legislative branch… and it’s being done by people who were not elected to office, and cannot be replaced.

That was a big part of Scalia’s thought process, and one which I think is valid. The answer to bad laws isn’t for the court to fix them. The answer to bad laws is to elect better legislators, and have THEM fix the bad laws. That’s how our government is supposed to work. Trying to shortcircuit that process by judicial decree is dangerous.

And if RBG dies, and is replaced by Trump, I think maybe folks may see exactly how dangerous that kind of thing can be.

Ultimately, it’s fine to disagree with Scalia. RBG did often. And both of them were great jurists. They had differences of opinion when it came to a lot of this stuff. And that’s ok. It’s also why it was good to have them both there on the court. But I really did like Scalia’s ability to find weakness or inconsistency in an argument, and highlight it. Even if we choose to accept that inconsistency as a necessary measure of governance, we should do such things with our eyes open, and aware of what we are doing.

(also, I realize RBG is not dead yet. I’m merely speaking of her in the past tense here, in the context of her relationship with Scalia.)

4970

If you’re actually using citation count, then there are better ways to analyze his legacy.

If you’re just reminiscing, then you should probably add Employment Division vs Smith:

The Court today, however, interprets the Clause to permit the government to prohibit, without justification, conduct mandated by an individual’s religious beliefs, so long as that prohibition is generally applicable… To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is “compelling”—permitting him, by virtue of his beliefs, “to become a law unto himself”, contradicts both constitutional tradition and common sense.

Bill Clinton tried to circumvent this opinion by signing the Religious Freedom Restoration Act, and now the SCOTUS is proving that you should be careful what you wish for.

And how can we forget Brown vs Entertainment Merchants Association?

Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection.