A question from the other thread: Has Antonin Scalia always been like this, and all the praise for his serious thinking about originalism just so much chaff thrown up by the Federalist Society that was then uncritically repeated by the Very Serious? Because, holy crap, some of the things that people are cherry-picking from his opinions this term read like Ann Alt/house screeds, and even as someone who doesn't know much about the law, I can tell that he's entirely willing to contradict himself and his supposed judicial philosophy.
I commented back there, too, but I do think he's always been like this, but it's been getting more obvious. It's particularly annoying in some business case and you're trying to derive an actual legal rule from one of his attempts at a pithy turn of phrase. One of my law professors (a right winger who had known him for a long time) said, once, that Scalia is a journalist, not a scholar, which seems about right.
2: I don't think the journalists want him either.
Scalia has always been like this, but it isn't just the Federalist Society talking about what a deep thinker he is. That's a standard media trope.
The difference, nowadays, is that he's often in the majority. Since his opinions now have consequences, it's tougher to paper over what a right-wing theocratic asshole he is.
I would assume also that the longer he's there, the more opportunity there is for his arbitrary policy preferences dressed up with originalist bullshit to conflict obviously with his previously-issued arbitrary policy preferences dressed up with originalist bullshit.
For anyone who suspects that Scalia was, at some time, something other than a hack, I offer his 1987 dissent in Edwards v. Aguillard in which he is offended that seven of his fellow justices regarded the Louisiana legislature as having acted on religious motives, even though the legislature said it was doing no such thing.
Senator Keith repeatedly and vehemently denied that his purpose was to advance a particular religious doctrine. At the outset of the first hearing on the legislation, he testified: "We are not going to say today that you should have some kind of religious instructions in our schools. ... We are not talking about religion today.... I am not proposing that we take the Bible in each science class and read the first chapter of Genesis." 1 id., at E-35. At a later hearing, Senator Keith stressed: "[T]o ... teach religion and disguise it as creationism ... is not my intent. My intent is to see to it that our textbooks are not censored." Id., at E-280. He made many similar statements throughout the hearings. See, e.g., id. at E-41; id., at E-282; id., at E-310; id., at E-417; see also id., at E-44 (Boudreaux); id., at E-80 (Kalivoda).
He always reached the right wing outcome, and always enjoyed a turn of phrase, but his adoption of right wing blogosphere talking points is new. In the past he tended to go off the rails in more original ways, as in the Lawerence v Texas dissent where he argued that the ruling against sodocmy laws would lead to such horribles as overturning anti-masturbation laws also.
I see two possibilities: either he recently discovered the right wing blogosphere and fell in love with it, or he's getting stuff from a clerk.
1.last: even as someone who doesn't know much about the law, I can tell that he's entirely willing to contradict himself and his supposed judicial philosophy.
I've found the upcoming decision on healthcare reform so frightening in prospect that I've kept the whole thing at arm's length, but there's something about a prior decision that Scalia endorsed that might could be reconsidered. ? Uh, the Wickert decision?
Even as I type this my brain runs screaming from looking into it enough to verify the business about what I seem to recall is Wickert. Anyway, interpretation of the commerce clause is at stake, longer term, which is just an appalling prospect. I find it very difficult to keep thoughts about SC impeachment at bay.
I've been led to believe that each Justice is sort of a cottage industry employing various "clerks" to research things and write things. I don't know anything about the law but I would guess that Scalia's clerks are all a bunch of world-class smirking assholes, which must affect his notions of what sort of behavior is acceptable.
I wondered if Scalia's wife might be a conduit as with Thomas, and it looks very possible - she's on the board of a crisis pregnancy center group.
Part of the Scalia Myth came from the fact (I think) that he always hires one liberal clerk.
Apologies for my freakout in 10: the notion of Scalia's overturning precedent came from this TPM write-up on his new book.
The case in question is Wickard.
13: IANAL, but I thought I'd heard he doesn't do that any more. I know one of the token liberal clerks he hired back in the day, and she is excruciatingly insufferable for the centrist group of dems I know her through. Even the former Lieberman staffer is much more affable.
Which flaming liberal wrote this: "As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit." Haha, it's Tony himself today, worrying about all those poor Arizonans who can't defend themselves against the invading hordes! If this were about whether to fry someone who was proven innocent after their appeals clock had run out, well, Scalia would be the first to point out that dry legalities make excellent kindling.
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He always reached the right wing outcome, ...
This is not true. See for example the flag burning case. There are numerous others.
Thomas is more honest right winger.
I'm worried about the ACA. There was some guy at my reunion who works for an organization Sandra Day O'Connor works with, and he said you can see how much the direction pai s her. She doesn't say anything, because she does still work as a judge. I'm pretty sure that she would have upheld large portions of the ACA. She retired to take care of her husband, and he died shortly after.
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Lawyers: I e-mailed Will about this, but he hasn't answered.
Do you think that if someone files for divorce using his parents address, because he had been out of the country and didn't have a fixed address that he could get disbarred? My cousin's wife is in NY and they agreed to file in CO. He got a job in DC and wanted to refile in VA. The judge in CO made him pay her attorney's fees (hired by her rich boyfriend), and now the divorce lawyer is, apparently, hoping to get him disbarred.
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Without having read the ruling, I have to say it sounds better than I was expecting. Leaving the door open for a racial profiling suit, especially with a DOJ that actually has some enforcement teeth these days, is no small thing.
Of course, in the short term we can expect pretextual arrests to spike.*
*In case anyone wants actual data to support this claim, let me present to you Irving, Texas. The before-and-after arrest stats for misdemeanor "on view" arrests (i.e., the things a police officer can arrest you for on just their say-so, like peeing in public) spiked sharply for Hispanics but not for white or black non-Hispanics in the immediate aftermath of a local-police-enforce-immigration-laws policy change.
Law enforcement: the diuretic for Hispanic people.
I think Scalia used to work harder at it than he does now, and the "get offa my lawn" element was at least a little better concealed. He's always been a bit like this, but I don't think he's always been Mel Gibson in a black dress to quite this extent.
Alito already a really odious little prick. Just imagine what he'll be in 20 years.
How does this ruling conflict with Obama's executive order for people under 30? I mean, who enforces executive orders when Arizona keeps deporting people under 30?
23: Not sure I understand your question. If the AZ police pick up an undocumented kid who is eligible for "deferred action" (the technical name for the new Obama policy), s/he can request it when in immigration court proceedings or by calling a DHS hotline. I suppose there's always the danger that AZ police will just randomly deport them without calling the feds, but I don't have any idea how often that tends to happen.
Alternatively, if the kid is eligible, and hasn't been picked up by the police, s/he can apply for deferred action* and get a work permit, which will then (presto chango!) make him/her "documented" enough to not get in (long-term) trouble with AZ law enforcement.
*Not yet; the affirmative application process won't be in place until August 15 or so.
Although Buck's already talked to a guy at his gym who has talked to a lawyer about getting an immediate application in -- he thinks this is going to be lifechanging, in terms of being able to work legally.
24: I suppose there's always the danger that AZ police will just randomly deport them without calling the feds
Does "deport" here mean just escort them bodily back over the border? Otherwise I'm a little confused: I thought deportation was an official procedure that only the feds were capable of. The AZ law, I thought, never gave the AZ police deportation authority, just -- just! -- the ability to demand papers, to bring criminal suit against undocumented people working, and so on. For deportation they'd still have to be referred to the feds.
26: Yeah, your thinking sounds right to me.
26: Yeah, your thinking sounds right to me.
Although Buck's already talked to a guy at his gym who has talked to a lawyer about getting an immediate application in -- he thinks this is going to be lifechanging, in terms of being able to work legally.
ACK! Hopefully he talked to a reputable lawyer and not one of the snake-oil salesmen who have come out of the woodwork promising people to get their applications in "early" or at the front of the line if they submit now. There is NO APPLICATION AVAILABLE YET and any lawyer or notario who takes people's money now is very, very likely to be ripping them off.
I will tell Buck to mention it the next time he sees him. I did think it was a little fast for there to be an application process in place, and it is the kind of neighborhood where shady immigration lawyers thrive. Thanks for the heads up.
26: You're right legally (mostly). The feds are theoretically (and mostly practically) in charge of deportation.
However, there are consistent reports of local law enforcement taking it upon themselves to deport individuals. These are almost always disavowed as not being official policy, yet somehow they still keep happening.
31: Yes, I've heard that. The law itself, though, was mostly a means for gathering up vastly more candidates for deportation, which is of course not a small thing at all.
Yeah, probably best to call the New York Immigration Coalition (www.thenyic.org, 212-627-2227) for referrals.
"The AZ law, I thought, never gave the AZ police deportation authority"
An oversight, I'm sure that will be in the next version the AZ legislature passes.
I think Roberts is worse than Scalia, actually. Scalia we already know is a bit (or a lot) of a crazy ideologue: that's his schtick, after all. But Roberts has a knack for coming across as blandly inoffensive and mildly genial, and therefore as 'reasonable;' and then he signs on for the most ridiculous and egregious forms of wingnuttery.
I believe it's time (long since time) to revisit the notion of lifetime tenure for Supreme Court justices. Back in the day, back when the US Constitution was written and ratified, the average life expectancy was about 15 to 20 years less than today's statistical norm. The idea was: you'd appoint someone who was about 55 to 57, and he'd kick off, shuffle off this mortal coil, by about the age of 66 to 67. Today, the appointments tend to be a bit younger, and can expect to live a whole lot longer. 20 to 30 (or more!) years of more power than Charles I ever dreamed of is just too much power to place in the hands of an appointed (so: not elected) body...
And how many more 5-4 decisions on contentious, contested issues can the Court hand down before it loses all vestiges of ('sober second thought,' 'above the fray of mere politics') legitimacy? Because 5-4 as more than the odd quirk, as what we are now expecting as a matter of course, looks like politics, looks like deep divisions on matters ideological, looks like there are no steady, agreed-upon guiding principles to overcome the political divisions.
The before-and-after arrest stats for misdemeanor "on view" arrests (i.e., the things a police officer can arrest you for on just their say-so, like peeing in public)
"On view" isn't a category of offense, it just means a self generated case rather than responding to a dispatched call. It's the difference between someone calling in that a guy is breaking into cars and giving a location and description and me driving around the neighborhood and happening upon a guy breaking into a car.
However, there are consistent reports of local law enforcement taking it upon themselves to deport individuals. These are almost always disavowed as not being official policy, yet somehow they still keep happening.
Are we talking about requests for the feds to check someone's status or local PD's actually driving guys across the border? Because I've never heard of the latter being done. But we do have the option of requesting the local ICE guys check the status of someone we book into jail.
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I commented back there, too, but I do think he's always been like this, but it's been getting more obvious. ...
There is a theory floating around that Scalia is grumpier than usual because the Obamacare case didn't come out the way he wanted.
... With that in mind, here's your first helping of pessmistic speculation: Real Clear Politics' sharp analyst, Sean Trende, suggests the caustic tone of Justice Scalia's decision in the Arizona case might be something of a tell. Trende tweets that a former Scalia clerk has pointed out the pattern that sometimes the justice tips his hand about other major forthcoming decisions by venting frustration in advance. ...
36
... local PD's actually driving guys across the border? Because I've never heard of the latter being done. ...
Well you would only expect this to occur near the border. I have heard of PD's "deporting" minor nuisances out of their local jurisdiction.
Used to call it Greyhound therapy when the guy involved had a mental illness.
There's another thory going around about work distribution. It's apparently looking like Roberts has to be the author of the ACA decision, which means nothing good.
Toobin thinks that "alas" Nino is "just being Nino."
35.1: But Roberts has a knack for coming across as blandly inoffensive and mildly genial, and therefore as 'reasonable;' and then he signs on for the most ridiculous and egregious forms of wingnuttery.
I do think Roberts in his presumptive anodynity is potentially more dangerous than Scalia--and at a minimum is likely to be around on the Court longer so can do more mischief. The utterly stupid "balls and strikes" analogy, which was just the kind of pablum to placate the chattering classes (George Will probably still sports wood every time he thinks of it), set the tone for the whole unfolding disaster of the Roberts court. A stupid analogy*, but these are not stupid men, they are disingenuous political hacks and ideologues. And there are far too many of them pre-loaded and ready to be called in to action if you need to run a witch hunt against a Democratic president or shore up the base on the judiciary.
*A discussion of past uses of the umpire analogy with regard to judges. Basically, it has been used as a negative example even for trial judges, much less for freaking Supreme Court justices.
40
There's another thory going around about work distribution. It's apparently looking like Roberts has to be the author of the ACA decision, which means nothing good.
Well it could mean Kennedy decided to vote with the liberals and then Roberts joined him and assigned himself the opinion in an attempt to limit the damage. This would not explain what Ginsburg (also low on opinions) is doing. So she could be writing a dissent. But she didn't seem all that upset about how the case was going. So Roberts could be writing for a majority throwing out the mandate and Ginsberg for a majority severing the manadate from the rest of the law.
35: The argument about life spans in the eighteenth century is a pet peeve of mine. It's simply not true that the authors of the Constitution assumed shorter terms of office than we have today. The difference in life spans between the eighteenth century and now was mostly caused by much higher infant and child mortality, and a fair amount of childbirth mortality for women. Poor people also often suffered from malnutrition and various other maladies which shortened lifespans. A potential Supreme Court justice was a rich white guy who had reached middle age, and his lifespan wasn't much different from what we have today. Benjamin Franklin was literally in the room when the Constituiton was ratified, at the age of 84. the youngest delegates a the Convention were under 30, so it's fair to assume that the folksi n the room sassumed that a political career could last more than 50 years. They set mimimum ages for Congressman, Senator, and President at 25, 30, and 35. The founders also were aware that Louis XIV had held power until age 77. There's nothing wrong with mandatory retirement or fixed terms for judges, but it's not what the founders wanted.
44: Yes, very similar to the the BS that the Social Security terrorists throw around with regard to life expectancy and "entitlements".
Since the 1990s, all English and Scottish judges have been obliged to retire at 70 (75 if appointed before 1995). The introduction of this rule did not lead to blood flowing in the streets, at least not more than usual.
31: Wait, that's not possible. "Deportation" doesn't mean "made you leave." It's a whole giant legal process with appeals and court dates and everything, and there is no way that Arizona is doing that on the sly. If what they're doing is driving people over the board and ditching them, that deserves a very different name (and probably screws things up for federal enforcement.)
47: Speaking for myself, I have few qualms about mandatory retirement age and even less with regard to term limits for judges, but I don't think that argument on the intent of the Founders holds any water.
A potential Supreme Court justice was a rich white guy who had reached middle age, and his lifespan wasn't much different from what we have today.
I don't think this is true. Today's average is about 78 for men? Even 50 years ago, it was probably closer to 70. In the late eighteenth century, for rich white guys, probably about 65-70. Take a look at the dates for the men who signed the Constitution. Yes, a few lived into their 80s and 90s, but many died in their late 50s and early to mid-60s.
Factoring in infant and childhood mortality (for late 18th c.) probably gives an average of 35 or something. And it's true that this is highly misleading: if a person could make it to age 5, he had a pretty decent chance of living into old age. But the average life span was shorter, even for wealthy white guys. It was unusual to make it to 84 (as Ben Franklin did). For rich white people today, 84 or higher is no longer an outlier.
50: I think you're right on this. I know in my own family, men didn't live past 70 before angioplasty.
Yeah, living to over 80 was not uncommon but much less common than today.
1850 life expectancy for white males age 20: 40.1 (more) years.
Still, out of the 5 justices appointed in 1789, John Jay lived to 83 (though he left the court much earlier), and William Cushing to 78.
Law enforcement: the diuretic for Hispanic people.
Preëmptive arrests: the diaeresis for Hispanic people?
Combining threads, Justice Scalia has always had a certain abrasiveness that some in the Village mistakenly think is principle. The principle that the goddam hippies must be wrong. (As JBS notes, he does not adhere, in all cases, even to this principle.)
"On view" isn't a category of offense, it just means a self generated case rather than responding to a dispatched call.
Correct, the category of offense was misdemeanors (specifically, Class C misdemeanors, a very low level).
The reason that I specified that the cases studied were "on-view" arrests is because when you're trying to analyze potential racial profiling, you want to isolate factors and look as closely as possible at the officer's behavior, rather than muddy the waters with witness reports.
Hope that makes sense. If anyone wants to read the underlying study, pages 4-5 of the PDF are specifically focused on this question.