Given Scalia's originalism, it would have been better to ask for a comprehensive catalog of the sexual positions he's employed, or whether he's ever given or received oral sex, as those behaviors have been classified as sodomy in the past. (That sentence is awkwardly constructed and includes faulty parallelism. I'm tired.)
I am shocked, shocked, to hear about this.
That is awesome. Whoever asked him that is my new hero. Scalia thinks it's not ok to ask about what he does in his bedroom, but it is ok to legislate about it? Please.
I don't know; from my one philosophy of law class, it appears that traditionally, legal theorists draw a distinction between how people act, and how people believe they should act. That is, the basis of a legal ruling is not consistency with one's own behavior.
Of course, it is NYU, and in Dworkin's legal theory, criminalizing sodomy is unsupportable.
Also, I didn't read Scalia's "vitrolic dissent," so perhaps there was a reason, of which I'm unaware, for asking the question.
The dissent for the curious. I haven't read it myself, just excerpts.
the basis of a legal ruling is not consistency with one's own behavior.
The issue isn't whether he actually does or does not sodomize his wife; it's that he thinks being asked is out of bounds, but prohibiting by law is not.
He thinks prohibiting by law is constitutional. He's wrong. In principle, whether or not he thinks it's wise policy is irrelevant.
Ok, yes, that is good. Scalia supports measures whch require investigations into people's sex lives, but believes it's out of bounds to discuss his own.
I'm browsing through the decision, and holy crap, this is some legal theory I've never read.
Today, however, the widespread opposition to Bowers, a decision resolving an issue as “intensely divisive” as the issue in Roe, is offered as a reason in favor of overruling it.
That is, a case coming up (after a mere 17 years) because of widespread opposition is, in itself, a reason to decide against the new case. I suppose there could be something of Mill in here, not allowing the tyranny of the majority and all, but to reject it prima facie seems too strong.
There's always a presumption against over ruling your Court's previous decisions. It's also fairly clear that a few members of the Casey majority upheld Roe v. Wade for similar reasons. That is, they actually thought Roe v. Wade was wrongly decided, but that now it would be even worse to overturn it.
Reasoning, sect II. The 14th amendment has been construed so that only deeply fundamental rights may be inviolable. Other rights may be limited, as long as there is due process of law. But for a right to be fundamental, it must be "deeply rooted in this nation's history and tradition." HA! Is that a joke? Because we are talking about the 14th amendment here.
I'm having plenty more quibbles with this, but I'll spare you all and just rage at my computer screen.
He certainly should of answered considering his views on other people's sodomizing ways. Now, if the question was, "How long has it been since I sodomized your wife," I could understand the outrage.
But for a right to be fundamental, it must be "deeply rooted in this nation's history and tradition." HA! Is that a joke? Because we are talking about the 14th amendment here.
Nice, Michael.
I think it's awesome, too. But it's not awesome b/c the questioner caught Scalia being hypocritical as a matter of jurisprudence; as w/d says, it's completely reasonable to think that Congress is allowed to make stupid silly laws.
It's awesome b/c Scalia is a jackass. For a long time he held a spot as every (male) lib's secret Republican crush b/c he was smart, wrote well and clearly, and seemed principled. Then came Bush v. Gore, and a lot of minds changed about "principled." It's worthwhile to call him a jackass in public in a place that formerly was probably substantially more deferential to him. It's worth making clear that he's not smart, well-written, and principled so much as smart, well-written, and on the Other Side. It's worth saying that big things are afoot, his support of the revanchist southerners was wrong, and fuck comity. They say public hatred of LBJ drove him to bed near the end of his term; I wouldn't mind if Scalia took some bed rest, too.
the "deeply rooted in this nation's history and tradition" requirement is such judicial laziness. nevermind the fact that they apply it in such an ad hoc way that it has become virtually meaningless. tragically, the judges don't seem to want to give up the ghost on this history and tradition crap even though it makes for shitty-ass policy.
now, why does scalia not want to answer questions about whether or not he sodomizes his wife? oh, maybe cause it's, you know, a private matter. but shit, apparently there's no right to privacy, so maybe we should just tell him to produce all pertinent buttplugs at once.
Does anyone think that Scalia thinks anti-sodomy laws are constitutional, but personally opposes them? 'Cause I think it's pretty goddamn clear he supports them.
SCMT is right that it's worthwhile pointing out to Scalia that he's been a jackass. But there were already a fairly good amount of protests against Scalia which he most certainly noticed, including one which stood the window of a room where he was being honored and shouted anti-him throughout the ceremony. But this goes someaht beyond that by going after him in a Q & A, and rather than asking him a question designed to challenge his holding in a particular case (there's one from his early career on te Court, on fairly technical issues, which I just can't stand) but just to say something to him that he'll clearly take as insulting and will tend to shut down discussion.
I agree with SCMT that it is not inconsistent to both believe that sodomy bans are constitutional and to personally oppose such bans, so this is really about attcking Scalia for being a jackass. (Sadly, I don't think he gives a damn.)
Still, I think it's a valid and important question. One way of thinking about why sodomy should be protected as a right is that it is a fundamental assumption of our society that no one should have to answer questions like "Do you sodomize your wife?" Scalia believes that police investigations of whether people are committing sodomy are constitutional, and therefore compatible with our fundamental values and traditions: if he believes that with respect to other people, he should be faced with the same question himself. (I don't have much hope that the experience will educate Scalia; I'm hoping for the audience member who thinks "I can't believe they asked that! Prying into such private matters is inconsistent with the most fundamental values of our society! Hey, wait a minute....")
And I didn't realize you were NYU Law -- I'm class of '99. Nice place, isn't it?
There's a bar near NYU where a friend of my sister works, it's really good. I can't remember what it's called but it's also near unto Babbo.
Another thing that's really good is A Lyke Wake Dirge.
There's a bar near NYU where a friend of my sister works, it's really good.
That narrows it down. Do you remember that episode of Gilligan's Island, you know, the one where they almost get off the island?
It is nice, but I'm getting towards the end of my 1L year, so it isn't. Also, I have my ICWA oral argument in a couple of hours, so I'm really looking forwards to having that out of the way.
My last post before this was full of typos. Sorry.
If you ever want advice about job-hunting or anything, feel free to email. I can't check my hotmail from work, but I do look at it every few days.
Re: 15
But it's not enough that he thinks anti-sodomy laws are unconstitutional and good policy, he also has to think the first because of the second. There's a good chance that is the case, but it's the important question to be asking.
To make the question an appropriate attack on his position, Scalia just has to think that public inquiry into one's consensual sodomy habits is not fundamentally offensive to our society.
If he thinks sodomy bans are constitutional, he thinks public inquiry into consensual sodomy is acceptable. If he thinks public inquiry into consensual sodomy is acceptable, then he can darn well get inquired into.
That sounds pretty much right to me, and I'm really not enjoying this defending Scalia position. On the other hand, he thinks state inquiry into sodomy is acceptable because its acceptable for the community to enact "butt sex is icky!" (I think those are Scalia's terms) into law, and try to eliminate it. So if someone in power believes that it's legitimate to use state power to eliminate X, and acts on that belief, anytime they're in a public forum they can be asked if they participate in X?
My instinct for situations like this is to try thinking of an analogous situation to check my ethical view against, but I'm having trouble on this one.
Actually, the question should be "When did you stop sodomizing your wife"?
Perhaps a more approriate way to make the same point would be to ask Scalia if he believes the state should have the right to enter his home to ensure that he is not sodomizing his wife.
If he thinks sodomy bans are constitutional, he thinks public inquiry into consensual sodomy is acceptable
At long last, I rise to the bait. Let's see: is everything that is constitutional a good idea? Is a supreme court justice's job to determine if a law is constiutional, or to decide if a law is a good idea?
Most of us don't believe, I imagine, that there's a fact of the matter to be discovered in the constitution (particularly in cases like this), so we assume that Scalia's vituperative defense of sodomy bans is rooted, at least in part, in his personal opposition to sodomy. That's the frame in which the question to him is a good one. Of course, you're correct that in principle we can't necessarily infer support for a policy from someone who holds that policy constitutional.
baa, I've been arguing with her on this one, but I think you have LB's position wrong. See her 18, accord 13.
Kids these days can't get anything right.
You are supposed to ask "Do you have any nude photos of your wife?" and then when he responds "No" you ask "Would you like to buy some?"
Now, what is this new-fangled sodomy that everybody is talking about?
What if he says "yes"? What's your comeback then?
At long last, I rise to the bait.
That's a fair question, baa, but I think the one that is more germane is the legal status of sodomy in Scalia's state of residence, which I think is Virginia (though I may be mistaken on that). As I understand it, Virginia's sodomy law was struck down by the SCOTUS as a result of Lawrence v Texas, meaning that the good justice may enter his wife in whatever manner the two deem appropriate.
Scalia's dissent in that case can be found here, and the relevant passage is:
Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts--or, for that matter, display any moral disapprobation of them--than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change. It is indeed true that "later generations can see that laws once thought necessary and proper in fact serve only to oppress," ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.
So, y'know, if we're going to be fair about it, Scalia is probably on solid ground deeming the question out of bounds. Doesn't make it any less funny, though.