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More Scalia


Mark Tushnet is making sense:

Now, to Justice Scalia’s performance in the ACA arguments: For my money, the “Jack Benny” exchange in the Medicaid expansion argument is simply embarrassing, another example of Justice Scalia losing control of his own cleverness – to the point where the Chief Justice had to step in and say, “That’s enough frivolity for a while,” but only after Justice Scalia realized that he had gotten completely off track with his own intervention (he was playing around with “your life” and “your wife,” but at the very end, after the Chief Justice tried to get him to stop with, “Let’s leave the wife out of this,” Justice Scalia said, “I’m talking about my life,” which completely undermines the point, such as it was, that he was trying to make).

In the severability argument, I was struck by where the “clever” Eighth Amendment argument went. Justice Scalia asked, “What happened to the Eighth Amendment? You really want us to go through these 2,700 pages? And do you really expect the Court to do that? [Laughter] Or do you expect us to – to give this function to our law clerks?” A bit later Justice Kagan picked up on the “law clerk” reference: “For some people, we look only at the text. It should be easy for Justice Scalia’s clerks.” The transcript notes “Laughter” here as well. What’s interesting to me is Justice Scalia’s offended response: “I don’t care whether it’s easy for my clerks. I care whether it’s easy for me. [Laughter.]” A person in greater control would have let the sting pass.

The final notable feature of Justice Scalia’s interventions in the argument – again, I’m not saying that these were pervasive, only that they occurred often enough to be noteworthy – is that he repeatedly went for sound-bites reproducing common conservative talk-radio lines. In the mandate argument, after the Chief Justice and Justice Alito had formulated serious questions about the reach of the government’s arguments (for Roberts the cell-phone question, for Alito the burial insurance one, each of which gets in different ways at the “moral hazard/adverse selection” issue at the heart of the government’s argument), Justice Scalia lowered the level of the discussion by asking the “broccoli” question, which was at that point quite silly (and then reverted to the point, no better when repeated, asking about mandatory car purchases). In the severability argument Justice Scalia felt compelled to introduce a serious question by invoking “the corn husker kickback,” a provision not included in the statute (and, to make the question coherent, he had to introduce a nonexistent “constitutional proscription of venality”). Again, it’s trivially easy to come up with an example from the statute that raises the same question (Justice Breyer did it at, as usual, great length). And, finally, he went for “The President said it wasn’t a tax” line – to which the Solicitor General had the good sense not to invoke Abraham Lincoln on how many legs a horse has.

I added a link to the post below, but in case you missed it, also see Pierce.

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  • Joe

    Emily Bazelon on Colbert is worth a shout-out too. Like his Stevens interview, it was more productive than many “serious” cable legal analysis.

  • Best argument I’ve seen in years against televising Supreme Court proceedings.

    • c u n d gulag

      You must mean “FOR,” I’m sure!

      When there’s nothing else to watch on TV except “Judge Judy,” you can turn to “Judge Antonin’s Antic’s,” “Clarence Thomas’s Daily Tribute To Silent Movie Clowns” “The John Roberts Corporate Power Hour,” “Waffling To the Right, With Anthony Kennedy,” or “The Anti-Employee/Prisoner Hour – With Host, “Throw ‘Em In Da Slammer” Sammy Alito?”

  • TT

    Scalia is George Will in black robes, meaning that he’s a Republican first and a conservative a distant third if at all. (He’s a jackass second.) As with Will, principle for Scalia takes a back seat to doing right by the Party, even if it means shameslessly abandoning and/or shifting positions he once held with equally arrogant certainty–and finding some obscure “textualist” justification that only he knows about for doing so.

  • rea

    The hell of it is, Scalia is the Court’s 6th most liberal vote.

    • David Hunt

      I remember I own personal horror when I came to the same conclusion a year or two ago. I mentally framed it as him being only the 4th most conservative Justice, which I think makes it feel even worse.

    • Scott Lemieux

      Yup. Sad, but true. If the Republicans win in 2000 he could be the median vote, or one step to the left of the median.

      • Furious Jorge


        • Ian

          Robotic Austrian accent: “Are you Sandra Day O’Connor?”

        • Scott Lemieux

          2012. One of those years there.

    • andrewsomething

      Yup. Remember just days ago when many were predicting a 7-2 decision with Scalia on the side of upholding the law? I always wondered why people seemingly had such high regard for his ability to make a principled decision.

  • R Johnston

    Scalia is congenitally incapable of offering an actual legal argument. What he offers is the antithesis of law, whimsical sociopathy unbound either by legal text or principle or any kind. He’s always been a charlatan and an embarrassment. Until the “judiciary” is purged of Scalia and his ilk it is not a judiciary at all.

    • Richard

      Let me disagree. I’ve seen Scalia speak twice and he’s one of the best public speakers I’ve ever heard – articulate, engaging, witty, not pedantic. And I’ve read many an oral argument where his questions are pertinent, probing and everything that should be expected of a Supreme Court justice.

      That said, his “performance” in the ACA argument was an embarassment. A preening would be comedian who had already made up his mind how to vote and wanted to get a few cheap laughs at the expense of good attorneys dealing with difficult issues.

      • joe from Lowell

        And I’ve read many an oral argument where his questions are pertinent, probing and everything that should be expected of a Supreme Court justice.

        Political geeks like us only pay attention to the courts when it comes to politically-charges cases, but those are a small minority.

        That small minority, however, seems to be what brings out the worse in Scalia. He clearly could do a better job, both intellectually and legally, in those cases, if he wanted to. He just doesn’t want to.

        • Richard

          I agree. On the other hand, when he gives talks to lawyers and to gatherings of civic leaders, as on the two occasions I’ve seen him, he likes the interplay with the audience, even likes to make fun of himself and is fully engaged without being overbearing or condescending

      • L2P

        He really should recuse himself from any politically-charged case. He’s not nearly this bad on run-of-the-mill stuff, even though he remains a little bit idealogical.

  • Jon Pennington

    Scalia is witty and erudite as long as nobody he considers inferior tries to challenge him. When that happens, he becomes the quintessential bully who can dish it out, but can’t take it.

    • R Johnston

      Scalia is never witty nor ever erudite, but I think that means we agree.

  • Tom
    • Anonymous

      So what? Nothing you can do about him sitting on SCOTUS for decades more…

  • Anonymous

    Scalia is going to be on the Supreme Court for a long, long, loooooong time, living to a ripe old age with some of the best healthcare money can buy.

    And there’s nothing you can fucking do about it.

  • joe from Lowell

    “The dumb broad, the old broad, the pushy broad, that dork, Justice Kennedy, Justice Alito, Justice Roberts (grrr….), Justice Thomas, and myself.”

    • joe from Lowell

      Huh – that was supposed to be a reply to Tom.

    • Joe

      Now now. He doesn’t like that turncoat Kennedy (the reason why we can’t outlaw masturbation) enough to use his real name.

  • Uncle Kvetch

    Scalia Unable To Name All 9 Supreme Court Justices

    So what?

    Oh my. My day, week, and month have just been made. This beats any internet tradition I’m aware of by a mile.

    • Anonymous

      Lifetime terms, you little liberal shit. The Reagan Revolution rolls on.

      • DrDick

        Wrong again, as usual, asshat. I quote for the Constitution:

        The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior,

        Not lifetime, but good behavior and Scalia has a history of bad judicial behavior, including here.

        • Richard

          Unfortunately, the decision that a judge did not exhibit good behavior, can only be made by the Senate in an impeachment proceeding and I believe that, from the beginning of the republic until now, less than ten federal judges have ever been removed from office (and all those instances were for criminal conduct). Only one Supreme Court Justice has ever been impeached and he was acquitted.

      • Uncle Kvetch

        Your “So what?” was in response to a headline from The Onion.

        Too dumb to click the link.


      • mds

        The Reagan Revolution rolls on.

        … says someone who’s cheering for the judicial overturn of a law supported by Ronald Reagan’s Solicitor General. I’m beginning to doubt that he’s arguing in good faith.

    • joe from Lowell

      I wonder what the “lifetime” of a 76-year-old fat guy with anger issues will turn out to be.

      • Anonymous

        With the best medical care money can buy? Well into his 90s, just like most SCOTUS justices.

        • mds

          That’s “the best medical care provided at taxpayer expense by the Federal Employees Health Benefits Program,” then the best medical care money can buy. Do try to keep up.

          • DrDick

            “Which he wants to deny to the rest of America” also needs to be added.

  • Davis X. Machina

    Maybe it’s just me, but I’m not sure that ‘Suck on it, libz’ is, as a theory, adequate to the task of supporting a fully-fleshed-out jurisprudence.

    • Steve LaBonne

      You wouldn’t think it would be adequate to adequate to the task of supporting a fully-fleshed-out political party platform, either, but the Republicans evidently think that’s not a problem.

      • Davis X. Machina

        Now if Edmund Burke, in his address to the electors of Bristol, had only said ‘Suck on it, libz!’ — well, that would be a different story.

    • c u n d gulag

      Yes, but “Get over it!” is a fully-fleshed-out defense for any decision that goes against Liberals and Progressives.

      • Hogan

        Even a decision that hasn’t been made yet.

    • R Johnston

      “Conservatives” don’t do jurisprudence so that’s not an issue for them. Law and principle are things of the past to “conservatives.” To them courts are tools for propagating “suck on it, libz” and serve no other purpose.

  • UserGoogol

    It sure would be nice if Scalia decided to just retire for real. I mean hey, he’s an old guy, he ought to enjoy himself.

    Although our favorite anonymous poster is probably right that Scalia will probably stay in the seat until he’s physically incapable of doing so, and he’ll continue to hold onto life until the Glorious Reagan Revolution has crushed every last godless liberal socialist.

    • avoidswork

      It’s the doctorine of Bastards live Forever. See, for example, Richard B. Cheney.

  • Hob

    Every time I see something like from Scalia, the first thing I think is that he’s developing some kind of dementia. Often before there’s significant memory loss, one of the early symptoms is a rambling and disinhibited conversational style full of inappropriate remarks, casual insults, and weird pointless humor.

    But then I remember he’s always been like this.

    • Hob

      (“something like” = “something like this”)

  • Westend

    He will embarrass the handful of intellectual conservatives in the legal profession with his antics. His failure to retire gracefully will threaten the intellectual conservative establishment. He will ultimately be a detriment to conservative ideology and the Republican Party, if he is not already. It would behoove the right-wing establishment to entice Justice Scalia to retire as soon as a Republican enters the White House. Until then, Democrats can watch in glee as he “tears the conservative house down” with his antics.

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