Sex lives of SCOTUS justices

SL

Back in 2004, in the wake of Lawrence v. Texas, a recently out of the closet gay NYU law student asked Antonin Scalia a tough question at a semi-private forum where Scalia was discussing the decision.

Naturally in the hierarchically-obsessed world of legal academia this display of lese-majesty occasioned much outrage among the powers that be — which is to say it was an effective use of political theater to make a point about the intersection between the personal and political.

In any case, demands that judges not be “biased” remain largely incoherent and meaningless. Judges can’t avoid bias because bias is inherent to judging — a judge has to be biased toward some legal/political positions and against others simply to perform the act of judging. In other words, asking a judge not to be biased makes no more sense than asking a politician not to be “partisan.”

45 comments on this post.
  1. Jameson Quinn:

    Do you, Paul, sodomize your wife?

  2. rea:

    See, Paul thinks there is a right to privacy, so he’s entitled to resent this question.

  3. Njorl:

    Paul’s advantage is that he can, with all logical consistency, claim that it is none of your business.

    Scalia can’t.

  4. Bill Altreuter:

    Some Supreme Court Justices eat snails, others eat oysters.

  5. Rick Massimo:

    In any case, demands that judges not be “biased” remain largely incoherent and meaningless. … In other words, asking a judge not to be biased makes no more sense than asking a politician not to be “partisan.”

    Whenever a conservative justice is in a confirmation hearing, they make being a judge sound like a matter of pulling a law book off the shelf and doing what it says – a simple clerical job, really.

  6. Cody:

    They can answer this way because they have no qualms about lying.

    I’m sure (I hope) they know it’s not this simple, but they can’t express their actual views or they would never get confirmed.

  7. rea:

    demands that judges not be “biased” remain largely incoherent and meaningless

    Well, in the law, “bias” on the part of the judge does not mean (and cannot mean) “holds an opinion as to what the controlling law is.”

    It’s more like, “holds a relationship with a party or attorney that calls the judge’s impartiality into question.”

  8. Bloix:

    “demands that judges not be “biased” remain largely incoherent and meaningless.”

    I disagree with this. There are established principles of judging that are independent of individual judges and their social and political views. The rules can be very complex. Some judges apply them in a technically proficient manner, and some don’t.

    But some judges simply don’t care about technical competence. Their goal is to reach results that will further their political and social views, and to use the rules as a more-or-less transparent fig leaf to cover up their preconceived decisions.

    It’s true that some cases, particularly at the Supreme Court level, are under-determined. The law will permit more than one outcome, and therefore a competent and honest jurist has some freedom to choose among competing outcomes.

    But “more than one outcome” is not the same as “any outcome.” A judge who works to find ways around judicial principles to reach a predetermined result, instead of following them to determine a proper result, is a biased judge.

    In our era, the Supreme Court has been dominated by right-wingers who don’t care about honest judging and work tirelessly to advance their political positions. John Paul Stevens, who was an unusually competent and scrupulous technical practitioner, found himself in conflict with them and was, accordingly, identified as having a liberal bias. But he had no such bias – he was merely a fair and honest man in a time of biased judges.

  9. Joe:

    Why would the mere question invade privacy? If he was forced to answer, perhaps. Also, you don’t have a constitutional right to have friends not to be assholes, but you can resent friends who are. There doesn’t have to be a constitutional right to privacy for privacy to be a good idea.

  10. c u n d gulag:

    Oh, Jeez, Paul!

    Just the thought of any “sex lives of the SCOTUS justices” will take a lot of alcohol to erase from my memory banks – so you owe me!!!

  11. Njorl:

    Is there some special significance for the picture I’m not getting, or is it just the general suggestiveness of it?

  12. NonyNony:

    I was going with the assumption that it meant “how do you like those apples”.

    I don’t know if that’s the intent, or even if it fits, but after reading the post and then looking at the picture again, that was the first thing that popped into my head.

  13. Lindsay Beyerstein:

    I thought this was going to be a thread about Sotomayor’s wedding guests buying the happy couple a bag of Qualuudes.

  14. MAJeff:

    And Scalia eats babies

  15. Murc:

    This.

    When people say a judge is biased, whatever the technical definition of the term is, they generally don’t mean “he applies a robustly reasoned legal rubric to his cases, consistently and well.” They sometimes, but not often, mean “Judge [X] is deeply biased towards expanding [constitutional principle Y] and cases arguing that Y needs to be expanded or protected will find purchase with him.”

    What they actually mean most often is “this guy has an agenda, one that doesn’t mesh with any kind of technically well-reasoned or consistent legal rubric of any kind, and he will ignore his own precedents, stated philosophies, and other things he ought to be paying attention to to twist such law as we have into a pretzel to push that agenda forward.”

    And I think we should expect judges not to be biased in that manner.

    In fact, I’ll go one step further.

    In other words, asking a judge not to be biased makes no more sense than asking a politician not to be “partisan.”

    It damn well does make sense to ask politicians not to be partisan, for the use of “partisan” as it is actually deployed in common usage.

    When people say someone is overly ‘partisan’ as an indictment, they don’t mean “that guy is a proud and loud member of his political tribe.” They mean “this guy is committed to having his political tribe score wins regardless of whether it’s good for the country or not, or indeed whether or not he pays attention to facts, truth, and common decency.” And yeah, I kind of do think politicians should be better than that, and it makes sense to demand that.

  16. rea:

    I thought you were kidding, ’til I googled it . . .

  17. Murc:

    Best. Wedding. Ever.

  18. Snarki, child of Loki:

    Sure it’s not a picture of Ginsberg in her younger days?

    Did they have color photography back then?

  19. L2P:

    And then we get into the weeds.

    Is a judge impartial when she lacks a relationship with a party or a financial interest in the matter, but has devoted large amounts of her non-professional life to a political, religious, or charitable cause that will be resolved by the outcome of a case?

    Traditionally, only material interests, and close personal connections, create “partiality.” But there doesn’t seen to be any reason that a devoted Catholic who sees Catholic doctrine as central to his or her identity is any less “partial” to a case involving core Catholic doctrine than somebody who invested $5,000 in IBM stock would be in a case involving IBM.

    But there you go.

  20. Sebastian H:

    I can’t agree with your last sentence. Maybe on some philosophical level, we can’t expect humans to avoid their own biases. But judges, more than just about anyone, are supposed to try. We can point to their failures as unfortunate and human. But those are failures. A system where they aren’t even supposed to get past their own biases isn’t judging as I understand it.

  21. rickhavoc:

    “Justice? You’ll get justice in the next world. In this world we have the law.”

    Of course Scalia could detach himself from his loathsome opinions. He’s on the court specifically because he doesn’t, but he didn’t put himself on the court. And so it goes.

  22. NonyNony:

    You think Ginsburg might have looked like Sophia Loren when she was younger? I can kind of see it, actually.

    (She and Loren are the same age, and color photography did exist in the 1950s, which is when that picture would have been taken and both of them would have been in their 20s).

  23. Julian:

    You are incorrect.

    Many (maybe all) hard legal issues can be approached in different ways. The different approaches start from different premises (i.e. value judgments). Those value judgments are often unfalsifiable. That means you just have to pick a side. Is the purpose of punishment retribution, incapacitation, deterrence, or what? We don’t have a tablet with god’s handwriting on it telling us. Judges have to pick one or many or all of the above.

  24. DrDick:

    Live, raw babies.

  25. DrDick:

    And several of the conservative justices have demonstrated no sense that they should recuse themselves even in cases where there is a clear appearance of conflict of interest. It is only nominally liberal justices who are capable of bias apparently.

  26. Njorl:

    Very similar eyebrows

  27. rea:

    Just as the Founders intended.

  28. Sebastian H:

    “Is the purpose of punishment retribution, incapacitation, deterrence, or what?”

    For the most part that is either unimportant to a judge’s role, or determined by the legislature. Maybe (and even the very qualified) at the Supreme Court level that is true. But for the most part a judge doesn’t need to or get to decide if the punishment is retribution, incapacitation, deterrence or what. And when they do, it tends to be in a very specific range that has been drawn by the legislatures. If a non-Supreme Court judge decides that the death penalty is ‘too retributive’ or whatever and then strikes it down every time it comes before them, the public rightly sees that as non-proper bias and kicks them out of office if they can (see Justice Bird in California for example).

    A legal system where it is ok for judges to embrace their biases would look nothing like ours. Look at the recent articles on Scalia and gay people. They are suggesting that Scalia is biased against gay people, that he lets that effect his legal judgments, and that doing so is a bad thing.

    You would reduce it to what? He’s biased against gay people and that sucks for them, but hey that is how the legal system is supposed to work?

  29. Kate:

    Alot of the comments about Scalia on this site are just plain ignorant, hate-filled, and juvenile in content. Real morons posting here. They haven’t 1/100th the brain power that Scalia has. And they sure sound like they don’t have law degrees.

  30. Malaclypse:

    Plus, the comments lack self-awareness, while drowning in ironic self-referentialism.

  31. sharculese:

    I don’t think anyone here is going to claim that Scalia is an idiot, just that he’s a loutish, mean-spirited asshole and a self-conscious con man.

  32. Bill Murray:

    I know you are but what am I?

  33. MAJeff:

    So, tell us, does he sodomize you?

  34. rea:

    Is he a smart guy? Well, we have acquaintances in common and they tell me he is.

    But–he claims to have a well-thought out jursprudential philosophy. Does he have one that makes a lick of sense? Hell, no! Does he display a grasp of the history of US constitutional law, or the common law? Hell, no! Does he demonstrably abandon his alleged principles when it suits his political agenda? Hell, yes! Does he want to poke his nose into my sex life, but keep me away from his? Well, evidently, yes.

  35. DrDick:

    Unfortunately, nobody who was actually there can remember a thing.

  36. Malaclypse:

    I think it fair to say that he has sodomized us all.

  37. Anonymous:

    So what ended up happening to that kid?

  38. Rhino:

    Why are my cookie vanishing? The above is me

  39. Njorl:

    I figure he’s either got a reality show or he’s been whacked.

  40. RedSquareBear:

    I see what you did there…

  41. DocAmazing:

    That wasn’t rice they were throwing…

  42. ajay:

    Alot of the comments about Scalia on this site are just plain ignorant, hate-filled, and juvenile in content.

    YOUR COMMENTS MAKE ME A VERY SAD ALOT.
    http://hyperboleandahalf.blogspot.co.uk/2010/04/alot-is-better-than-you-at-everything.html

  43. Deggjr:

    Jameson, do you have something you’d like to share with the group?

  44. IHBSFs:

    Well, if LinkedIn is correct, and this is the right guy, he’s currently employed as an attorney in Chicago, working immigration issues.

  45. DrDick:

    I will continue to do so whenever the opportunity arises, with or without our consent.

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