"I have never been custodian of my legacy."
October 6, 2013 10:14 PM   Subscribe

In Conversation: Antonin Scalia "On the eve of a new Supreme Court session, the firebrand justice discusses gay rights and media echo chambers, Seinfeld and the Devil, and how much he cares about his intellectual legacy ("I don’t")."

Link to the multi-page version.
posted by zarq (89 comments total) 19 users marked this as a favorite

 
This is chock full of nutty goodness. "Words have meaning. And their meaning doesn’t change." is, like, Level 1.
posted by Bwithh at 10:28 PM on October 6, 2013 [7 favorites]


Yeah, I found this scary, because he's as crazy as one of the neighbors you giggle at with your SO after listening to an hour long mad ramble, except he's one of the nine in the magic robes and is the final word on our nation's laws.

No wonder we're an international laughingstock.
posted by nevercalm at 10:38 PM on October 6, 2013 [20 favorites]


Senior: Can we talk about your drafting process—
Scalia: [Leans in, stage-whispers.] I even believe in the Devil.



Maybe the whole thing is a one big troll by Scalia?
posted by Bwithh at 10:40 PM on October 6, 2013 [2 favorites]


I for one hope Justice Scalia will end up with at least a couple of years of retirement, when he could finally feel free to say what was really on his mind.
posted by bafflegab at 10:41 PM on October 6, 2013 [10 favorites]


I don't know why I would break down and read this before bed. He really argles my bargle. Or bargles my argle. I'm not sure which. I'd say it doesn't matter but as he says, words have meaning.
posted by MCMikeNamara at 10:42 PM on October 6, 2013 [15 favorites]


The Nazi soup kitchen? No soup for you!

Given his rulings on torture being typed out by the writing staff of 24, I hope someone takes his TV away before he gets to rule for, say, taking food stamps away from the needy.
posted by Blazecock Pileon at 10:46 PM on October 6, 2013




For years and years, I found myself disgusted with Scalia's legal opinions, but I kept hearing - usually from conservatives, but not always - what a smart man he was. That would puzzle me, because when I read transcripts of his interactions with lawyers in court, he struck me as often making leaps of reasoning that were unjustified, and embarrassing if expressed by a high school debater (in particular about the use of torture and what qualifies as such). And every time I read an interview of him, well, I can't say I lose even more respect for him, because I had very little left anyhow, but I keep wondering, dismayed, at how a man of such low intellect - and character - could have achieved such an exalted office.

This interview is no different. The guy is a garden variety loon - not all that different from your elderly angry white bagger out there. He won't read a paper that he disagrees with politically, even if it's the country's most eminent - NYTimes, Washington Post, instead, he'll limit himself to the WSJ and Washington Times - Times, for Christ's sake, and listen to "radio guys", with the notably "thoughtful" William Bennett... like a million other baggers trapped in an echo chamber. I mean, I'm not a student of law or politics or anything, and I consider it my duty as a citizen to listen to voices I disagree with, however unpleasant (such as redstate.com), but apparently making historic decisions about a country of over 300 million is not compelling enough to read the premiere papers where one may come across views one may disagree with. Facepalm.

And then there's the Devil stuff. OK, he's religious, fine. But good grief... this piece of reasoning is just too depressing:

"Well, you’re saying the Devil is ­persuading people to not believe in God. Couldn’t there be other reasons to not believe?

Well, there certainly can be other reasons. But it certainly favors the Devil’s desires. I mean, c’mon, that’s the explanation for why there’s not demonic possession all over the place. That always puzzled me. What happened to the Devil, you know? He used to be all over the place. He used to be all over the New Testament."

What an intellect! Facepalm again. But worry not, as soon as the topic of Scalia comes around, someone is sure to mention that even if they disagree with him politically, they respect his intellect. We're fucked.
posted by VikingSword at 11:15 PM on October 6, 2013 [94 favorites]


Antonin Trollia?
posted by nevercalm at 11:20 PM on October 6, 2013 [2 favorites]


I'm not a lawyer, so I can't actually speak to the quality of Scalia's work. But I've long suspected that people -- across the political spectrum -- have been mistaking cleverness and absolute self-confidence for deep legal understanding. This interview has not dissuaded me of that opinion.
posted by no regrets, coyote at 11:37 PM on October 6, 2013 [28 favorites]


One of the things that upsets me about modern society is the coarseness of manners. You can’t go to a movie—or watch a television show for that matter—without hearing the constant use of the F-word—including, you know, ladies using it.


Fuck fuck fucking fuck fuck fuck fuck fuck fuckity fuck fuck fuck.


Just had to get that off my chest. My LADY chest.
posted by louche mustachio at 11:41 PM on October 6, 2013 [85 favorites]


And then there's the Devil stuff. OK, he's religious, fine. But good grief... this piece of reasoning is just too depressing: ...

...

Antonin Trollia?


This actually does legitimately strike me as a form of trolling. I don't think he's serious. He's trying to acknowledge the stupidity of having to be committed to a literal belief in the Devil by citing the obvious absurdity of textualism in that situation. It's like when hipsters use irony to express sincere appreciation for something--where the irony allows them to plausibly deny any real feelings whatsoever and therefore avoid some perceived social consequences of liking it.
posted by holympus at 11:44 PM on October 6, 2013 [3 favorites]


Some interesting, uh, contrarian points brought up, even on the first page. He seems to agree with the conventional wisdom (which is being eroded by a new wave of denialism) that Watergate was a singularly awful event brought about by inherent corruption in the office of the Presidency, so that's good, and he even implies that ending the Vietnam War was a good thing for Congress to do (if you can really ascribe it to them). Later he seems to even blame the Gipper for cheapening the SOTU.

Of course, there is also the bizarre feeling that the "words don't change" which effectively means that we should be governed as envisioned by a society of agrarian Deists, many of whom owned slaves. Really, reverence of the original text can only go so far.

OTOH I don't have a problem with his belief in the Catholic version of the Devil, or anyone's for that matter. It's not a big part of my Congregationalist (edging on UU) worldview, when I admit to a faith that is, but then again my worldview is that the Devil is a proxy embodiment of, well, worldly evil.

I also learned that there are three books on the NYT best-seller list about Duck Dynasty. I find this unsettling. But then again, waiting for rabbits to come to your garden isn't hunting for sport, it's protecting your vegetables. Sorry, bunnies, them'r mine.

But you know, I believe I agree with him on the independent counsel -- and definitely on the state solicitors general.

As to:
Wasn’t it Stevens who said to Souter, “Tell me when I’m losing it and need to retire?”
No, it wasn’t Stevens. I think it was Holmes who asked Brandeis.


Scalia appears to be correct. Brandeis and Holmes were close both personally and legally, and Holmes did ask Brandeis to bear that responsibility, but in the end the latter was unable to tell his failing friend that it was time and insisted that Chief Justice Hughes be the one. [src]

But, yeah, the guy's pushing 80. There's not a whole lot of chance the two remaining Reagan appointees will remain on the bench that much longer, and indications are pretty favorable for a Democratic president with the initials "H.C." to follow Obama in 2016. But frankly, the justice I'd most like off the court isn't Scalia, it's Thomas, and he's the sort who's not only young enough to have years to go (I call 2030 in the pool!) but cussed enough to stick it out for the pure doggedness of outliving his enemies (politically, anyway).
posted by dhartung at 12:02 AM on October 7, 2013 [3 favorites]


Oh god what a TOOL.

And every time I read an interview of him, well, I can't say I lose even more respect for him, because I had very little left anyhow, but I keep wondering, dismayed, at how a man of such low intellect - and character - could have achieved such an exalted office.

He was a partisan wonk, pure and simple. Reagan was looking to install someone to change the character of the court away from progressive causes towards conservatism. If you play ball with the party leaders you too might one day get a lifetime appointment to the highest court in the land.

People like Scalia remind me that, while an individual tragedy, death is often a blessing for society at large. Many stale and dusty old notions only ever leave the national thoughtscape when the people holding them expire.

The Wikipedia page on the guy has some interesting details. For example, the guy has nine children, and is somehow friends with fellow justice Ruth Bader Ginsberg.
posted by JHarris at 12:29 AM on October 7, 2013 [5 favorites]


Scalia factcheck
posted by Bwithh at 12:31 AM on October 7, 2013 [4 favorites]


In his favour you can say that if Scalia were wise and judicious it might help to hide the fact that the supreme interpretive power of judges is itself a flaw in the Constitution.
posted by Segundus at 1:10 AM on October 7, 2013 [1 favorite]


This is chock full of nutty goodness. "Words have meaning. And their meaning doesn’t change." is, like, Level 1.

No, I understand what he's saying. We talk about a living document, but of course the actual Constitution itself isn't changing, we are. The idea that the constitution evolves seems like it is mostly just a euphemism for "we don't agree with that part, we're going to start going against it now." I disagree with Scalia at the object level about gay marriage and so on, but originalism in the abstract just seems obviously correct. We should either obey the Constitution or admit that we're not obeying it, hold a convention, and make a new one (which would be fine too!). But this "living document" stuff is just dishonest, however much utilitarian good it's done.
posted by officer_fred at 1:15 AM on October 7, 2013 [8 favorites]


and is somehow friends with fellow justice Ruth Bader Ginsberg.

Why not? She seems likable enough.
posted by three blind mice at 1:16 AM on October 7, 2013 [2 favorites]


Hi, we can't even pass a budget. Rewrite the Constitution? That's great.
posted by cj_ at 2:39 AM on October 7, 2013 [4 favorites]


Scalia is ... weird. He applies original intent when it suits him but not when it doesn't and I suspect he sometimes dissents only when he knows which way the court will rule [Hamdi v. Rumsfeld]. Then he cast the deciding vote in favor of same sex marriage.

Sometimes he and I are in agreement as in the two above. My opinion is that he is a power hungry asshole who uses whichever legal theory suits his need to be powerful and garner attention.
posted by vapidave at 3:07 AM on October 7, 2013 [2 favorites]


Scalia is ... weird. He applies original intent when it suits him but not when it doesn't

Scalia isn't weird or dumb, but just a devoted political hack who does his best to always rule in favour of the Republican party. Any pretence to the contrary was abandoned after Bush v Gore. Because he and his cronies are the ultimate judicial authority in the country he doesn't even have to be particularly clever or obscure in doing this; who's going to overrule him?
posted by MartinWisse at 3:25 AM on October 7, 2013 [3 favorites]


I'm pretty sure that same sex marriage is not a plank in the Republican platform yo.
posted by vapidave at 4:02 AM on October 7, 2013 [3 favorites]


I'm pretty sure that same sex marriage is not a plank in the Republican platform yo.

Establishment Republicans, of which Scalia is one, are eager for the donations of the white, affluent men who also self-identify as homosexual, and kind of sick of playing "sit up and beg" to the evangelists, who can't deliver cash or votes in battleground states, and who have nowhere to go, anyway. The party in general would like to recruit more young folks with a libertarian streak, but the party's usual libertarian banner-wavers are kinda nuts, and appeal more to older ultra-cons. So you have the Supremes doing weird shit like saving Obamacare and same-sex marriage; it's also why I think McCutcheon vs. FEC will fall on the side of spending limits. It gives too much clout to the Tea Party and its paymasters, who have been running the GOP ragged. It's not intellectually consistent, but from the standpoint of doing the best thing for the core Republican party, it's in line.
posted by Slap*Happy at 4:53 AM on October 7, 2013 [7 favorites]


Scalia is no supporter of same sex marriage. Read his dissent in the Windsor case. He voted with the majority in the prop 8 case, but that was a procedural opinion that prevented the Court from reaching the merits. This could well have been his attempt to prevent the Court from further expanding the substantive right to same sex marriage.
posted by burden at 5:04 AM on October 7, 2013 [3 favorites]


death is often a blessing for society at large

A force for change is Live and Let Die.

I always knew the old Bond movies had lessons for us Socialists!

I'll see myself out now.
posted by Slackermagee at 5:41 AM on October 7, 2013


I didn't mean to intimate that Scalia is a supporter of same sex marriage. He did vote that way though, perhaps he is more clever than I credit.

Taken in order:

There aren't enough wealthy Log Cabin Republicans to make as substantial a contribution to campaign finance as compared to the Koch brothers. While no politician turns down money they do know where the money is and it's not in "white, affluent men who also self-identify as homosexual" - no way.

"This could well have been his attempt to prevent the Court from further expanding the substantive right to same sex marriage."

I'll confess ignorance here but I am wondering how your suspicion is warranted in view of the tenth and the fourteenth amendments.
posted by vapidave at 5:59 AM on October 7, 2013 [1 favorite]


originalism in the abstract just seems obviously correct.

It really doesn't. Really, really doesn't. It leads to very big questions with no good answers. First, if we want to say that words mean now what they meant when some part of the constitution was voted on, means to who? Do we care what it meant to the people who wrote it? To the convention delegates or legislators who voted on it? Do we care about the differences of opinion about what a passage means between majorities and minorities writing it, or voting on it in Congress or in convention, or in one or another state assembly?

Second, even if we knew whose meaning mattered and whose didn't, how are we supposed to know what they thought it meant? We don't have (much) access to what they actually thought about it, all we have access to for the most part is the PR they issued on one side or another. But of course politicians do sometimes say one palatable thing while they actually intend some other less palatable thing. Which matters? Their actual intent or the intent they publicly feigned in the Federalist?

Third, how do we deal with the fact that so much of the Constitution is left in vague, unhelpful language. I mean, the first amendment says that Congress shall make no law abridging the freedom of speech. So whatever the fuck the freedom of speech is, Congress can't limit that. But stuff that's not included in whatever "the freedom of speech" is, Congress can limit that all it wants. And the primary reason constitutional provisions are left vague is because there is widespread disagreement about what those words should mean. People in the early Congress weren't able to agree on what precisely the federal government should and shouldn't be allowed to limit, but they can all agree that whatever they think the freedom of speech is, Congress can't limit that. More generally, one of the things that we've learned since 1789 is that the question of aggregate intent -- what does some collection of people want, what is the "will" or "intent" of some group -- is extremely hard to determine and that quite often there isn't anything firm and consistent enough to meaningfully call their "intent."

We should either obey the Constitution or admit that we're not obeying it, hold a convention, and make a new one (which would be fine too!). But this "living document" stuff is just dishonest, however much utilitarian good it's done.

So-called originalism is deeply dishonest because there's no accurate or precise way to know what the original intent was, or how badly it was fractured, or who intended what. In practice, all it means is "vote against freedom and equality," with dead white dudes offered up as a sacrifice to public opinion so you can pretend it's not your fault you're casting a horribly bigoted vote.
posted by ROU_Xenophobe at 6:01 AM on October 7, 2013 [118 favorites]


I wish I could favorite ROU_X's comment a hundred times.
posted by aught at 6:12 AM on October 7, 2013 [2 favorites]


But this "living document" stuff is just dishonest, however much utilitarian good it's done.

Living document is the whole point of having a Judge decide!!!! It's a living document because it's interpreted by people who are alive! Not dead!

If words never changed and interpretations of documents were always 100% clear in every situation there would be no need for a judicial branch at all! But they do, that's why we have laws that are interpreted by humans called Judges!

Having a judge that says "I'm not interpreting laws, I'm just following exactly what these dead people meant." Is both insane and a lie. A. He can't know what the dead founders meant because they're dead and have been for quite a while! And B. He knows this, is interpreting things however he feels like and uses this nonsense as a excuse for his *LIVING* interpretations!

Originalisim makes me so angry I could spit.
posted by j03 at 6:15 AM on October 7, 2013 [16 favorites]


The clock is ticking on Scalia and his kind.
posted by incandissonance at 6:48 AM on October 7, 2013 [1 favorite]


Justices are appointed, not elected, and serve for life. This is so they are beholden to no one for their rulings and can instead spin them from pure legal thought.

That seems to have worked out pretty well.
posted by Legomancer at 6:56 AM on October 7, 2013 [3 favorites]


We should either obey the Constitution or admit that we're not obeying it, hold a convention, and make a new one (which would be fine too!). But this "living document" stuff is just dishonest, however much utilitarian good it's done.

Aaaand what exactly is to stop the future citizens from doing the same thing? I mean, no matter what you put down on that piece of paper, somebody has to interpret it. And given the fact that humans will be involved with that process, there's also going to be somebody that circumvents it somehow. Loopholes aren't really avoidable.
posted by Blue_Villain at 7:05 AM on October 7, 2013 [1 favorite]


The idea that the constitution evolves seems like it is mostly just a euphemism for "we don't agree with that part, we're going to start going against it now." I disagree with Scalia at the object level about gay marriage and so on, but originalism in the abstract just seems obviously correct.

Except the authors of that document weren't slouches and some of them even wrote in personal letters about how they anticipated future societies would come to reinterpret the words of the constitution from the vantage point of their more enlightened, scientifically informed cultural values. No cite handy, but there is scholarship on the subject. Even at the beginning, the picture was not as unambiguous as this comment implies.
posted by saulgoodman at 7:14 AM on October 7, 2013 [5 favorites]


"Words have meaning. And their meaning doesn’t change."

So it's okay to submit documents to the court in Proto-Indo-European, then?
posted by gimonca at 7:16 AM on October 7, 2013 [5 favorites]


Scalia is the proof that the Attitudinal Model is the correct way to think about SCOTUS decisionmaking. He's motivated only by Far Right media and personal invective, and claims of some binding "originalism" principle as defined as anything other than Scalia's personal policy preferences are transparently absurd. Originalism is pseudo-intellectual mumbo-jumbo Scalia and allies like the Federalist Society trot out to dress up Sarah Palin and Sean Hannity's words for legal publication.
posted by T.D. Strange at 7:21 AM on October 7, 2013 [3 favorites]


Is Scalia in Denial About His Own Homophobia?

Spoiler alert: Yes.

Also, duh.
posted by MCMikeNamara at 7:26 AM on October 7, 2013 [1 favorite]


"Words have meaning. And their meaning doesn’t change."

I, for one, was nonplussed by this statement.
posted by cjelli at 7:26 AM on October 7, 2013 [11 favorites]


"Words have meaning. And their meaning doesn’t change."

Seems as good a time as any to drop a mention to my favorite unanimous SC opinion.
posted by likeatoaster at 7:30 AM on October 7, 2013 [7 favorites]


I'm about halfway through and I feel like it's a deeply interesting interview. Scalia is such a bizarre character and I honestly can't decide if the philosophy he claims to espouse is a façade or not. He has tremendous power and claims not to care about his legacy. Senior says she thinks he'd be a terrible poker player because he's the type to "lay all his cards out on the table." But I just can't get over this bit from the very first page:
[Scalia, speaking of his originalist philosophy:] I am something of a contrarian, I suppose. I feel less comfortable when everybody agrees with me. I say, "I better reexamine my position!" I probably believe that the worst opinions in the court have been unanimous. Because there's nobody on the other side pointing out the flaws.

[Senior:] Really? So if you had the chance to have eight other justices just like you, would you not want them to be your colleagues?

[Scalia:] No. Just six.

[Senior:] That was a serious question!

[Scalia:] What I do wish is that we were in agreement on the basic question of what we think we're doing when we interpret the Constitution. I mean, that's sort of rudimentary. It's sort of an embarrassment, really, that we're not. But some people think our job is to keep it up to date, give new meaning to whatever phrases it has. And others think it's to give it the meaning the people ratified when they adopted it. Those are quite different views.
I'll leave aside my objection to the essence of Scalia's philosophy here since I think ROU_Xenophobe covered that pretty well. I just can't believe that in the space of a few short sentences Scalia can travel the distance from "I feel less comfortable when everyone agrees with me" to "everyone should agree with me about how the constitution should be interpreted." There's no sense to me there that Scalia detects a whiff of tension between the two contradictory things he's just said. I wish Senior would have asked a follow-up there pointing it out.

But I think that's kind of Scalia in a nutshell. To me, rigorously following a particular philosophy of interpretation is naturally going to lead you to some conclusions that you don't like, that you wish had gone another way. But I don't ever get that sense from Scalia's jurisprudence; I haven't read all his work, of course, but I've never gotten the impression that he's delivered an opinion or a dissent where his interpretation of the constitution has lead him to a conclusion he feels is truly regrettable. I'm not talking about instances of, as he talks about later, things that are "STUPID BUT CONSTITUTIONAL." I'm talking more along the lines of "DEEPLY, PERSONALLY OFFENSIVE TO ME AND MY PERSONALLY-HELD BELIEFS BUT (UN)CONSITUTIONAL." Does Scalia--a man who would like to think of himself as intellectually honest, contrarian--never find it a bit suspicious that his originalism and textualism so naturally and so frequently lead him to conclusions so closely in line with his own beliefs?

I'm not, personally, philosophically opposed to judges using their own judgment in handing down decisions. As j03 says that's why we have judges in the first place. I also recognize that judges are going to hand down decisions that I find personally offensive at least some of the time. But don't lie to my face while you're doing it. Don't claim to be pursuing an academically rigorous line of interpretation when what you're really doing is using your own projections of what you think the all-hallowed "Founding Fathers" intended because you think it's a starting point that will let you more easily reach the pre-ordained conclusion that you want.

Yes, words have meaning. We agree on that. I'm a deeply spiritual man myself and I believe the logos is the most important way we see God through the Holy Spirit influence the world today. But you can't convince me that in 1868, a woman did not qualify as a person. And ultimately, that's not even Scalia's intent. I don't believe he wants to take any rights away from women per se. His problem is that if you interpret the 14th amendment literally, then you truly have to extend the equal protection of the law to all people--even those whose lifestyles you find personally offensive, as Scalia finds gay people to be. So the only way to stop that is to choke it off as far back as you can, and pretend that you know the authors of the 14th amendment intended to encompass only as small a subset of society as you can convince yourself is reasonable. (Pay no attention, of course, to the fact that section 2 specifically refers to "male citizens" and section 1 does not. That might get in the way of reaching the conclusion we want to reach.)
posted by kjh at 7:31 AM on October 7, 2013 [14 favorites]


I'll confess ignorance here but I am wondering how your suspicion is warranted in view of the tenth and the fourteenth amendments.

I'm not sure what you mean by this.

In the Prop 8 case, the majority held that the people who backed Prop 8 did not have standing to appeal the district court's decision to strike down Prop 8. That allowed the district court's decision to stand, but it was not in any way an endorsement of the district court's decision or reasoning.

If the Prop 8 proponents were found to have standing, then the Supreme Court could have reached the merits of whether same-sex marriage bans are themselves unconstitutional, either in general, or in circumstances particular to Prop 8. I think it's fairly plausible that Scalia wanted to prevent the Court from making such a ruling. Plus, he's been a long-time proponent of strict standing requirements, which restrict access to courts, so his Prop 8 vote may well have been an attempt to make the best out of a (to him) bad situation.
posted by burden at 7:37 AM on October 7, 2013 [2 favorites]


but originalism in the abstract just seems obviously correct.

In addition to ROU_Xenophobe's excellent comment, this is why Originalism is popular. At first blush it seems correct. Judges should just apply the law as written to the facts, right? But on examination its pretensions to objectivity fall apart.

There have been countless academic articles on this topic, and they're not by a bunch of liars. The liars are those who seek to dress their preferences in the guise of the Truth. Originalism's only selling point is its apparent objectivity, but since it clearly lacks that, it's intellectually bankrupt.
posted by Sangermaine at 7:41 AM on October 7, 2013 [8 favorites]


ROU_Xenophobe: " So-called originalism is deeply dishonest because there's no accurate or precise way to know what the original intent was, or how badly it was fractured, or who intended what. In practice, all it means is "vote against freedom and equality," with dead white dudes offered up as a sacrifice to public opinion so you can pretend it's not your fault you're casting a horribly bigoted vote."

More on this: The Framers' Constitution
posted by zarq at 7:45 AM on October 7, 2013 [3 favorites]


To be an "originalist" means to declare oneself deliberately and systematically ignorant of history, because even the most cursory acquaintance with historical analysis will show you that no law was ever written about which even those who voted in favor of it agreed exactly as to what it was "intended" to accomplish (this is spectacularly true of the Constitution itself, of course; why on earth does anyone think the Federalist papers needed to be written if the document was supposed to be self-explanatory? And even there, Madison, Jay and Hamilton don't even agree with each other exactly as to the meaning or scope of the document they're attempting to explain).

You might try to duck out of the intellectual dishonesty of "originalism" by proclaiming "textualism" as your guiding principle ("it doesn't matter what the legislators' intent was, what matters is the meaning of the words they put into the law and what those words meant at that time.") but that is just to shift from one morass to another. There is no magical "true meaning" of any complex statement in any language. It is always contested, always, in process of redefinition. That is why two legislators can read the same bill and both vote in favor of it and violently disagree as to its scope and purpose; not because one of them read carefully and the other poorly, or one of then is stupid and the other smart (although that can be the case as well), but because language is always a contested field. Both "textualism" and "originalism" are intellectually null positions.
posted by yoink at 7:49 AM on October 7, 2013 [11 favorites]


Actually, every serious constitutional scholar is an originalist in the sense that they are trying to figure out the meaning of the words at the time they were written. The question is at what level of abstraction that meaning ought to be construed: it is whether and in what sense that meaning was itself deliberately designed to encompass progressively new understandings of itself. Was "free speech" as a phrase meant to remain suspended in the common understanding of that phrase in the 1780s? Or was it meant, even then, to be something that evolved with the times?

And this kind of question cannot be resolved simply with reference to the text or to history: it requires a moral judgment about the purpose of a document like the Constitution. Scalia has one such understanding. He believes the purpose of the Constitution is to provide rigid, difficult-to-change, and very clear rules that serve as a bulwark against a tyranny of the majority. To accomplish his goals, he wants to look back to original meaning at a very low level of abstraction, to examine very concrete examples of what words might have meant historically.

Others believe the purpose of the Constitution is to provide a less rigid and more amorphous, but still fairly specific, set of moral norms which can advance human freedom. They'd still examine original meaning, but construe it at a much higher level of abstraction, at least in places where that is plausible. No one on any side of the debate argues that the minimum age to become a senator somehow "evolves," for instance.
posted by shivohum at 8:05 AM on October 7, 2013 [2 favorites]


I'm pretty sure that same sex marriage is not a plank in the Republican platform yo.

Huh? Is the implication there that Scalia was in favor of same-sex marriage when he joined the majority that rejected standing for California Prop 8 proponents? That's an odd interpretation. The procedural issues in that case muddled the usual lines quite a bit, with liberal Sotomayor actually in the minority, wanting the Court to hear the case instead of rejecting it. The bottom line is that gay marriage was saved in California, but a potential challenge to [edit for correction] it anti-gay marriage laws in all the other states was avoided. Scalia's appearance in the majority there is consistent with a picture of the man as primarily a right-wing hack using whatever rationale he finds handy to advance his ideological agenda, whether or not it matches his previously professed logic.

And in fact if you look at the *other* same-sex marriage case the Supreme Court decided this summer, ruling the Defense of Marriage Act unconstitutional, you'll find Scalia very comfortably in his usual position: vehemently and aggressively attacking his colleagues for extending civil rights to queer people while bemoaning the decline of traditional morality.
posted by mediareport at 8:15 AM on October 7, 2013


He believes the purpose of the Constitution is to provide rigid, difficult-to-change, and very clear rules that serve as a bulwark against a tyranny of the majority

But he doesn't, really. He believes that the purpose of the Constitution is to provide rigid, difficult to change, clear rules that preserve the dominance of straight white christian men against the claims of bad people, like feminists and gays and atheists, and people who don't matter, like blacks.
posted by ROU_Xenophobe at 8:15 AM on October 7, 2013 [4 favorites]


And even there, Madison, Jay and Hamilton don't even agree with each other exactly as to the meaning or scope of the document they're attempting to explain

And even there, what they're offering isn't their sincere description of what the Constitution means, but only a set of arguments they hope will prove convincing to the delegates in New York.
posted by ROU_Xenophobe at 8:17 AM on October 7, 2013


"Words have meaning. And their meaning doesn’t change."

Uh-huh. Then explain why women in Isaiah were wearing tires.
posted by ROU_Xenophobe at 8:23 AM on October 7, 2013 [5 favorites]


[Scalia, speaking of his originalist philosophy:] I am something of a contrarian, I suppose. I feel less comfortable when everybody agrees with me. I say, "I better reexamine my position!" I probably believe that the worst opinions in the court have been unanimous. Because there's nobody on the other side pointing out the flaws.

This, to me, is a deeply irrational way to think. I don't think there's anything wrong - indeed, it's good - with examining your beliefs and understanding why you believe what you believe, but being willing to throw that over when you discover that other people agree with you *just* because they agree with you seems to me to be pretty juvenile.

As for no one pointing out flaws - did they not have an entire series of cases leading up to the one that comes before the Supreme Court, where each side points out the flaws in the other's argument? Do the justices not argue and discuss in chambers? Is it impossible that, yes, some arguments may have flaws but they are nonetheless correct? He's written plenty of concurring opinions over the years where he gets to say "Yeah, but...", so the system even takes that into account.
posted by rtha at 8:25 AM on October 7, 2013


But he doesn't, really. He believes that the purpose of the Constitution is to provide rigid, difficult to change, clear rules that preserve the dominance of straight white christian men against the claims of bad people, like feminists and gays and atheists, and people who don't matter, like blacks.

Heh. Well I don't think it's a one or the other thing. He holds his moral view of the Constitution no doubt in part for the reasons which he states and no doubt also in part because it happens to lead to conservative political outcomes. But it isn't always so. Scalia is notoriously liberal in certain areas, like the fourth amendment or the confrontation clause, presumably because that's what follows from his judicial philosophy.
posted by shivohum at 8:51 AM on October 7, 2013


In his favour you can say that if Scalia were wise and judicious it might help to hide the fact that the supreme interpretive power of judges is itself a flaw in the Constitution.

Spoiler alert.
posted by kafziel at 9:16 AM on October 7, 2013 [1 favorite]


He's a funny, engaging guy. Say what you want, but no other SCOTUS judge is as open and as willing to openly discuss jurisprudence and to engage the public.
posted by jpe at 9:31 AM on October 7, 2013 [1 favorite]


He believes that the purpose of the Constitution is to provide rigid, difficult to change, clear rules

To the contrary, he generally believes that many rights should be left to the people rather than determined by judges. In the latter case, the only way judges can be overturned in many cases is through the amendment process, which is far, far harder than changing a statute.
posted by jpe at 9:32 AM on October 7, 2013


He's a funny, engaging guy.

Not so much.
posted by Legomancer at 9:37 AM on October 7, 2013 [1 favorite]




Actually, every serious constitutional scholar is an originalist in the sense that they are trying to figure out the meaning of the words at the time they were written.

That, right there, is a pretty good example of how a word--in this case the word "originalist"--has an inherently contested and contestable meaning even at a single historical moment. I would argue that your definition of "originalist" is incorrect, because if "every serious constitutional scholar is 'originalist'" then it is meaningless for one group of "serious constitutional scholars" to differentiate themselves from another group of "serious constitutional scholars" by claiming to be "originalists" and claiming that the others are "not originalists." But I cannot argue that I do not understand what you mean by your use of the term or that it is indefensible. So if we cooperated on a document in which the word "originalist" was used any attempt to define the "original intent" behind our use of that word by reference to our personal statements about the word's meaning would clearly be absurd. Any "textualist" claim that the word had, at the time of our use of it, a clear, single and recoverable meaning would be disproven by reference to this controversy. The only recourse for anyone trying to make sense of our joint statement and jointly approved use of the word would be an interpretive strategy of precisely the kind "originalists" and "textualists" deprecate.
posted by yoink at 9:47 AM on October 7, 2013 [8 favorites]


He's a funny, engaging guy. He also has a unique ability to interpret the law! No one is safe!
posted by JDC8 at 9:51 AM on October 7, 2013 [4 favorites]


Not so much.

Never said he was charming. To the contrary, he's got a brusque sense of humor. I can see why delicate flowers would find him not-so-funny.

That article, FWIW, is incredibly lazy and sloppy. To support the claim that Scalia thinks being gay is destructive, they link to an article in which he's quoted as saying, "[I’m] not saying I personally think it’s destructive." That's.....sort of the opposite.
posted by jpe at 9:52 AM on October 7, 2013


If Scalia doesn't think being gay is destructive -- that it isn't the same as being a kleptomaniac, for example -- his opinion has changed in the last 15 years. Because he said it in 1996. To my fucking face.
posted by MCMikeNamara at 9:54 AM on October 7, 2013 [17 favorites]


To the contrary, he generally believes that many rights should be left to the people rather than determined by judges.

You're confusing what he says with what he does.

"Judicial restraint", and it's theoretical underpinning of "original intent" have both been demonstrated to be nothing more than a form of Calvinball endorsed by plutocrats and their minions.
posted by mondo dentro at 10:01 AM on October 7, 2013




Well, you’re saying the Devil is ­persuading people to not believe in God. Couldn’t there be other reasons to not believe?

Well, there certainly can be other reasons. But it certainly favors the Devil’s desires. I mean, c’mon, that’s the explanation for why there’s not demonic possession all over the place. That always puzzled me. What happened to the Devil, you know? He used to be all over the place. He used to be all over the New Testament.
Amen patriot. It's also why Zeus doesn't go around raping women all the time anymore - if Zeus can convince us that he doesn't exist, that makes it easier for him to convince us that Cronus doesn't exist.

I'm willing to take people at their word as to what their religious beliefs are. But even ignoring that, I don't see why it would be trolling. Known asshole has crazy literal religious beliefs, film at eleven.
posted by Flunkie at 10:23 AM on October 7, 2013 [3 favorites]


Amen patriot. It's also why Zeus doesn't go around raping women all the time anymore - if Zeus can convince us that he doesn't exist, that makes it easier for him to convince us that Cronus doesn't exist.

I think it's more that Zeus realizes that women are more likely to get it on with swans if it's not widely known that Zeus takes the form of a swan to put the moves on the ladies.
posted by straight at 10:27 AM on October 7, 2013 [2 favorites]


My mistake.
posted by Flunkie at 10:29 AM on October 7, 2013 [4 favorites]


Never said he was charming. To the contrary, he's got a brusque sense of humor. I can see why delicate flowers would find him not-so-funny.

Oh for fuck's sake, don't trot out that tired old patronizing "delicate flowers" chestnut.
posted by jason_steakums at 10:32 AM on October 7, 2013 [21 favorites]


jpe: "To support the claim that Scalia thinks being gay is destructive, they link to an article in which he's quoted as saying, "[I’m] not saying I personally think it’s destructive." That's.....sort of the opposite."

Only by an incredibly naive reading of his words.
posted by IAmBroom at 10:41 AM on October 7, 2013


The only recourse for anyone trying to make sense of our joint statement and jointly approved use of the word would be an interpretive strategy of precisely the kind "originalists" and "textualists" deprecate.

I'm not so sure I'd give up on these strategies quite so quickly. Surely the content and structure of our joint document, and perhaps the way such documents are commonly employed, might have something to say about the way we used the words in it. And even in our controversy here, I initially wrote, "every serious constitutional scholar is an originalist in the sense that" -- suggesting, by the caveat, that there might be some more central meaning of the term from which I was deliberately deviating.

Of course there are hard cases and gray areas when investigating historical meaning; but there are also hard cases when ascertaining moral purpose or legislative intent or policy goal or whatever other interpretational device is used.

In the end, construing the document so as to meet various extra-textual goals and trying to ascertain the meaning of the text in the context of its time and authors are inseparable methods; neither the originalist nor the non-originalist can dispense with either. The question mainly comes down to where the emphases are placed and which sources are weighted when faced with ambiguity, which in turn depends upon the interpreter's a priori notion of the document's purpose.
posted by shivohum at 10:41 AM on October 7, 2013 [1 favorite]


@ROU and others,

Whatever originalism is, it has to contain the idea that the document itself contains at least some definite information, that it is not just white noise -- that it is ambiguous but not infinitely ambiguous. You point out that that idea is problematic, and make some extremely good points about how historically contingent the writing of the Constitution was, and how open to interpretation it always has been since it was written. So, if originalism is wrong, and any interpretation depends on the reader not the document, then it seems obvious that the Constitution is not the supreme law of the land at all, it's just a piece of paper that the Justices ritually look at before deciding to rule however they want.

If that's true, then what I want is to just admit that the Supreme Court justices and the rest of the government have arbitrary power, constrained only by their own consciences, the threat of popular revolt or foreign invasion, anything but a piece of paper. That would be fine with me also, because at least we would all be on the same page. But thinking that the Constitution is somehow both on its own a check on what the government does, and also indefinitely subject to interpretation by that government, is absolutely just wanting to have your cake and eat it too.
posted by officer_fred at 10:42 AM on October 7, 2013 [1 favorite]


Or, there might be middle ground.

The Constitution might be supreme law, as filtered through the studied reasonings of the Supreme Court. Not intended to be ignored in any case nor clause whatsoever, but also not incapable of being reexamined by the current SCOTUS, should previous interpretations prove untenable in time, or simply inadequate or incompetent.
posted by IAmBroom at 10:46 AM on October 7, 2013 [5 favorites]


If that's true, then what I want is to just admit that the Supreme Court justices and the rest of the government have arbitrary power, constrained only by their own consciences, the threat of popular revolt or foreign invasion, anything but a piece of paper.

To some extent, this is empirically true. Political orientation is the biggest predictor of how judges will vote.
posted by MisantropicPainforest at 11:05 AM on October 7, 2013 [2 favorites]


Only by an incredibly naive reading of his words.

He's taking an originalist view of Scalia's words.
posted by Blazecock Pileon at 11:19 AM on October 7, 2013 [6 favorites]


If that's true, then what I want is to just admit that the Supreme Court justices and the rest of the government have arbitrary power, constrained only by their own consciences, the threat of popular revolt or foreign invasion, anything but a piece of paper.

There are multiple ways one could respond to this... MisantropicPainforest's is a logical one.

But let me try another one. The real question here is not whether or not we need to carefully consider limits on the judiciary in a constitutional republic. That's a pretty solid, if general, position to take. The problem, though, is that the right's use of "judicial restraint" and "original intent" is fraudulent, and thus causes damage on multiple levels: first, when they rule in ways that damage the will of the people, using their purported belief in originalism as a smoke screen, and second, and more gravely over the long haul, because they discredit and undermine the entire project of thinking clearly about appropriate judicial restraint.

Not that you'd want to take my work on this matter. Instead, read what noted conservative jurist Richard Posner has to say about it.
posted by mondo dentro at 11:26 AM on October 7, 2013 [3 favorites]


Meanwhile:

In new term, Supreme Court may steer to right on key social issues

"The Supreme Court's conservative bloc has a clear chance to shift the law to the right on abortion, contraception, religion and campaign funding."

I guess we'll have to see how a dispassionate examination of original intent and a strict adherence to textualism will magically lead to decisions which just so happen to move everything to the political right. Perhaps the constitution has a right-wing bias?
posted by VikingSword at 11:44 AM on October 7, 2013 [1 favorite]


I think Scalia got away with seeming intelligent because of the backlash against the hippies of the '60s. Hippies were young and what they had to say was naive, and so self-styled intellectuals of a certain generation recoiled with, "Wow, that's dumb!", and a reflexive defense of their status in the face of chaotic social liberation. Rigidity, tradition, and scorn for flexible thought became trappings of intelligence, and those trappings were enough. This led us to what we have now, a generation of old men whose entire intellectual framework consists of schoolyard taunts aimed at those damn hippies (who they resent too far having more fun than them).
posted by Schmucko at 12:27 PM on October 7, 2013 [3 favorites]


I would have asked him about the lack of former defense lawyers on the Supreme Court. There isn't currently someone with the background of Thurgood Marshall on the court. Even Sonia Sotomayor, perceived as a liberal, is a former prosecutor.
posted by larrybob at 12:54 PM on October 7, 2013 [2 favorites]


Yes, words have meaning. Usually many. And the many people who sign on to them have many different ideas about that meaning. And words are meant to embody principles, which then need to be applied to novel situations. So what is your point, again, Nino?
posted by Mental Wimp at 1:03 PM on October 7, 2013


And do you look at anything online?
I get most of my news, probably, driving back and forth to work, on the radio.

Not NPR?
Sometimes NPR. But not usually.

Talk guys?
Talk guys, usually.


Well, that explains a lot.
posted by Mental Wimp at 1:19 PM on October 7, 2013 [5 favorites]


I would have asked him about the lack of former defense lawyers on the Supreme Court. There isn't currently someone with the background of Thurgood Marshall on the court. Even Sonia Sotomayor, perceived as a liberal, is a former prosecutor.

That problem comes from the circuits, and from the district courts before them. But I agree that it would have been an interesting question for him to try to field.
posted by likeatoaster at 1:49 PM on October 7, 2013 [2 favorites]


I would have asked him about the lack of former defense lawyers on the Supreme Court. There isn't currently someone with the background of Thurgood Marshall on the court. Even Sonia Sotomayor, perceived as a liberal, is a former prosecutor.

There's also a severe lack of anyone other than Circuit court judges, now excepting Kagan. Brandeis was a brilliant private practitioner, Frankfurter was a law professor, Earl Warren was governor of California, and I believe Abe Fortas was the last defense lawyer. If Obama gets another appointment, let's hope he stays outside of the Circuit courts again, and picks someone other than another former prosecutor.
posted by T.D. Strange at 5:36 PM on October 7, 2013


The question facing Ruth Bader Ginsburg: Stay or go?

"“When I can’t do the job, there will be signs,” Ginsburg said. “I know that Justice [John Paul] Stevens [who retired when he was 90] was concerned the last few years about his hearing. I’ve had no loss of hearing yet. But who knows when it could happen?

“So all I can say is what I’ve already said: At my age, you take it year by year.”"

""Ginsburg understands politics but does not feel she faces a deadline to leave so that Obama, whom she admires, can choose her successor.

“I think it’s going to be another Democratic president” after Obama, Ginsburg said. “The Democrats do fine in presidential elections; their problem is they can’t get out the vote in the midterm elections.”"
posted by VikingSword at 6:22 PM on October 7, 2013 [1 favorite]


If Ginsburg doesn't want to resign before she's ready, fine, but her rationale - "I predict a Democratic president in 2016" - rings hollow. Who the fuck knows what's going to happen between now and then? I can't remember a single presidential election where the result was predictable three years out.
posted by mediareport at 8:47 PM on October 7, 2013 [2 favorites]


Excepting Nate Silver, of course.
posted by gjc at 9:59 PM on October 7, 2013


Allan Lichtman has done pretty well with the Keys. But Nate Silver scoffs at him, because he's been right too often (no, I'm not being sarcastic).
posted by dhartung at 3:22 AM on October 8, 2013 [2 favorites]


(no, I'm not being sarcastic).

No, just wilfully obtuse.
posted by yoink at 7:31 AM on October 8, 2013


Allan Lichtman has done pretty well with the Keys.

The Keys can only be an efficient predictor if every one of the keys has exactly the same impact on chances of election. And it produces no quantitative probabilities. The Keys are not science and there is good reason to believe that the perfect record is as much luck as anything else.
posted by Mental Wimp at 9:26 AM on October 8, 2013


The keys are also dreadfully subjective, which matters because by the time he can apply them the outcome of most elections is pretty obvious. By the time the challenger was selected in 1984, 1988, 1992, 1996, and 2008, the election outcome was obvious, and in 2012 and 2004 pretty-clear-but-not-obvious. So in most years, going through the keys can be just an exercise in forcing enough categories into whatever direction you need to generate the prediction everyone knows you'll make. Is challenger charisma low or high? Whatever you need! Were there policy failures? If there need to be!
posted by ROU_Xenophobe at 9:44 AM on October 8, 2013 [2 favorites]


So show us the model that's been right three years out for thirty years running.
posted by dhartung at 4:43 AM on October 9, 2013


It's fundamentally impossible for the keys to be right three years out, since some of them involve the challenger and you only know who the challenger is a few months before the election.
posted by ROU_Xenophobe at 5:58 AM on October 9, 2013 [1 favorite]


Or, if you'd rather: before I bother trying to do that, you show me Lichtman's predictions that he made three years out.

*NOT* Lichtman saying in 2008 what he predicted in 2005, or from 2005 saying that he knew 2004's result in 2001. Show me something from 2005 that contains a clear, firm prediction for 2008, etc etc.
posted by ROU_Xenophobe at 6:03 AM on October 9, 2013 [1 favorite]


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