arcana imperii
December 21, 2004 8:14 PM   Subscribe

As two thirds of Americans polled cannot name any Supreme Court justices, these "Ten Things . . . About Scalia and Thomas" may not affect many people.
posted by orange clock (34 comments total)
 
from Salon.
posted by orange clock at 8:15 PM on December 21, 2004


Frightening.
posted by nj_subgenius at 9:10 PM on December 21, 2004


Not good, OC, and that's not a comment on the quality of the FPP. Not good in the sense of a primary reason I was scared of Bush's re-election.
posted by billsaysthis at 9:11 PM on December 21, 2004


I hear Scalia's in line for Rhenquist's job as Chief Justice--and he certainly was no prize himself. Very scary.
posted by amberglow at 9:16 PM on December 21, 2004


Even scarier is the fact that although both were nominated by Republican presidents, they were effectively appointed (ie: confirmed) by a senate controlled by Democrats.
posted by BlueMetal at 9:26 PM on December 21, 2004


My question is, not to be defeatist, but does this matter? The voting public only has the faintest idea that they control the make-up of the bench by who they put in office in the Legislative and Administrative branches, and considering how rarely judges come up for replacement this is easy to understand. It seems not to matter if I can name the lot; they're elected without my involvement and are nearly impossible to remove except by a congress who doesn't listen to me anyway.
posted by Vaska at 9:29 PM on December 21, 2004


While that cherry-picked list of complaints by the "non-partisan" Center for American Progress is entertaining, it's hardly illustrative of the justices' record. To say that they oppose family and medical leave because they believe that Congress exceeded its power in passing the law is hardly helpful. It's really no better than twisting the records of the liberal judges, or Bill Clinton or whomever. They're conservative, no doubt, but this list is a little over the top. And if a think tank wants to be known as non-partisan, it shouldn't title articles "Ten Things President Bush Doesn't Want You To Know About Scalia and Thomas".

Just read the judgements. For example, the "shocking" secret about Scalia, that he "approvingly cited the execution of homosexuals" and condemned the homosexual agenda. If you read his dissent, you'll see that that characterization of his opinion is little more than a cheap shot:

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.


Whether or not one agrees with that (and I don't), it's clear that there's a little more to it than Scalia's hatred for homosexuals. Again, I'm not saying they're not conservative, or that they've been misunderstood and you should readily agree with their dissents. Only that a quick and prejudicial paragraph that misrepresents pages and pages of legal research and opinion is hardly productive, and that it would be well worth it to read the cases in their entirety to determine exactly what happened and why they sided the way they did.

Of course, orange clock, you're probably right. So few people are paying attention that it hardly matters.
posted by loquax at 9:41 PM on December 21, 2004


loquax: i appreciate your attempt at balance.

that said, the CAP doesn't *have* to cherry-pick scalia's opinions to portary him as a goon. his blatantly partisan opinion in Bush v. Gore decimated any hope of his having legacy as a principled jurist.

if you care to debate that, then please let's.


(i say this not as some DNC mole, but as a student of the law.)
posted by joe lisboa at 10:13 PM on December 21, 2004


Eleven: Scalia is a member of OpusDei ,His father was openly facist.more here
posted by hortense at 10:20 PM on December 21, 2004


* "portray," of course.

... whiskey, sorry.
posted by joe lisboa at 10:33 PM on December 21, 2004


Whether or not one agrees with that (and I don't), it's clear that there's a little more to it than Scalia's hatred for homosexuals

What makes you so sure? Just because he wrote a lot? A part of me agrees with you, but it seems clear that he's singling out homosexuals for discrimination here. How about this:

I would no more require a State to criminalize heterosexual 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.

Conservative doctrine says that the government should stay out of people's lives. He's just backhandedly arguing that rights which we take to apply to everyone do not apply to homosexuals. It's just like the people who cry "The gays want *special* rights all for themselves!" when they ask for equal treatment under the law. There's certainly a case to be made that this man is targeting homosexuals.
posted by ludwig_van at 10:35 PM on December 21, 2004


I recall sitting around at a small party with a senior in college. She could not name her governor, her representatives in the US Senate, or her Vice President. She was a senior in college.

If a poll was taken of a fair sample of all Americans, the average person at a place like MeFi would be stunned at how many people could not name those high profile, elected positions.
posted by flarbuse at 10:43 PM on December 21, 2004


scalia being a member of Opus Dei...is terribly frightening...but I'd not be surprised if Dubya was a member of that or the trilateral society. I joke and say he's an idiot...but deep down inside...I think there's a lot tickin' in Dubya's brain...and it ain't for the good of the country either...more like an agenda.

As far as the 10 things go...hmmm...I'm probably dense and will get shot down on these. but these were some gut reactions to that stuff:

- scalia wants to keep blacks and whites from going to school together? I tried reading up on this from their links they provided...I really didn't see much that showed that. I do know in the court order they were talking about the desegregation of Deklab schools in atlanta (and how great of a school system/place it was). Last year they were cited for "altering the grades" because they were so fucking horrible...you couldn't pay me to live in Dekalb if my life depened on it. But, if Scalia really, honestly did not want races going together at a school...then yes, we have a huge problem on our hand.

- the sex discrimination thing...okay...I'm split on this. if it's government funded...then "welcome hawt chix!" but if it's privately funded...then they can only admit handlebar mustached brunette men and I'm totally cool with that. I really don't want the government telling me what I can and cannot do in my business (because it's privately owned) however I EXPECT them to tell me wife what to do (and EXPECT her to follow it) because she works at a public, government funded school. -- and yes, I hate (with a great passion) that "no child left behind" nonesense...but I still expect my wife to follow it (so does her school)

- the thing about state-sponsored religion? I can't see this as a total bad thing (but... I can too). If Virginia wants to become a "Buddhist State" and that's the official religion there...then that's all fine and dandy...I'll move to a state that believes in "free to worship (or not worship) as you please." Like i said, I can see good and bad to this.

and as far as Scalia supporting the sodomy thing(to be bad)and that people can't do what they want to do in the privacy of their own damn home--well once again, we have a problem here.

But upon further reading when that whole story came out, I seemed to have remembered those fuckers were making a hella lot of noise and disrupting the neighbors with their sexual acts. -- Even if Lindsay Lohan and Paris Hilton were going at it in the house next to me...I'd call the cops and ask that they stop (if they were disrupting my peace and quiet with their sexual acts in their home). If not, then carry along...go have a leather whipping fuckfest for all I care...just don't bother me with your shit.

(I'm keenly aware that someone will say that seeing/hearing Lindsay and Paris in a lesbo adventure could not be a bad thing at all. But do know...I'm talking about when my privacy is affected and I was using this as an example).

no. I'm not a conservative by any means...and yes I'm basically just belly aching and will welcome a counter point that I will respect and consider. All this was just a gut-reaction to the top 10 thing
posted by Hands of Manos at 10:55 PM on December 21, 2004


Scalia has a clear judicial philosophy. I don't agree with it, but I think that he is (often) consistent. In essence, he argues that we can't read things into the constitution that aren't explicitly there, or that we have strong evidence that the founders intended. He makes one very good point: if we do expand interpretation from this literalist perspective, who gets to do it? He makes a compelling point: I don't want a wingnut to do it and he doesn't want a liberal to do it, so being literal seems to make sense. This leads him to draw a fairly narrow band around what is consitutionally protected.

Of course, the gaping holes include 1) How does anyone know framers intent, 2) he has stated point-blank that he believes very few issues get Cert that challenge the literalist confines and 3) that is contrary to a Marshallian idea of an active court.

Still, I hold that Scalia is not a wingnut conservative on most issues, he just has a specific legal interpretation strategy that he applies most of the time. On privacy, for example, he upholds strong 4th amendment stuff (his Kyllo opinion was great) but since the 4th only talks about *searches* there is no constitutional protection of privacy once the data has been obtained. Many of his other policy statements are not constitutional, but reflect what he thinks is good policy.
posted by allan at 11:25 PM on December 21, 2004


Hands of Manos: correct me if i'm wrong, but if Opus Dei is a Catholic organization, what in the *world* would W have to do with them?
posted by joe lisboa at 11:31 PM on December 21, 2004


Joe, reread what I said:

"but I'd not be surprised if Dubya was a member of that or the trilateral society"

you are right though and I apologize for the shot off about that and not thinking it through. no excuse, I just brain farted.
posted by Hands of Manos at 11:44 PM on December 21, 2004


Are we supposed to memorize the name of every single politician out there?

I was just watching Fahrenheit 9/11 and realized that I didn't recognize a single Congressman in the movie.

When there's 535 of them, it's not hard to do.

But the 9 Supreme Court justices, that's a different story altogether.
posted by Critical_Beatdown at 12:04 AM on December 22, 2004


Twelve:Revising history discussions here
posted by hortense at 12:09 AM on December 22, 2004


But upon further reading when that whole story came out, I seemed to have remembered those fuckers were making a hella lot of noise and disrupting the neighbors with their sexual acts.
They were set up--their neighbors didn't want a (interracial) gay couple living next door: In 1998, police in Texas responded to a false report, which may have been phoned in by a disgruntled neighbor. They entered the apartment of John Geddes Lawrence, and found him engaged in anal sex with another male: Tyron Garner. Both were arrested and jailed overnight. They are an inter-racial couple -- a factor that may have influenced the police to arrest them, but which has been studiously avoided by the media.

But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else.
Funny how he felt exactly the opposite way in Bush v. Gore, huh? Both Scalia and Thomas are good GOP operatives, and Bush will now get to appoint more of them.
posted by amberglow at 5:08 AM on December 22, 2004


What I worry most about is any new ones that get installed will make the current batch look reasonable and sane...
posted by Enron Hubbard at 5:30 AM on December 22, 2004


"But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else."

So does this mean that minority rights are not to be respected? That scares me more than any agenda, be it right wing or left wing.
posted by infowar at 6:51 AM on December 22, 2004


Metafilter: naive and facile
posted by briank at 6:54 AM on December 22, 2004


Are we supposed to memorize the name of every single politician out there?
Ummm... Judges are supposed to be explicitly NOT politicians. Of course, one could reasonably wonder.......
posted by raedyn at 7:01 AM on December 22, 2004


So does this mean that minority rights are not to be respected?

This is the problem with interpreting judicial decisions. It's very easy to read whatever you want into them. There is no such thing as "minority rights". The only "rights" that anyone enjoys are the rights afforded to them by the constitution and the interpretation thereof. Scalia in the Texas case asserted that the Court violated a state's due process "through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change." The palatability of this statement is not something I'm disputing, just that it is a valid legal opinion, or at worst, a debatable one. It is *not* "suppression of minority rights", even if one's perception is that such suppression is an inevitable consequence. It's the responsibility of lawmakers to change the law if that is the case, or to enforce it with that in mind. In the American constitutional tradition, it is not the job of the Courts to make law (with notable exceptions). Whether you agree with that or not, it's what Thomas and Scalia and many many others believe. When examined through that prism, their decisions are justifiable. Which isn't to say that they aren't sympathetic to the Republican party's values, or that you shouldn't continue to vilify and demonize them, just that it doesn't make them any more evil or scary than your average conservative. Nor does it mean that they "SUPPORT BRUTALITY AGAINST PRISONERS", "OPPOSE FEDERAL ENVIRONMENTAL REGULATION OF POLLUTERS", or "WOULD ALLOW STATES TO DISCRIMINATE AGAINST THE DISABLED".

Unless of course, you've been reading The Da Vinci Code late at night and can't stop thinking about what Scalia has under his robe.
posted by loquax at 7:32 AM on December 22, 2004


amberglow.

then that's horrible if they were set up. what kind of lousy ass'd human does that sort of thing!?!?!
posted by Hands of Manos at 7:39 AM on December 22, 2004


THOMAS FAVORS STATE-SPONSORED RELIGION: Thomas has "advanced the position" that constitutionally mandated church/state separation applies "to the federal government, but not to individual states – a position that would allow Virginia, for example, to declare a state religion."

Interesting to reflect on. Some states would be easy, a Baptist North Carolina or a Morman Utah, but what about Florida? It would have to be a Santera-Jewish-Luthern (all those Minnasota snowbirds, you know) State religion.
Any chance of a Wiccan Oregon?
posted by Secret Life of Gravy at 7:41 AM on December 22, 2004


Liberals shouldn't worry too much. Given the ages of the Justices and the fact that Republican appointees stay about 50% conservative (weighting for wets like Kennedy and O'Connor and total losses like Souter and Stevens) it's mathematically improbable for the court ever to get to even a predictable 5-4 conservative majority.
posted by MattD at 8:23 AM on December 22, 2004


Are we supposed to memorize the name of every single politician out there?

No, but you should be able to name the President, the Vice President, most cabinet members, your Federal and State congressmen, your Governor, and the members of the Supreme Court. If you don't know at least all of these by the time you're a functioning adult, you're a fucking idiot who shouldn't bother registering to vote.
posted by Optimus Chyme at 8:25 AM on December 22, 2004


Oh jeez.

you're a fucking idiot who shouldn't bother registering to vote.

I'll start with that. People who discourage others from voting ought to be ashamed of themselves. How many cabinet members should you be able to name, Optimus? If I forget that Ann Veneman stepped down from Agriculture last month, do I lose my franchise?

From the link in the post:

SCALIA OPPOSES EFFORTS TO DESEGREGATE SCHOOLS
THOMAS FAVORS STATE-SPONSORED RELIGION
SCALIA SUPPORTS SEX DISCRIMINATION
SCALIA AND THOMAS OPPOSE FAMILY AND MEDICAL LEAVE
SCALIA AND THOMAS SUPPORT EXECUTING THE MENTALLY RETARDED
SCALIA AND THOMAS SUPPORT BRUTALITY AGAINST PRISONERS
SCALIA AND THOMAS SUPPORT CRIMINALIZING CONSENSUAL SEX
SCALIA AND THOMAS OPPOSE FEDERAL ENVIRONMENTAL REGULATION OF POLLUTERS


Does John Paul Stevens enjoy gay sex? After all, he voted to overrule Bowers v. Hardwick. Herein lies the logical fallacy.

By conflating their legal views with their personal views (of which we know very little), well-meaning public interest groups are succumbing to the same "activist judge" BS spewed by the right against the judges who rule favorably to left-wing points of view.

Scalia and Thomas have no public view on whether consensual sex should be criminalized. They have views on whether the constitution forecloses the possibility. Should a state pass a law banning executions of the mentally retarded, as many have, this policy choice would not be ripe for legal review. The Court would respect that decision as a policy choice of the state legislature.

The divergence between the Scalia/Thomas/Rehnquist wing of the Court and the Breyer/Ginsburg/Stevens wing is the fundamental difference of opinion on whether the Constitution is flexible enough to protect rights that were not textually enumerated and were not contemplated by its drafters. Both sides of this issue are clearly intellectually legitimate. It's dangerous and misleading to conflate these views with personal policy choices, over which the Justices have no jurisdiction.

Whether you agree with Scalia's and Thomas's views on interpreting the Constitution (I don't,) I understand the merits of these positions. I also think Scalia is one hell of a persuasive legal writer. Bush v. Gore notwithstanding, please don't oversimplify the debate by labeling them as GOP hacks and disregarding everything they say. Their only constituency is a document.
posted by Saucy Intruder at 9:47 AM on December 22, 2004


I recall sitting around at a small party with a senior in college. She could not name her governor, her representatives in the US Senate, or her Vice President. She was a senior in college.

If a poll was taken of a fair sample of all Americans, the average person at a place like MeFi would be stunned at how many people could not name those high profile, elected positions.
posted by flarbuse at 10:43 PM PST on December 21


I remember being in a college Spanish class in October of 1996. Our teacher wanted us to write, in Spanish, a little paragraph about the presidential elections. Half the class DID NOT KNOW WHO WAS RUNNING FOR PRESIDENT. In October.
posted by papakwanz at 10:07 AM on December 22, 2004


saucy intruder: again, well put.

but can we really just bracket off Bush v. Gore and treat it like an election-year anomaly? i mean, look how it's been "treated" in this thread: trharlan casually tosses out a lamely predicatble snark, and while i do see where you're coming from, your treatment suggests (at least implicitly) that there's something fishy at work in scalia's opinion there, but basically it's nothing worth losing sleep over. (correct me if i'm wrong; not interested in putting words in anyone's mouth, here)

if scalia sold out his strict-constructionist interpretative views in Bush v. Gore for reasons of grossly pragmatic realpolitik, doesn't that just blow away any serious claim we can make, now, about his being beholden "only to a document"?

again, i'm not some Gore 2000 campaign hack or anything, i'm a law school grad that just witnessed a Scalia speech at my alma mater, and left it feeling, well, perplexed.

and had.
posted by joe lisboa at 10:49 AM on December 22, 2004


Saucy intruder: your paragraph beginning "The divergence between" is the best description of the current Court I've ever seen, no kidding.
posted by MattD at 11:32 AM on December 22, 2004


I'll start with that. People who discourage others from voting ought to be ashamed of themselves.

I didn't say they shouldn't vote. I said they shouldn't bother to register, since they won't know who or what they're voting for anyway.

How many cabinet members should you be able to name, Optimus?

Seven. No, eight.

If I forget that Ann Veneman stepped down from Agriculture last month, do I lose my franchise?

Reading is hard, I guess. I didn't say you should lose your franchise, I said "you shouldn't bother registering."
posted by Optimus Chyme at 1:38 PM on December 22, 2004


but can we really just bracket off Bush v. Gore and treat it like an election-year anomaly?

No, we can't, unfortunately. The real problem with Bush v. Gore was not its outcome, but the Court's decision to grant certiorari. There was no important issue of federal law in Bush (compare Supreme Court Rule 10), a fact that Justice Breyer recognized succinctly in his dissenting opinion. The issue was merely politically important, not legally important, so Supreme Court jurisdiction was improvident.

The outcome of the case on the merits - that the recount procedures violated the Equal Protection Clause - was so tightly limited to its facts that its effect as binding precedent in a future case is almost nullified. Having known this ahead of time, the Justices should have denied cert. Since they didn't, politics seems a good as explanation as any in filling the void left by the absence of persuasive substantive legal reasoning.

I don't expect those in the citizenry who can't name seven cabinet members to understand this distinction. But it's scary that many liberals will harp on Justice Thomas "favor[ing] state-sponsored religion," while ignoring Justice Scalia's claim that Thomas "doesn't believe in stare decisis, period." If accurate, this statement is scarier than a thousand white-hot Roe v. Wades.

We have the right to be critical of judges, of course, but it would help matters greatly if we focused that criticism on how they go about judging instead of the conclusions we draw about their personal views on public policy matters.
posted by Saucy Intruder at 2:49 PM on December 22, 2004


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