Monday, February 15, 2016

Ding Dong!

There is an adage that upon death if you cannot say something nice about someone say nothing at all. How absurd and the death of Scalia is one such occasion where the exception is the rule.

As the media now lionize the man who was until his death thought of as angry right wing religious nut, I found numerous articles of the last couple of years that have argued that his demeanor, his decisions but more importantly his nasty temperament that sent a message that resonated beyond his decisions.  And so I quickly found numerous articles that were written the last few years that were anything but laudatory.

When I heard Scalia was dead I was at the gym and I jumped off the treadmill and started screaming.. 'huzzah, ding dong the old bitch is dead!!" I was thrilled and thought Obama could nominate Hilary Clinton, Eric Holder, Anita Hill or even himself and say "Joe can take it for the next year, it's all good."

I know that the last laugh will not be mine nor even President Obama as the sick games of our disturbing Senate and their own agenda takes precedent over the law and the Constitution that supposedly Scalia loved just apparently a little less than Jesus, although it seems debatable that Jesus took precedent and sat on the court as well, clearly muddling that whole church state thing.  But the docket of the Court was full, with all things that included 4th Amendment issues regarding implied consent, more Obamacare, Voting Rights, Affirmative Action and the tip facing women and their right to choose.  We have the Climate Change and immigration issues that also cannot be ignore and to ask any Justice to step in and get up to speed will be a matter of import and is that possible?

 I expect this debate to one that the legal "minds" of the media will have more masturbatory fantasies than those that came from the thoughts of Beyonce, hot sauce and the Red Lobster.


Surprise! Justice Scalia Is Biggest Jerk On The Court

  • A smart-ass law professor decided to do A Serious Study on Supreme Court justices and sarcasm. You’ll never guess who wins The Most Sarcastic Justice award:
    Justice Scalia is the most sarcastic Justice on the Supreme Court. He has been for at least the last thirty years, and there is good reason to believe no other Justice in history has come close to his level of sarcasm. Now your first reaction to this claim, if you are a (sarcastic) Supreme Court aficionado, is probably: “Well, duh!” And your second reaction is likely: “Oh really? Well how can you prove that?”
    He’s even got a fancy chart and everything to show you just how more-sarcastic-than-every-other-justice Scalia is.
    sarcasm-index1 While we would never approve of sarcasm (yes, dummy, that’s sarcasm), Professor Rick Hasen says it’s not just that Scalia is more sarcastic than everyone else put together; he’s also just kind of a royal a-hole. Yeah, we know. You’re shocked and amazed, right?
    His ability (and willingness) to engage in nastiness, particularly directed at other Justices’ opinions, is unparalleled. Third, I opine that Justice Scalia’s sarcasm is a mixed blessing. On the one hand sarcasm makes his opinions punchy and interesting, clarifying where he stands in a case and why and gaining attention for his ideas. On the other hand, such heavy use of sarcasm can demean the Court, and it arguably demonstrates Justice Scalia’s lack of respect for the legal opinions of his colleagues. In the end, his sarcasm may be his most enduring legacy.
    Please make all the jokes now. Sarcasm optional.

Justice Scalia Isn't Charming. He's Just Mean.

New York magazine published an interview with Justice Antonin Scalia this weekend, and right off the top, we're reminded of the common Washington wisdom regarding the conservative judge: He's just so adorable. "He is smaller than his king-size persona suggests, and his manner more puckish than formal," writes Jennifer Senior, who goes on to say that Washingtonians know Scalia as "charming and disarming."
You often hear this about Scalia, that he's got charm, that he's "merry," "gregarious," and "funny." Many of the same people who loathe his views find him downright delightful. But I must confess: I don't see it. There is nothing cute or funny about a mean old man railing on, as he does in this interview, about how terrible it is that he can't go to a movie "without hearing the constant use of the F-word—including, you know, ladies using it." I don't hear a cavalier wit when he belligerently defends believing in the devil by saying, "I mean, Jesus Christ believed in the Devil! It’s in the Gospels!"

There's nothing amusing about his description of gays as "destructive." I just hear a mean old bigot who is resisting modernity with every ounce of his being, the polar opposite of the cosmopolitan open-mindedness that leads to true charm and wit. He defends his unwillingness to engage in anything but right-wing media by saying, "[W]hy should I get upset every morning?" and then turns around and derides the younger generations for creating a "narcissistic society." That's not charm. Charm requires more self-awareness than this hypocrite has.
Part of the problem is that American culture positions the cantankerous old coot as a charming figure of fun, which is easier than admitting that he's a nasty tyrant. We laugh indulgently when Grandpa makes jokes about how kids these days need to pull up their pants and get a job. We giggle when our uncle tells us that if we don't drop this feminism stuff, we're never going to find a husband. You've seen Grumpy Old Men, right? The coots often do it with a twinkle and a chuckle, knowing that it's unlikely anyone will actually push back (because elders, respect, etc). "Oh, that's just Scalia being Scalia again. Isn't that cute?"
It isn't cute. It's not cute when the relatively harmless old man at the coffee shop is rambling on again about how the rappers are ruining music, and it's even more grotesque when the cranky old man in question has real political power, as Scalia does.
There's a third option beyond just writing men like this off as cute or actively trying to argue with them: Start practicing the disdain for them they are so good at showing the rest of the world. It might feel unnatural after living in a culture that teaches that the proper reaction to the gruff old fart is to find his shtick amusing, but with practice, you'll soon find it easy to respond to Scalia or your local grumpy grandpa with the immortal phrase, "Christ, what an asshole."

Here Are the 7 Worst Things Antonin Scalia Has Said or Written About Homosexuality

This week the Supreme Court will hear arguments about equal rights for gay Americans. But we already know what Scalia thinks.

  Mother Jones Tue Mar. 26, 2015
Justice Antonin Scalia has written that "it is our moral heritage that one should not hate any human being or class of human beings." Judging by the things he has said in court or written in his legal opinions about gays and lesbians, he doesn't really mean it.

On Tuesday and Wednesday, the Supreme Court will hear oral arguments over whether the Defense of Marriage Act and California's ban on same-sex marriage are constitutional. Despite Scalia's long public history of expressing revulsion and contempt for gays and lesbians, on the subject of whether people of the same sex should be allowed to marry, he is among the nine people whose opinions will really matter. Here are the lowlights of Scalia's anti-gay comments:

"Flagpole Sitting"
What's a little frat-boy humor between justices? In 2003, during oral arguments in Lawrence v. Texas, the case challenging a Texas law that criminalized homosexual sex, Scalia came up with a tasteless analogy to illustrate the issue. "[S]uppose all the States had laws against flagpole sitting at one time, you know, there was a time when it was a popular thing and probably annoyed a lot of communities, and then almost all of them repealed those laws," Scalia asked the attorney fighting the Texas law. "Does that make flagpole sitting a fundamental right?"

Let's throw gay people in jail because some people don't like them
In his dissent in Lawrence, Scalia argued that moral objections to homosexuality were sufficient justification for criminalizing gay sex. "Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home," he wrote. "They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive." Some people think obesity is immoral and destructive—perhaps New York Mayor Michael Bloomberg should have imprisoned people who drink sugary sodas rather than trying to limit the size of their cups.

Laws banning homosexual sex are like laws banning murder
In his dissent in the 1996 case Romer v. Evans, which challenged Colorado's ban on any local jurisdictions outlawing discrimination on the basis of sexual orientation, Scalia brought out an analogy that he's used to attack liberals and supporters of LGBT rights for years since. "Of course it is our moral heritage that one should not hate any human being or class of human beings," Scalia wrote, in the classic prebuttal phrasing of someone about to say something ludicrous. "But I had thought that one could consider certain conduct reprehensible—murder, for example, or polygamy, or cruelty to animals—and could exhibit even 'animus' toward such conduct. Surely that is the only sort of 'animus' at issue here: moral disapproval of homosexual conduct[.]" It's true that people generally disapprove of murder, but there's more going on in laws banning murder than mere disfavor—the rights of the person being murdered, for example.

...And like laws banning child pornography, incest and bestiality
Scalia decided to take the "moral disapproval" argument up a notch in his dissent in Lawrence, writing that the Texas ban on homosexual sex "undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are 'immoral and unacceptable,'" like laws against "fornication, bigamy, adultery, adult incest, bestiality, and obscenity." Scalia later tees up "prostitution" and "child pornography" as other things he thinks are banned simply because people disapprove of them.

Homosexual couples are like roommates
Not content to analogize laws singling out people on the basis of sexual orientation to laws banning murder, Scalia suggested in his dissent in Romer that the relationships of same-sex partners were comparable to those of roommates. "[Colorado's ban] prohibits special treatment of homosexuals, and nothing more," Scalia wrote. "[I]t would prevent the State or any municipality from making death benefit payments to the 'life partner' of a homosexual when it does not make such payments to the long time roommate of a nonhomosexual employee." Like his "flagpole sitting" comment, this remark goes far beyond the law in expressing Scalia's basic animus towards same-sex couples, implying that what they experience together cannot even properly be considered love.

First they came for the Cubs haters...
Scalia's dissent in Romer is a long lament over the supposed "special rights" being granted to people on the basis of sexual orientation. In one section, he complains that banning discrimination based on sexual orientation in hiring amounts to granting gays and lesbians special treatment that Republicans, adulterers, and Cubs haters don't get. He writes "[A job] interviewer may refuse to offer a job because the applicant is a Republican; because he is an adulterer; because he went to the wrong prep school or belongs to the wrong country club; because he eats snails; because he is a womanizer; because she wears real animal fur; or even because he hates the Chicago Cubs."

Have gays and lesbians tried NOT having homosexual sex?

During oral arguments in Lawrence, the attorney challenging the Texas law argued that it was "fundamentally illogical" for straight people to be able to have non-procreative sex without being harassed by the state while same-sex couples did not have the right to be "free from a law that says you can't have any sexual intimacy at all." But Scalia pointed out that gays and lesbians could just have sex with people of the opposite sex instead. "It doesn't say you can't have—you can't have any sexual intimacy. It says you cannot have sexual intimacy with a person of the same sex." Later on in his dissent, Scalia argued that Americans' constitutional right to equal protection under the law wasn't violated by the Texas law for that reason. "Men and women, heterosexuals and homosexuals, are all subject to [Texas'] prohibition of deviate sexual intercourse with someone of the same sex." That should sound familiar: It's the same argument defenders of bans on interracial marriage used to make, arguing that the bans were constitutional because they affected whites and blacks equally.

Scalia has been on a tear lately, calling the Voting Rights Act a "racial entitlement" and ripping into the president in a dissent on Arizona's harsh anti-immigration law in the middle of an election season. But when it comes to LGBT rights, he's been off the rails for a long time.

And to add another nail in that son of bitches coffin.. he was clearly so religous that facts simply were beyond his grasp. So is this someone we will really miss?

In a graduation speech at his granddaughter’s high school last Thursday, Supreme Court Justice Antonin Scalia revealed that he believes humanity has been around “some 5,000 years or so.”  Speaking to the crowd of teenagers and parents, he said:
Class of 2015, you should not leave Stone Ridge High School thinking that you face challenges that are at all, in any important sense, unprecedented. Humanity has been around for at least some 5,000 years or so, and I doubt that the basic challenges as confronted are any worse now, or alas even much different, from what they ever were.
Given we know that humanity is at least 195,000 years old (and possibly almost twice that), Scalia’s estimation is off by a minimum of 190,000 years and in direct contradiction to every reputable scientist on the planet. Scalia, who is deeply conservative and known to be extremely religious, is one of the most powerful and respected men in America. Knowing that he takes the text of a book based on 5th hand accounts of fairy tales told by goat herders in the Bronze Age more seriously than scientists is frankly shocking. Not only is it shocking, but completely unacceptable given Scalia’s position in society.

To reiterate – a Supreme Court Justice believes the human species is only 5,000 years old. 

And to conclude that Scalia was simply sending a message that Lawyers did not need - that being an asshole was an acceptable course of business. Clearly that is one message Lawyers do not need and should perhaps try to be less of.  Well one down a few million to go.

Justice Scalia: Why he's a bad influence

Justice Antonin Scalia is setting a terrible example for young lawyers. Ignore, for now, his jurisprudence, his famously strict originalism; it's his tone that's the problem.

I have taught argumentation for many years, first as an instructor to high school and college debaters, currently as a law professor. Throughout my career I have always cautioned students away from nastiness as a crutch for those who cannot win using reason or legal precedent. I have told them to stick to persuasion and to dissecting the opposition's logical fallacies.
But lately my students have been turning in legal briefs laced with derision and ad hominem barbs. For this trend, I largely blame Scalia. My students read his work, find it amusing and imitate his truculent style.

Scalia has long relied on ridicule. In past years he has dismissed his colleagues' decisions as "nothing short of ludicrous" and "beyond absurd," "entirely irrational" and not "pass[ing] the most gullible scrutiny." He has called them "preposterous" and "so unsupported in reason and so absurd in application [as] unlikely to survive."

Scalia's opinions this term, however, were especially nasty, sarcastic and personal.

Consider several examples. In his dissent in Obergefell vs. Hodges, which declared unconstitutional state laws prohibiting same-sex marriage, Scalia said that Justice Anthony M. Kennedy's majority opinion was "as pretentious as its content is egotistic" and that its "showy profundities are often profoundly incoherent."

In a footnote he wrote, "If, even as the price to be paid for a fifth vote, I ever joined an opinion for the court that began: 'The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,' I would hide my head in a bag." He likened the majority opinion to "mystical aphorisms of the fortune cookie."

Such mockery does not amount to a legal argument; it's nothing more than an attack on the author's writing technique. A litigator who compared an opponent's brief to a fortune cookie likely would be, and should be, sanctioned by the court.

In Glossip vs. Gross, which upheld the three-drug protocol used in lethal injection, Justice Stephen G. Breyer urged the court to solicit arguments on the death penalty — specifically whether it's a cruel and unusual punishment and thus in violation of the 8th Amendment.

Scalia wrote a scathing response. He referred to Breyer's opinion as "gobbledy-gook" and said his argument was "nonsense." He concluded by stating, "Justice Breyer does not just reject the death penalty, he rejects the Enlightenment."

What did Breyer do to deserve this treatment? He was hardly the first member of the Supreme Court to question the death penalty's constitutionality. Fellow doubters include Justices William J. Brennan Jr., Thurgood Marshall, Harry A. Blackmun and John Paul Stevens.

I do not mean to suggest that Scalia is the first or only member of the court to use invective. Nor do I deny that some find such language entertaining or delightfully funny. But Scalia's browbeating is childish, even vain; like a harshly negative book critic, he revels in his own turns of phrase. And his attitude, just like his legal theory, affects the profession as a whole.

Scalia's spiteful recent dissents probably reflect frustration; after all, he was on the losing side of several major cases. Still, that's no excuse for lashing out. Nor should either liberals or conservatives dismiss such behavior as just "Scalia being Scalia."

If legal professionals ignore Scalia's meanness or — worse — pass around his insults at cocktail parties like Wildean witticisms, they'll encourage a new generation of peevish, callous scoffers.

Why we should ignore Justice Scalia’s nasty zingers

The Washington Post 

David Kravitz served as a law clerk for Supreme Court Justice Sandra Day O’Connor from 1994 to 1995 and for then-U.S. Court of Appeals Judge Stephen Breyer from 1993 to 1994.
Justice Antonin Scalia ended up on the losing side of two of the biggest cases from the Supreme Court’s just-concluded term: King v. Burwell, the Obamacare case, and Obergefell v. Hodges, the same-sex marriage case. But his dissenting opinions were probably quoted more often, and more extensively, than the majority opinions that laid down the law. Who, after all, could resist including Scalia’s use of “jiggery-pokery” in a story about King, or otherwise focusing on Scalia’s “zingers” at the expense of the substance of the cases? Hardly anyone, apparently. Google “jiggery-pokery,” and you’ll see what I mean.

There’s no denying that Scalia’s turns of phrase are, in Boston Globe columnist Dante Ramos’s words, “fun to read.” As I read through Scalia’s apoplectic dissenting opinion in Obergefell, I confess to smiling at the footnote in which he said he wouldn’t join an opinion that began the way Justice Anthony Kennedy’s majority ruling did without hiding his head in a bag. Guilty.

But why is a Scalia zinger entertaining? It’s entertaining because it shocks. It’s entertaining because you cannot quite believe that a Supreme Court justice would treat one of his colleagues with such profound disrespect. When you see it actually happen in black and white, it’s astonishing.

It’s a bit like mud-wrestling: appalling, yet difficult to look away from. Or maybe not mud-wrestling so much as the judicial equivalent of pornography. Like porn, Scalia’s zinger-laden opinions are titillating, but over time they coarsen the culture of which they are a part. Cultural critics lament the “pornification” of advertising, pop culture and other aspects of contemporary society. Legal observers should similarly lament the “Scaliafication” of judicial opinions — especially dissenting opinions, which have a long and honorable history at the Supreme Court.

Of course, dissenting justices have always sought to call attention to the errors supposedly committed by the majority with which they disagree. That, after all, is a dissenting opinion’s purpose. But they rarely used to do so in the intensely personal, unnecessarily antagonistic terms that Scalia favors.
In the past, dissents made for good reading not when their insults were especially clever but when they put forth a particularly compelling legal argument, such as Justice Oliver Wendell Holmes Jr.’s famous dissenting opinion in Abrams v. United States, in which he introduced to U.S. jurisprudence the notion that the First Amendment requires a robust marketplace of ideas.

Or, as another example, Scalia’s own brilliant, prescient and zinger-free dissent in Morrison v. Olson, written less than two years into his Supreme Court tenure, in which he both set out a compelling separation-of-powers argument and also predicted, with uncanny accuracy, how a law authorizing the creation of an independent prosecutor could go wrong. Now, though, as we approach the 30th anniversary of Scalia’s joining the court, the unfortunate trend of justices following Scalia’s lead by questioning not only their colleagues’ legal reasoning but also their intelligence, legal abilities and commitment to basic democratic principles shows no sign of abating. 

Like porn, zinger-laden Scalia dissents such as those in King and Obergefell are nasty and degrading. Moreover, Scalia’s zingers add nothing of substance to his opinions; they are there to entertain, not to explain or enlighten. We should not treat them as harmless, “fun to read” guilty pleasures but as a truly unfortunate development in the history of an institution that once served as a model for how to disagree about important issues in a civil manner — something from which not only the legal and political worlds but also society as a whole, would benefit. We would do ourselves a favor by giving Scalia’s clever, but pointless and ultimately harmful, zingers the attention they deserve: none.

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