Killing Unarmed Animals

Glen Newey · Antonin Scalia

The US Supreme Court justice Antonin Scalia is dead, and not before time. The co-author of some of the dodgiest court opinions since Judge Taney's in Dred Scott v. Sandford, Scalia was duly hymned on Saturday night's debate in South Carolina by the self-avowed psychopaths – Ted Cruz has vowed to make the Middle East 'glow' with US bombs; Donald Trump’s problem with waterboarding is that the torture doesn't go far enough – slugging it out for the Republican presidential nomination. Scalia's judicial opinions reveal a mind whose fixation with the jurisprudential genetic fallacy known as 'originalism' betrayed his embrace of legal ancestor worship in a peculiarly pure form. It seems fittingly bizarre that he died on a quail hunting trip (his Supreme Court crony Clarence Thomas noted that Scalia 'loves killing unarmed animals').

'De mortuis nil nisi veritas' is a useful rule of thumb for commentary when the mighty die, and Scalia was certainly one of those in his own mind. He unflinchingly opposed marriage equality. He was still at it last year, dissenting from the court's decision to make same-sex marriage legal throughout the States on the ground that liberalising marriage law 'robs the people of... the freedom to govern themselves', posing a 'threat to American democracy' because 'today's decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court' – a role that he seemed content with when he was one of those in the majority.

Scalia repeatedly blocked federal action on climate change. There he found his jurisdiction ample enough to define the air. In a dissent in Massachusetts v. EPA in 2007, Scalia opposed the plaintiff's claim that CO2 is a pollutant causing global warming. Scalia found that air, as mentioned in the 1963 Clean Air Act, includes only 'air near the surface of the earth', not 'the upper reaches of the atmosphere', where 'the build-up of CO2 and other greenhouse gases... is alleged to be causing global climate change.'

Scalia helped deliver the 2000 presidential election to George W. Bush by guillotining the Florida recount. Here, again, Scalia seems not to have been cowed by thoughts of limits on the court's powers. More striking was his ad hoc invocation of the Fourteenth Amendment to argue that the recount should be stalled because Florida counties' different methods of counting ballots would violate the equal protection clause – something that applied only to the recount, and not to the state's elections generally. Dubya duly walked down Pennsylvania Avenue the following month.

In the 2008 case of DC v. Heller, Scalia applied originalism to offer a wide reading of assault-rifle owners' Second Amendment rights. He decided the amendment's prefatory clause about militias was irrelevant to the operative clause's meaning as understood by the Founders, which turned out to include protecting the personal use of firearms such as semi-automatic rifles whose invention lay well in the future. Boldly eschewing engagement with what the Founders had actually written, Scalia decided that they were talking about weapons in 'common use', not that this phrase figures in the amendment (semi-automatic rifles comprise around 2 per cent of privately owned firearms). Presumably the revered Founders had guns like muskets in mind, but where as often they don't say anything explicit, originalism comes into its own: they say whatever the medium who tongues their thoughts say they said.

Scalia's most pernicious opinion may prove to be Citizens United v. Federal Election Commission from 2010. That declared that the First Amendment extends to corporations. Under the Citizens United decision, bungs from SuperPacs, the consortia formed to buy elections for private corporate interests, are protected 'speech'. Last month Hank Greenberg, the former head of AIG, gave $10 million to the SuperPac supporting Jeb Bush. Greenberg crashed his firm with junk securities and then bleated that the $180 billion federal bailout was paltry (his AIG shares were 'virtually worthless', he complained in 2008, 'about 100 million dollars'). So, thanks to Scalia, public money paid out by George W. Bush's administration is now bankrolling his brother's faltering White House bid.

 Citizens United came to court when the lobbying group of that name appealed against a ban on airing Hillary: The Movie (an attack on Clinton) during the 2008 election campaign; its specific target was clause §203 of the 'McCain-Feingold' Act of 2002 which prohibited 'electioneering communications' in the sixty days before a general election. Earlier, in an indication of how it really valued free speech, Citizens United had tried to use §203 to gag the broadcast of a trailer for Michael Moore's documentary Fahrenheit 9/11 during the 2004 election cycle. When it later decided to push for the Supreme Court to rule §203 unconstitutional, Citizens United found Scalia compliant. His legal case – that 18th-century Englishmen didn't dislike corporations as much as some people think – was uninhibited by the Founders' failure to say anything at all about corporations in the Constitution.

At the start of Saturday's GOP brawl, soon after Scalia's death became public, the candidates stood in righteous silence for a moment (presumably a whole minute would have been beyond Trump). And rightly: a friend of guns, pollution and big money buying elections, Scalia did the job for which Reagan installed him.


  • 15 February 2016 at 3:47pm
    Helvetica says:
    This ignorant and hysterical screed, penned by an academic who obviously lacks even a basic understanding of constitutional law, is yet another example of the decline of an once-respectable publication.

    The distortions are legion, but one would need to point out at least the following. Justice Scalia's finding that the Florida recount violated the Equal Protection Clause was endorsed by seven justices out of nine, including half of the Supreme Court's left wing, yet Prof. Newey would have you believe that it is a decision which can only be explained by malice. His juvenile digression on muskets betrays a most profound misunderstanding of the tenets of originalism, which he finds easier to caricature than to engage with - presumably because he lacks the intellectual wherewithal to do so.

    As for his Citizens United rant, the author would do well to remember that the LRB is a corporation, like any newspaper, university, or left-wing charity he donates to. To say that corporations have no free speech rights is to open the doors for censorship - indeed, the Solicitor General of the United States, while arguing Citizens United in front of the Supreme Court, admitted that under the Government's reading of the First Amendment, the FEC would have the right to ban books. Yet this does not seem to faze Prof. Newey: either he is too dim to understand the implications of his own positions, or he has more sinister motives in mind.

    Instead of perpetrating ignorant libels upon a great jurist about whose work he knows nothing, Prof. Newey would do well to stick writing about those few subjects for which he has any qualification. For the sake of his students, I hope that he knows more about Hobbes than about the law.

    • 16 February 2016 at 9:47am
      Joe Morison says: @ Helvetica
      Yes, the vote that the recount violated the Equal Protection Act was 9-7; but the vote that there was no alternative method was 5-4, a conservative liberal split that gave the election to Bush.

      To quote Professor Robert Post of the Berkeley Law School "I do not know a single person who believes that if the parties were reversed, if Gore were challenging a recount ordered by a Republican Florida Supreme Court, [that Justices Rehnquist, Scalia and Thomas] would have reached for a startling and innovative principle of constitutional law to hand Gore the victory."
      If that scepticism is right then, to British eyes at least, their decision was a travesty; and Scalia was not a great jurist but a corrupt political placeman.

    • 16 February 2016 at 11:17am
      Alan Benfield says: @ Helvetica
      Well, Helvetica seems to think that one rant deserves another.

      On the subject of the Bush vs. Gore case, however, he does a little distorting himself: the original Supreme Court vote over-ruling the decision of the Florida Supreme Court and halting the recount was 5-4, based upon an opinion that candidate Bush could 'suffer irreparable harm' if some of the votes recounted were not 'legally cast votes'. The question of the Equal Protection clause was only raised later when the Court had to consider whether to allow the vote to be restarted and considered the question of whether the voters' rights under the 14th Amendment would be thereby violated and, if so, what was the remedy. The first question was answered in the affirmative by a 7-2 majority, but the remedy (continuing the stay) was only supported 5-4. The dissenters argued that voter rights could be protected by standardising the way in which the counts were held in the various districts.

      And I doubt that Glen Newey's remarks on Citizens United are any more of a rant than Justice Stevens' 90 page dissent (supported by Ginsburg, Breyer and Sotomayor and well worth a read) which concluded:

      "At bottom, the Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics."


      'Ignorant Libels'? No, just dissenting opinions (uttered in accordance with 1st Amendment principles), I would suggest.

    • 16 February 2016 at 2:03pm
      Alan Benfield says: @ Alan Benfield
      Typo: "Court had to consider whether to allow the COUNT to be restarted"

    • 16 February 2016 at 4:19pm
      Martha12345 says: @ Helvetica
      The "great jurist" expressed this sentiment:

      “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.” In re Davis, 130 S.Ct. 1 (2009) (2009) (Scalia, J dissenting).

    • 17 February 2016 at 3:11am
      Helvetica says: @ Alan Benfield
      A few points in reply:

      It is untrue that the Equal Protection Clause argument was only raised after the stay had been granted. One can only seek a stay if one has a petition for a writ of certiorari (leave to appeal, in British parlance) pending. Bush raised the Equal Protection issue in his petition for cert, and the Court granted both the stay and certiorari at the same time. Mr. Benfeld's reply seems to imply that the Equal Protection Clause issue would never have arisen had it not been for an improperly granted stay, which is not the case - the existence of a potential Equal Protection Clause violation was necessary for the Court to grant the stay in the first place, for otherwise there wouldn't have been a case to issue a stay for. Furthermore, it is common for a Petitioner's application for a stay to be turned down, even though he prevails in the end. There is no link between the granting of a stay - designed to prevent 'irreparable harm' - and the actual outcome of the case. So I am at a loss to understand the relevance of the 5-4 split for the granting of the stay, or how not mentioning this vote constitutes 'distortion' on my part.

      On Citizens United, one can disagree on the subject, and certainly four Supreme Court justices did so in that case, although they never overcome the central difficulty of their position - how can they square their position with protecting free speech, especially after the Solicitor General admitted during oral argument that the Government's position would give it sweeping censorship powers under the guise of limiting corporate election spending (virtually every publishing outlet in existence is a corporation of one sort or another, and it may be useful to remember that corporations are ultimately assemblages of natural persons seeking to further a common goal - to limit corporate free speech is to limit the free speech rights of those who comprise it).

      But Prof. Newey's screed above goes beyond such civil discourse: it is replete with half-truths and sinister imputations, coupled with an inability to understand that it is not because a judge reaches a decision which favours, for instance, polluters (Mass v. EPA), that he is pro-pollution, no more than a judge finding in favour of a terrorist is pro-terrorism, Then there are the cheap shots, from bashing his interest in hunting to insinuating he was some sort of plant sent in by Reagan to undermine the American Republic). Prof. Newey of course has the absolute right to critique Scalia's jurisprudence (and he even has the right to be very nasty, a right Scalia defended with vigour), but I do feel that I am not unjustified in criticizing the intellectually bankrupt way in which he did it.

    • 17 February 2016 at 10:54am
      Alan Benfield says: @ Helvetica
      You read into my comment implications which were never intended and are not there. I neither said nor implied that the stay was improper. The stay was decided by a majority decision based upon the following reasoning by Justice Scalia:

      "It suffices to say that the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success. The issue is not, as the dissent puts it, whether "counting every legally cast vote can constitute irreparable harm." One of the principal issues in the appeal we have accepted is precisely whether the votes that have been ordered to be counted are, under a reasonable interpretation of Florida law, "legally cast vote[s]." The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires"

      I do not see any mention of the Equal Protection Clause argument here, even though it is true that it was raised by Bush. And the Equal Protection Clause argument was only considered in detail by the court when it ruled on lifting the stay. At this point, correctly in my view, the court ruled 7-2 that the argument had merit, but the usual 5-4 split returned on the question of the remedy, with the conservative majority voting to maintain the stay, with the dissenters arguing that the count could be recommenced under certain conditions.

      I was merely pointing out that the maintenance of the stay was NOT supported by a 7-2 majority as your comment seemed to imply. The 5-4 majority on the remedy reflected the political make-up of the court, as is so often the case.

      As to your remarks on censorship of corporations, it should be unnecessary to point out that the 1st Amendment specifically mentions 'freedom of the press' and thus, considered in the light of the originalism practiced by Justice Scalia himself, no legislation could be enacted to censor the press, as it would immediately struck down (and probably, for once, by a unanimous rather than a divided court). The argument that all corporations are 'censored' by not allowing rich corporations to pour unlimited cash into their favoured candidate's pocket is largely humbug and the decision is clearly ideological: even for the originalist there is no implication that the drafters of the 1st Amendment considered immaterial entities such as corporations as having the same freedom of speech rights as individuals, with the specific exception of the press, obviously. And 'the press' can undoubtedly be said to cover all forms of publishing, including those, like television and the Internet, which were not known when the amendment was drafted. Furthermore, the freedom of the press is already not absolute, the 1st Amendment notwithstanding.

      On this subject I think my previous citation from Justice Stevens says all that needs to be said.

    • 17 February 2016 at 6:51pm
      Timothy Rogers says: @ Helvetica
      Helvetica (styling himself I suppose as a sort of William Tell, rather than a typeface) caves into a penchant for pomposity with "assemblages of natural persons seeking to further a common goal." By this token a criminal conspiracy (e.g., a Mafia 'family' or a well-trained bank robbery gang) might argue that laws punishing their activity violate their right to pursue their goals. His logic does not match his rhetoric either. Why can't his "natural person" who has had a check on his ability to have his corporation engage in political advertising (not really debate) go out as an individual and ventilate his point of view? The notion that a corporation is a "collective individual" is preposterous to begin with, but even if corporations are conceived of as collections of individuals, not a single one of those individuals loses his or her rights of expression when corporate "speech" is regulated. The whole argument is weak.

      Let's be nasty. When the evening news-buzz about Scalia's death hit the air-waves, my first reaction was a smile, a sigh of relief, and the thought, "Not a moment too soon". His naked ambition led to a career of extraordinary greasy-pole climbing (a glaring example of this being his presence at the shooting party of VP Cheney and a bunch of rich guys - my unkind thought at that time was, "Well, Cheney certainly shot the wrong guy.") A 'giant of jurisprudence"? Most doubtful, especially with his version of switch-on, switch-off originalism, depending on the plaintiff and his cause.

    • 18 February 2016 at 8:24pm
      Helvetica says: @ Alan Benfield
      Firstly, you accused me of distortion, then proceeded to cite some completely irrelevant parts of the procedural history of the case, in a way that suggests that I misrepresented the factual background of the case. I don't think I have read more into your remarks than what was already there.

      As to the slightly more important issue of freedom of speech, consider this. Citizens United wanted to air a documentary about Mrs. Clinton (surely that is publishing under your definition), yet the dissenters thought the FEC was right in banning its distribution. Unlike you, Justices Stevens et al. didn't think that the freedom of the press guarantee of the First Amendment prevented a governmental agency from banning the distribution of a documentary. Now let that sink in for a moment. Is modern liberalism in such a sad state that censorship is not only permissible according to its contemporary tenets, but desirable? Just remember this: if corporate speech is not protected, the next Republican administration will undoubtedly go after left-pressure groups (for they are corporations, after all), and progressive will only have themselves to blame. The natural tendency to suppress speech one doesn't like exists among both the Left and the Right, Mr. Benfield, something that we would all do well to remember.

    • 18 February 2016 at 8:55pm
      Helvetica says: @ Timothy Rogers
      If restricting corporate speech is okie-dokie because the persons who constitute the corporation can go air their opinions individually, presumably you would be okay with a Republican Congress banning, say, the ACLU from publishing anything on the grounds that its staff can go out there and exercise their 1st Amendment rights individually? And please don't invoke the Free Press clause of the 1st Amendment, because you don't believe corporation have 1st Amendment rights, remember?

      As to your personal nastiness, suffice to say that even liberal jurists recognize Scalia as one of the most important legal thinkers of the century: today left-wing law professors and lawyers routinely make originalist arguments, and the use of legislative history in statutory interpretation is all but dead, all thanks to Scalia. I doubt you have accomplished much in your spiteful life except to slander the dead. To be a nasty person is a character failing; to take pride in one's nastiness is positively psychopathic. If you passed away tomorrow neither I or anybody else would be cheering; in fact, nobody would care.

      Finally, since you are curious, the typeface and not William Tell, although Rossini's opera has some merit to it. If using big words is pompous, then I assume it. But better to be pompous than to be like you.

    • 19 February 2016 at 9:45pm
      Timothy Rogers says: @ Helvetica
      Well,well, typeface, how rapidly the high-minded enthusiast of 'jurisprudential excellence" sinks into low, personal invective when his icon is tarnished. Never had much faith in icons myself, and there's nary a spiteful bone in my body (my dislike of Scalia and everything he stood for far exceeds spite - it's based on principle! or maybe just a natural dislike for his smug certainty about everything under the sun). I've accomplished a great deal in my long and turbulent life (not quite as long as the Big Man's fourscore less one, but I'm fast approaching that age, so I suppose I might be an old nasty person). Slander implies falsehood, so show me mine (oh, never mind, you';ll cook up some contorted case on that point).

      The idea of a corporation as an entity with individual rights was cooked up as a jurist's interpretation late in the 19th century, during that other heyday when Big Bizness as the be-all and end-all of our existence dominated American political life, and those jursists did not have outfits like the ACLU in mind - learn a little history, or perhaps you don't believe that history is relevant to the construction and interpretation of the law (the 'originalist' school of constitutional interpretation has the tricky beauty of being able to sanctify history and ignore at one and the same time).

      And just to show you I'm not really spiteful, if you predecease me (not likely, but anything's possible) I'll miss you when you're gone.

    • 22 February 2016 at 10:53am
      Alan Benfield says: @ Helvetica
      Yada yada yada.

      "Citizens United wanted to air a documentary about Mrs. Clinton (surely that is publishing under your definition), yet the dissenters thought the FEC was right in banning its distribution."

      No, actually, the issue was that the FEC (rightly) applied the provisions of the 2002 Bipartisan Campaign Reform Act, which prohibited any broadcast, cable, or satellite communication that mentioned a candidate within 60 days of a general election or 30 days of a primary, and prohibited such expenditures by corporations and unions. The minority wished to uphold this provision. The majority decision struck down the legislation.

      That's what I mean by distortion. By the way, the said act is also called the 'McCain-Feingold Act'. Guess which McCain that was in the vanguard of the jackbooted government censors. Clearly Senator McCain is a Manchurian Candidate who was brainwashed by his captors in Vietnam.

      What you have done, as the court also did, is to take a perfectly sensible bipartisan provision restricting negative electioneering by those with the deepest pockets (or anyone else who can whip up the cash, of course) in the run-up to an election or primary and turn it into the beginnings of blanket censorship and a police state.

      If that is not a distortion, I don't know what is. The Act in question was not, as you seem to suggest, left-wingers going after right-wingers: it was a bipartisan attempt to eliminate negative campaigning on either side for a limited period before elections and primaries. If you consider that right-wingers were unduly affected, perhaps that is because they had more cash to spend on negative advertising than the left.

      The outcome of the majority decision, however, has opened the floodgates to the investment of huge amounts of money by corporations - and guess which side of the argument most of that money will benefit.

    • 23 February 2016 at 8:42pm
      Helvetica says: @ Alan Benfield
      Your second paragraph simply repeated what I wrote in more technical terms; contrary to what you seem to think, it's not distortion to write out the issue in lay terms. The rest of your reply is a value judgment on the merits of campaign finance reform that has nothing to do with the underlying constitutional question. I don't know what was your intent in writing it, except perhaps to get the last word.

    • 23 February 2016 at 8:46pm
      Helvetica says: @ Timothy Rogers
      Snark, more snark, and yet more snark. At this point there is nothing more to be gained by engaging with you, especially considering that you don't seem to know the definition of a corporation.

    • 24 February 2016 at 11:11am
      Alan Benfield says: @ Helvetica
      "I don’t know what was your intent in writing it, except perhaps to get the last word."

      Hahahahahahahaha! Priceless...

    • 24 February 2016 at 2:34pm
      Alan Benfield says: @ Helvetica
      Seriously, though: what you did was not to "write out the issue in lay terms", it was to make it appear as if the FEC was applying some arbitrary standard of its own, when it was simply following what was (then) a bipartisan law (a rare thing these days) proposed by a Republican and a Democrat and passed by Congress.

      The 'underlying constitutional question' was thus not free speech of corporations: at any other time except that stipulated by the Act, corporations could spend their money on saying anything they liked. McCain-Feingold merely restricted this for a limited term before elections for reasons of fairness to the candidates (i.e. by ensuring the rich candidate could not overpower the less rich).

      If you are now going to have the last word, perhaps you could make sure there is an argument in what you write, rather than just assertions.

    • 28 February 2016 at 10:34pm
      Timothy Rogers says: @ Helvetica
      Wouldn't know "snark" if I ran into it, but, being desirous of continuing education even during my twilight years, I thank you for the observation that Rossini's "William Tell" has "some merit" to it. Following your icon's close attention to wording (convenient logomania in his case, to be turned on and off like the kitchen tap, depending on whether specific wording agreed with his sought-for results), would that "some" apply to its musical qualities or its heroic tale of Swiss freedom fighters? Just asking, but as a man who has been listening to classical music (including opera) for fifty years or more, I find your remark, well . . . risible.

      As to the "jurisprudential excellence " of Scalia's opinions (and your resistance to the idea that actual history can or should affect such opinions), I recommend you to:

      And this is written by a commentator who did not dwell upon Scalia's personality, including its ugly trait of often kissing up while defecating down - such was his view of "eternal social verities." Good riddance, and let's hope for a reasonable replacement (I think anyone, liberal or conservative in his or her innermost heart, will be better).

    • 29 February 2016 at 7:58am
      Alan Benfield says: @ Timothy Rogers
      Surely, Timothy, it is a definition of the intellectual that he can listen to the overture to "Wilhelm Tell" without thinking of The Lone Ranger?

      Thanks for the link, by the way. From the photograph it would seem that Danny DeVito is a shoo-in for the biopic...

    • 29 February 2016 at 3:24pm
      Timothy Rogers says: @ Alan Benfield
      That's probably true, but I hope it doesn't exclude everyone in my own age-cohort - those American kids born during WWII, who, when they were 5-10 years old at the time television sets began to spread through apartment buildings and suburban homes, encountered the stirring "Lone Ranger Overture", as it was called on juke-boxes of that era. Along similar lines I wonder if teenagers who saw and liked the Beatles' movie "Help!" think of Rossini's "Barber of Seville" overture as the "Help! curtain-closer" (if I remember correctly it was the music played during the credits shown at the end of the movie). My jibe at helvetica was aimed at his need to make a feeble - and irrelevant- bit of "cultural commentary" on the merits of Rossini's Opera.

      On Scalia, there was a much blunter and more brutal assessment of his character and the negative effects of many of his decisions in the leading commentary piece that opened the "New Yorker"'s issue that came out just after he died (it might have been dated Feb. 29 - I read it and already recycled it, so I could be off on the date).

    • 5 March 2016 at 9:50pm
      Timothy Rogers says: @ Martha12345
      Just one remark on the actual manner of expression used by Scalia in this opinion. It tells us a lot, I think. The ironic (or snarky) quotes placed around "actually" and "actual innocence" express his disbelief that such a thing could ever be true, though the DNA tests applied to old evidence point in the opposite direction. Another hypothetical jurist who was skeptical about the often slipshod habits of police and prosecutors might have put the quotes around "a full and fair trial".

      Another piece of "reasoning" that stands out is that because the Court has not considered a matter in a particular light before, it should not do so at present. This is actually a "historical view", the type of thing that Scalia allegedly shunned (except when it was useful to him) and is at variance with arguments resting solely on the "intentions of the framers" (which, of course, were not uniform and need a vast amount of historical research and interpretation to be made even halfway plain). Unlike the Pontificator, this dog won't hunt.

  • 15 February 2016 at 7:40pm
    David Gordon says:
    Thank you for writing something that articulates what I have felt about this man - deeply misguided and probably deeply evil. Just suppose he had not been able to push Bush in Bush v Gore, and Gore had been elected? No Guantanamo, no second Gulf war, no "war on terror", probably no Isis ... that would probably have saved hundreds of thousands of lives. So I believe Scalia has much much blood on his hands - and not just the quail he was slaughtering.

    The spectacle of Republican candidates trying to block Obama doing what the Constitution says he must do is worse than nauseating.

    • 16 February 2016 at 9:29am
      Michael Schuller says: @ David Gordon
      It's pretty melodramatic to describe Scalia as "deeply evil", and wide of the mark in general to lay the blame of America's 21st century foreign policy at his feet.

      Yes, he was quite wrong and quite polarizing in his legal opinions, and the effects of those opinions will be felt for a long time to come. But it really perpetuates the extremism of contemporary American politics to resort to the language of a medieval morality play when trying to discuss current events. Not to mention how reductive it is -- the world is just not as simple as "good" and "evil", and it is naive to discuss it in those terms.

      As to the "blood on his hands" bit, it rather shifts the blame of American policy in the 21st century away from Cheney and Bush Jr (not to mention Bush Sr and Clinton before that, both of whose policies laid the groundwork of everything that Bush Jr did while in office; and Obama, who has doubled-down on the drone war and expanded it massively). SCOTUS may have put Bush in the White House (and quite wrongly so), but it was not just Scalia: of the three decisions that led to a Bush presidency, the first (Bush v Palm County Canvassing Board) was unanimous, and the two issues at stake in Bush v Gore were decided 7-2 and 5-4, respectively. Awful judge Scalia may have been, but he did not exist in a political, legal, or cultural vacuum.

      Susan Sontag once wrote that "someone who continues to feel disillusioned (even incredulous) when confronted with evidence of what humans are capable of inflicting in the way of gruesome, hands-on cruelties upon other humans, has not reached moral or psychological adulthood." She was speaking about outright violence at the time, but I think there's an important lesson in critical distance there, which may help you with your symptoms of nausea.

    • 16 February 2016 at 8:33pm
      Walter10065 says: @ Michael Schuller
      sorry you object at length to calling a man "evil" tho you admit that he was very bad and in league with other very bad men? well that seems rather silly. it's clear the good manners that obtain in the company of these monsters are designed as alibis for ourselves, for if they were "evil" why did we not take drastic action to stop them? and worse, Scalia was a judge, not some random bureaucrat but a god hurling lightning bolts at ordinary mortals. the odd quality of US politics is the scarcity of truth-speaking like we have here, not its overabundance.

    • 17 February 2016 at 12:41pm
      David Gordon says: @ Michael Schuller
      Thank you Michael, that is a fair comment. I do indeed recognise that American foreign policy is a kind of team sport with people like Cheney, two Bushes and so on, and Scalia was not actually on their field of play - but he, with four other judges, by the judgement in Bush v Gore allowed it this team game to develop as Bush Jr chose, and not as a possible President Gore might have done.

  • 16 February 2016 at 4:37am
    lordarsenal says:
    Living in a country hogtied to an 18th century document, I am frequently amused by the legal contortions provided by our Supreme court. Justice Scalia was a true master of the absurd concept of Originalism. The US constitution, embalmed and revered as a god inspired document, keeps the United States bound to ridiculous notions, such as the right to bear arms. Hapless citizens must look to the nine high priests of the court to divine the wisdom, or lack of, in our opaque, beloved constitution. Scalia, the slobbering, and angriest of all the high priests, provided American citizens with mirth, contempt and generous portions of corporate benevolence, all divined from our most glorious touchstone.

  • 16 February 2016 at 5:46pm
    ikallicrates says:
    Newey writes "The US Supreme Court justice Antonin Scalia is dead, and not before time". The right time for this odious man to die would have been the day of his elevation to the bench, preferably struck down by the hand of that god whose law he claimed to put above the Constitution he had sworn to uphold.

  • 16 February 2016 at 6:55pm
    sebagustavo says:
    The most famous sicilian proverb says: Toissue commands is better than fuck.
    Be they judges or mafiosi, or both in the same time,Sicilians like the power.
    Therefore they are not the servant of law. In the contrary, consider the law a mere instrument of power: their power, or that of their their family, or circle of friends. Scalia, whose culture was that of an old southern italian, was the full expression of this kind of use of law,

  • 16 February 2016 at 9:05pm
    thellen levy says:
    Wish I could claim it as my own, but here's a comment from the Economist's online obit:

    I can't help but be reminded of what Bette Davis said: You should never say bad things about the dead - only good. Joan Crawford is dead. Good.

  • 16 February 2016 at 11:43pm
    gstrawson says:
    useful (and depressing) further material on guns and the extraordinary dishonesty of Scalia's 'originalism': Reva Siegel

  • 17 February 2016 at 12:11am
    In re: SCOTUS's opinion in DC v. Heller

    "The Supreme Court held:

    "(1) The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.

    "(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.
    (b) The prefatory clause comports with the Court’s interpretation of the operative clause. The 'militia' comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28."

    The Second Amendment to the U.S. Constitution:

    "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

    Justice Scalia, as I understand it, considered himself something of an expert in the English language and the accurate use thereof, "accurate use" necessarily based on an accurate understanding of grammar and syntax.

    If that is the case, Justice Scalia, with regard to the first part of the 2nd Amendment, was ignorant, willfully or not, of English syntax. That part, "A well regulated Militia, being necessary to the security of a free State" is a nominative absolute. Basil Gildersleeve, in the 3rd edition of his "Latin Grammar," says, "The Ablative Absolute may be translated by the English so-called Nominative...Absolute, which is a close equivalent..."(3rd edition, 1894, §410). Gildersleeve says in §409 "The... Absolute Absolute is an Ablative combined with a participle and serves to modify the verbal predicate of a sentence. In his Note to §409 he says, This Ablative, which may be called the Ablative of Circumstance...."

    The ablative absolute, like its Greek counterpart, the genitive absolute, is one of the uses in Latin of the circumstantial participle, which states the circumstance(s) under which the main clause in a sentence is true or valid.

    I imagine the writers of the U.S. Constitution knew Latin fairly well. In their use of the nominative absolute in the prefatory clause of the 2nd Amendment, I should think the Latin ablative absolute, embedded in their minds, governed the wording of the prefatory clause, i.e., its being rendered as a nominative absolute

    It is perfectly legitimate to translate a Latin ablative absolute as a dependent clause beginning "Inasmuch as..." or "Since..." The same holds for an English nominative absolute.

    My point in making this excursion into Latin and English syntax, specifically, the use of the circumstantial participle ("being," in this case) in a nominative absolute construction, is to assert that the prefatory clause of the 2nd amendment states the circumstance under which the main clause is valid. That is, it validates the main clause. Without that prefatory clause, the main clause is invalid, it is a headless trunk.

    If it is correct to say that Justice Scalia was the member of the Supreme Court who, in this decision, in effect, dismissed the force of the prefatory clause, then he was flat out wrong.

    What makes this worse is that Justice Scalia was something of a "New Critic" in his reading of the U.S. Constitution. The "biography," as it were, of the 2nd Amendment would be meaningless to a New Critical reading of it. It is the words on the page, and only the words on the page, of the 2nd Amendment, to which one should attend and on which one depends for rendering a judgment.

    To repeat, the prefatory clause of the 2nd Amendment validates the main clause of the Amendment. The "people" have the right "to keep and bear arms" only for the use of these arms in a "well regulated militia."

    That, to me, is the plain sense of 2nd Amendment.

    The closest thing we have in the U.S. to a well regulated militia is the National Guard in each of the states in the U.S.

    There are other problems with Justice Scalia's "originalist" reading of the Constitution having to do with linguistics, specifically, synchronic linguistics ("l'état de langue"), the language as spoken and written by the late 18th century "collectivité." (I advert here to the linguistic ideas of Ferdinand de Saussure [1857-1913], who is called "the father of modern linguistics" (by, e.g., Professor Roy Harris, professor emeritus of Linguistics at Oxford University).

  • 17 February 2016 at 12:34am
    Krab Zincfinger says:
    While I don't agree with all of Scalia's decisions, Glenn Newey's rant is typical of the dogmatism, self-righteousness and narrow-mindedness of the contemporary Left. He offers no evidence understanding Scalia's primary concern which was the danger of unelected judges using the courts to make policy according to their prejudices or current fashion. This is something that should be of concern to both liberals and conservatives. Newey simply cannot conceive that a ruling he doesn't like is not in the service of some political or corporate interest. He also misrepresents Scalia's position: In DC vs. Heller he allowed the ownership of a loaded handgun; he did not rule out further restrictions on assault weapons or other types of weapons, writing: "Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”. In interviews Scalia indicated that future court rulings would need to set these limits. I also agree with Alan Benfield that Judge Stevens dissent in the Citizens United ruling is well worth reading in its entirety- in part because it meets Scalia on his own ground- the original conception of the Framers. Finally, it's worth noting Scalia's friendly relationships with liberal judges Kagan and Ginsburg - who often disagreed with him on jurisprudence- he in fact recommended Kagan to the Obama administration despite their disagreements on the law. Contrast this with the ideological self-righteous high dudgeon of Newey's tiresome and predictable opinions.

  • 17 February 2016 at 12:47am
    zeleny says:
    The passing of Scalia is exposing hateful lefty nitwits. Who will die next to provide a like litmus test for righties?

    • 17 February 2016 at 12:45pm
      David Gordon says: @ zeleny
      Two points to make.

      First, I do not think we are rejoicing at Scalia's death. Rejoicing at anyone's death is no more than a vulgar Blunkettism.

      Second, if by questioning Scalia's role as a judge and some of his judgements I am a hateful lefty nitwit then I am happy to be a hateful lefty nitwit.

    • 17 February 2016 at 7:02pm
      Timothy Rogers says: @ zeleny
      Well, zeleny, if President Obama were to suddenly bite the dust, the joy on the right would shake the Republic (just listen to the terms in which some of the current Republican contenders and their press allies limn him - guttersnipes all). On the other hand, as a hateful lefty nitwit (Gee, maybe just a hateful moderate nitwit who occasionally votes for a local Republican), my heart would be gladdened by the sudden expiration of several of those just-mentioned contenders. Whoever Blunket(t) is or was, I'm happy to share his ignominy when an 'answered prayer' occurs (just a figure of speech there, I don't actually pray, though I do talk to myself in other ways).

    • 17 February 2016 at 9:11pm
      David Gordon says: @ Timothy Rogers
      As one hateful lefty nitwit to another, Timothy, if helvetica is either a typeface or William Tell, then zelený is something Czech and green, although his sentiments are hardly "green"

      Apologies for the UK-centric Blunkett reference. Blunkett was the Home Secretary who, when the mass murderer Shipman committed suicide, said he would celebrate with a drink. We all may feel some schadenfreude when a bad person dies - but still we should not vulgarly celebrate death.

  • 24 February 2016 at 3:37am
    Graucho says:
    The laws of logic dictate that you base conclusions on the facts. In the law, however, the object is to do it the other way around. This Justice appears to be no better than he should have been, may he rest in peace.

    • 2 March 2016 at 2:52pm
      Timothy Rogers says: @ Graucho
      Graucho - I'm not quite sure what you're getting at here, but I think you've made a few elementary mistakes. The laws of logic have little to do with facts and their relationship to either reality or arguments - rather they're a set of "axioms" and reasoning rules created in order to avoid self-contradictions, paradoxes, and truisms. And, did you mean that Scalia "based facts on conclusions", or that he came to his conclusions by interpreting facts so that his reasoning would be guided by the conclusion he wished to reach in the first place?

  • 29 February 2016 at 12:03am
    dsueii says:
    Reading these comments was fun. I detect a slightly liberal slant to most of them. Too bad you hilarious dudes didn't approve of Scalia (except "typeface"). I've always been very concerned what Brits think of our government. My pick for the next POTUS who, like Robin Hood, "really likes poor people," is undoubtedly not acceptable to you either. I'll bet he's concerned about what you think too. You think?

  • 29 February 2016 at 12:53am
    Timothy Rogers says:
    As March approaches it's time to move on, and we will undoubtedly have a few new celebrity deaths in the coming days, which leads me to my final ruminations - this time on the delicate subject of "trashing the recently deceased" (I doubt that anyone cares if we make derogatory remarks about Caesar or Louis XIV or that Pope who found himself infallible, etc.). It seems odd that people should expect one to hold one's vituperative tongue in check in the days following the death of someone whose views one detests (I assume that the deceased's surviving family members have neither time nor inclination to follow the blogs, so we won't be hurting their feelings; even if we do it's hardly tragic). In this particular case, it is difficult to understand the tender feelings of Scalia's admirers when he is assailed posthumously. IF they are people who share his beliefs, including religious beliefs, they should be overjoyed that he has gone to meet his maker and collect his just reward (no doubt a Paradisal sky-box to be shared with the Koch brothers and other illustrious figures of our day). There is, however, room for originalist disagreement on this fine theological point - after all, the Lord Himself (or, ahem, his son)said that it was easier for a camel to pass through the eye of a needle than it was for a a rich man to enter the kingdom of heaven. But he said nothing about the cheerleaders of the wealthy and privileged, so there may be an aperture into the pearly gates through which such shifty souls can squeeze. But I leave this deliberation to those skilled in casuistry,who enjoy pondering such matters that are weighty and insubstantial at the same time. Yikes!

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