Tag: Antonin Scalia

Scalia Dead

Antonin Scalia has apparently died. He was one of the most formidable intellects in the history of the Court, returning the interpretation of law to the Constitution and refusing to rewrite the Constitution to conform the political desires of the moment. I disagreed with him sometimes but he was one of the few justices who would occasionally defend civil liberties, most notably in the flag-burning decision. But his conservatism made him despised in liberal circles.

What impressed me about Scalia was his humor, his intellectual vigor and his unwillingness to make the personal political. His best friend on the Court was Ruth Bader-Ginsberg, his ideological opposite.

The balance of the Court is about to shift dramatically. Stay tuned.

Update: I’m tweeting a lot about this. Replacing Scalia is going to be a highly contentious issue. It’s Obama’s duty to nominate someone. It is the Senate’s duty to vet. There’s no reason why the Senate can’t reject someone who is unqualified or too ideological (see Bork, Robert).

I’ll hedge that last one. The Second Amendment is a critical civil liberty. And Scalia was a critical voice upholding it.

A Scalia Smear

The Supreme Court, earlier this week, heard arguments in a case of whether affirmative action should be allowed in Texas Law schools. You may have heard about this because the entire Left Wing exploded into outrage over Scalia’s alleged racism:

Demonstrating once again that his reputation for cheap demagoguery has been well-earned, Senator Harry Reid this morning took a wild shot at Justice Antonin Scalia. “It is deeply disturbing,” Reid suggested, “to hear a Supreme Court justice endorse racist ideas from the bench of the nation’s highest court.”

What did Scalia say, precisely?

“There are those who contend that it does not benefit African Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less­ advanced school, a slower-track school where they do well,” he said. “One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas.”

That’s it. Scalia didn’t even advance the theory that admitting blacks to schools they are underqualified for only makes them struggle. He threw it out there as a discussion point to hear what the lawyers thought about it. You wouldn’t know this from the screaming headlines (the New York Daily News, which has completed its descent into pure Left Wing hysteria, had a screaming headline branding Scalia a racist).

Now there are reason to think that this theory is wrong. Recent studies have shown that black students admitted on affirmative action catch up quickly and have graduation rates similar to white students. However, others have argued that it keeps black students out of the more difficult subjects like science, where catching up is particularly difficult. This theory — not Scalia’s, but a common theory — is not far out of the mainstream at all. It’s been mentioned in prior SCOTUS decisions on this matter.

But this is a bit more dangerous than calling Scalia a racist. Alex Griswold

First of all, it’s worth noting that oral arguments are not an avenue for justices to share their views on the case at hand; it’s an opportunity to suss out any holes in the arguments of both parties. To that end, justices often advance arguments and theories they do not necessarily hold. Take for example Chief Justice John Roberts‘ extremely harsh questioning of government lawyers in NFIB v. Burwell, even though he eventually voted to uphold the individual mandate anyways.

Arguing before the Supreme Court is a notoriously nerve-wracking experience, since justices try to find arguments and lines of attack attorneys would never consider. In this case, the transcript make it clear that Scalia was asking a question about a theory put forward by others, not himself:

Scalia, in particular, has a tendency to play devil’s advocate. During the flag burning case, he asked if burning the flag could be banned by being considered fighting words. But he eventually decided with the majority to strike down the flag burning laws.

Charles Cooke, linked above, brings this home:

If we are to have a functioning justice system, we cannot hold lawyers personally responsible for the unpleasant parts of their designated roles. When a defense attorney successfully demonstrates that the prosecution’s case is too weak for a conviction, he is not betraying a preference for murder or rape or grievous bodily harm, he is ensuring that his client gets a fair shake. When a corporate counselor illustrates that a given statute is so badly written that it cannot be used to secure guilt, he is not endorsing whatever misconduct yielded the case in the first instance but upholding the rule of law. And when a Supreme Court justice pushes those before him to respond to the countervailing briefs — or offers whatever devil’s advocacy occurs to him on the spot — he is not pitching his own ideas but mediating a dispute. The day that we fail to understand this will be the day we give in to barbarism.

All too often these days we conflate principles with outcomes. Thus, to defend the free-speech rights of neo-Nazis is to be accused of endorsing their words. Thus, to protect the right to keep and bear arms is to be charged with complicity in its abuse. Thus, to oppose further government surveillance is to be lumped in with terrorists and hackers. During the 2013 Texas gubernatorial race, the Republican nominee offered the uncontroversial observation that, as attorney general, he was obliged to defend laws he personally opposed, and that this would have been the case during the 1960s, too. For this accurate appraisal of his professional responsibilities, his opponent labeled him a foe of interracial marriage. If this approach to government were to become quotidian, we would soon find ourselves living in a country ruled by men and not by law.

Raising points of law and discussion is Justice Scalia’s job. And … apparently … taking cheap shots at him is now the Democrat’s job.

A Cheeky Decision from SCOTUS


The U.S. Supreme Court ruled today that police don’t need a search warrant before they open your mouth and take a swab of DNA.

The Supreme Court ruled in a 5-4 decision that DNA swabs are a “legitimate police booking procedure” that is allowed under the Constitution just like fingerprinting and mugshots.
The court’s swing voter Justice Anthony Kennedy wrote the majority opinion, which said DNA identification has become an important tool to help police identify suspects.

Supposed fascist Scalia actually sided with the liberal court on this one, pointing out — correctly in my view — that the state’s argument that they are using DNA primarily to identify people (and only investigating past crimes by coincidence) is absurd.

The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.

It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous. And the Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work

Of course, any DNA taken is going to be used to solve crimes. That’s precisely what they did in the case of Alonzo King, who was convicted of a six-year-past rape because of a DNA match drawn when he was brought in for an unrelated crime. While I’m a bit mixed on whether DNA swabs should be allowed, the Court’s reasoning, which compares fingerprinting to jabbing a swab in someone’s mouth and running it against a crime database, seems as odd to me as it does to Scalia.

(You should also read this article about the statistical problems in blind DNA database searches. If your are matching the DNA of someone you already suspect of a crime, those one in a million stats mean something. However, the DNA databases are so massive that, for a blind search, the chance of finding a bogus match for someone’s DNA on any crime is much much higher. If you have 300,000 crimes in your database, the chance of a one in a million match to something is actually one in three.)

I’ll post more commentary as it comes in.

SCOTUS in the News

Going to be an interesting week for the Court. They are having hearings now on both DOMA and California’s same sex marriage ban. We won’t know their decision for a while. My guess is that they will strike down parts of DOMA and possibly California’s amendment but on very narrow grounds that fall short of declaring a “right” to marriage. That would be my preferred outcome at this stage. I would prefer that this issue not be resolved by the Court. And given the dramatic shifts in opinion — Mark Warner and Claire McCaskill just changed their positions and a new poll shows majority support in Ohio — I suspect the gay marriage proponents will get what they want through the democratic process very soon. By the time the 2020’s roll around, I expect gay marriage to be legal in a majority of states no matter what the Supreme Court says.

The more interesting ruling came today in Florida v. Jardines. This is case where a “drug-sniffing dog” was brought onto someone’s porch without a warrant and his subsequent alert used as probable cause. There wasn’t much hope for this since the Court decided earlier this year, unanimously, that drug-sniffing dogs constitute an infallible drug detection mechanism and therefore their use does not constitute a search. This, despite overwhelming evidence that drug-sniffing dogs are anything but infallible and often simply reinforce the predisposition of their handlers.

But the Court ruled in favor of Jardines on privacy and trespass grounds. This will prevent blind searches of people’s homes using the dogs so it’s at least something. Interesting, supposed fascists Thomas and Scalia decided with the majority while supposed liberals Kennedy and Breyer were with the minority.

The Court has been chipping away at our Fourth Amendment rights for some time. It’s nice to see the brakes applied or once.

Get a Warrant


The Supreme Court on Monday put the brakes on the government’s use of high-tech monitoring devices to track motorists, ruling unanimously that police and the FBI violated the 4th Amendment by attaching a GPS device to a Jeep owned by a drug suspect.

The justices all agreed that the government needs a search warrant from a judge before it seeks to track a suspect by secretly installing a device on his car.

There’s a little bit of division on the ruling, with Scalia taking the narrower view that it was the placing of the device that violated the Fourth Amendment, while Alito thinks the tracking of the car in general was a violation.

Here’s why these attempts to bypass warrants bother me: warrants are generally easy to get. This is especially true of the FISA Court, which almost never rejects a petition, but even lower courts are fairly generous about this. To track a drug dealer, a simple undercover buy could establish a reason for a warrant. So why the big push to avoid them?

In any case, I’m glad to see the Court bounce this. Maybe it’s just me, but they seem to be having a pretty good session this year. Wouldn’t be interesting if Bush’s biggest achievement was the Roberts Court?

Shoot ‘Em Up

SCOTUS has been on a roll lately:

The Supreme Court on Monday refused to let California regulate the sale or rental of violent video games to children, saying governments do not have the power to “restrict the ideas to which children may be exposed” despite complaints about graphic violence.

On a 7-2 vote, the high court upheld a federal appeals court decision to throw out the state’s ban on the sale or rental of violent video games to minors. The 9th U.S. Circuit Court of Appeals in Sacramento had ruled that the law violated minors’ rights under the First Amendment, and the high court agreed.

“No doubt a state possesses legitimate power to protect children from harm,” said Justice Antonin Scalia, who wrote the majority opinion. “But that does not include a free-floating power to restrict the ideas to which children may be exposed.”

As Ed Morrissey points out, this may have implications far beyond video games. There is a huge segment of existing and proposed federal law restricting advertisements to children. If the state can not keep video games away from kids, how is it going to argue it can ban Tony the Tiger? (Yes, you read that right, that food grabbers want to ban Tony the fucking Tiger.)

I’m actually somewhat surprised at this since the Court has traditionally found that minors don’t have full Constitutional rights — hence their support for parental notification laws or locker searches in schools. They may have finally found a bridge they aren’t willing to cross.

As for violent video games … do I really need to say it? The evidence that violent video games affect kids, as Scalia noted, is suspect at best (Penn and Teller did a great episode on this). I personally would keep them away from kids until they’re a little older. But there I go again, taking my parenting responsibilities seriously rather than just foisting them off on the government.

Update: They really are on a roll. They also struck down Arizona’s campaign matching law — the one that says that if a political candidate is privately funded, the state will give his opponent matching funds. That’s shouldn’t have been a 5-4, really.