Monday, April 28, 2008

The Justice has no robes

While I was in law school Associate Justice of the United States Supreme Court Antonin Scalia came to give a speech and answer questions from students. Now, based on my politics you'd probably imagine that I was irked at this speaking engagement or declined to attend out of protest. What you need to understand though is that for a law student Antonin Scalia brings levity and audacity to his opinions that you can't get anywhere else. As a law student your life involves hours and hours of reading various opinions from judges prominent and minor on every issue you can imagine, and many that you simply cannot. Most of the are dull and even when the fact patterns are amusing the legal ruling rarely is. Not so with Scalia though, he's rarely dull and while often times you disagree with him you develop a soft spot for anyone who can make you chuckle while you're reading a law school textbook.

So when it was announced that Scalia would be coming to speak I was thrilled. It would be a once in a lifetime event to get to listen to a speech from a sitting Justice from the Supreme Court in such an intimate setting and on top of that he seemed like a thoroughly entertaining guy.

I remember little of his speech that day but his behavior during the question and answer portion of the engagement has stayed with me. A student rose and politely asked a legitimate question along the lines of "How do you reconcile your personal belief in Strict Constructionism interpretation of the Constitution with objectively correct outcomes from decisions like Brown v. The Board of Education."

Scalia's response,
"Even a stopped clock is right twice a day. Next question."

That was it. He had nothing more to say. Scalia is a vocal and prominent strict constructionist. Whether or not he actually applies this principle broadly or is politically selective with it's application is a topic for another day. Scalia is an ardent strict constructionist and he professes his devotion to this ideology whenever he is given an opportunity. For him to completely dismiss a legitimate question about the legitimacy of such a view point in light of cases like Brown is despicable. It struck me as an amazingly snide and dismissive answer and it also made me question whether Scalia had ever grappled with this dichotomy himself. If he wasn't self-reflective enough to see this conflict and to have anything resembling an answer it struck me that he was not a serious man, not a serious lawyer and not a serious Justice.

While I had always opposed Scalia on ideological and philosophical grounds I had always imagined that he was a serious intellectual. Instead he had, in my mind, been exposed as a fraud. It was an Emperor has no clothes moment for me.

Given that I now see Scalia as the partisan tool that he has become. He's always been quite partisan but he has, in recent years, brushed off any pretense and embraced his role as a political animal willing to say anything to protect his political masters.

In the past two days we have two new examples of Scalia's absurdity. First, last night on "60 Minutes" we had Scalia drop this doozy:

STAHL: If someone’s in custody, as in Abu Ghraib, and they are brutalized, by a law enforcement person — if you listen to the expression “cruel and unusual punishment,” doesn’t that apply?

SCALIA: No. To the contrary. You think — Has anybody ever referred to torture as punishment? I don’t think so.

STAHL: Well I think if you’re in custody, and you have a policeman who’s taken you into custody–

SCALIA: And you say he’s punishing you? What’s he punishing you for? … When he’s hurting you in order to get information from you, you wouldn’t say he’s punishing you. What is he punishing you for?

The tactic here seems to be to say something so pattently ridiculous, so over the top, so audacious that no one can respond because their jaws are quite literally dragging on the floor. The 8th Amendment was clearly written to outlaw, in the least, government torture. To parse out the word "punishment" in such a way is absurd and Scalia is well aware of this. He is making up ludicrous arguments that would be laughed out of his Court if voiced by counsel. His comment, "Has anybody ever referred to torture as punishment? I don’t think so.", is insulting. Scalia is an educated and well read man, obviously he knows that torture is a form of punishment and has been labeled as such for centuries. As for what are they punishing you for - well that hardly matters. They can be punishing you for nothing more than the color of your skin or your nationality, they doesn't change the physical damage that is being done to you. This pretense of Scalia that there is some question as to whether or not torture is punishment is despicable.

Today the Court released it's decision on the Indiana voter ID law. In his concurrence Scalia had the audacity to write,
That sort of detailed judicial supervision of the election process would flout the Constitution’s express commitment of the task to the States. It is for state legislatures to weigh the costs and benefits of possible changes to their election codes, and their judgment must prevail unless it imposes a severe and unjustified overall burden upon the right to vote, or is intended to disadvantage a particular class. Judicial review of their handiwork must apply an objective, uniform standard that will enable them to determine, ex ante, whether the burden they impose is too severe.

Oh, so now he's concerned about judicial supervision usurping the States express constitutional duty to administer elections. Funny, he didn't feel the same way in 2000 when he voted with the majority to halt the recount in Florida and place George W. Bush in the White House.

The arrogance of this man is really beyond description. Is there a political operative alive who is as blatantly and flagrantly shameless as Justice Scalia?

1 comment:

Andrew Oh-Willeke said...

The punishment distinction made by Scalia is actually solidly a part of the law.

Protection from cruel and unusual activity in your apprehension is a question of reasonableness under the 4th Amendment, not cruel and unusual punishment under the 8th.

Protection from torture in interrogation arises under the 4th (reasonableness of search) and 6th Amendments (self-incrimination).

The cruel and unusual punishment clause informs both other amendments, but the legal analysis in interrogation cases is different than in punishment cases.