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On the eve of the First Monday in October, New York magazine released an in-depth Q&A with U.S. Supreme Court Justice Antonin Scalia, in which he holds court on a wide range of personal and judicial views.

Not surprisingly, he reads the Wall Street Journal and the Washington Times, but not the New York Times or the Washington Post (“shrilly liberal”).

One of his favorite television shows?  Seinfeld, especially the “soup Nazi” episode.

He believes in the Devil, as do most Catholics — and most people — he says.

He suspects that he has friends who are gay.

Here’s Scalia on his evolution as a constitutional originalist (who interprets the Constitution as the framers intended it rather than as an evolving document) and a textualist (who believes that statutes must be ­interpreted based on their words alone):

If a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional. I gave a talk once where I said they ought to pass out to all federal judges a stamp, and the stamp says—Whack! [Pounds his fist.]—STUPID BUT ­CONSTITUTIONAL. Whack! [Pounds again.] STUPID BUT ­CONSTITUTIONAL! Whack! ­STUPID BUT ­CONSTITUTIONAL … [Laughs.] And then somebody sent me one.

Here he is on the Court’s methods of evaluating discrimination (types of scrutiny):

I am not a fan of different levels of scrutiny. Strict scrutiny, intermediate scrutiny,blah blah blah blah. That’s just a thumb on the scales.

But there are some intelligent reasons to treat women differently. I don’t think anybody would deny that. And there really is no, virtually no, intelligent reason to treat people differently on the basis of their skin.

And here’s Scalia on why he doesn’t attend the State of the Union:

It’s childish.. . . . But I’m not the only one who didn’t go. John Paul Stevens never went, Bill Rehnquist never went during his later years. Because it is a childish spectacle. And we are trucked in just to give some dignity to the occasion. I mean, there are all these punch lines, and one side jumps up—­Hooray! And they all cheer, and then another punch line, and the others stand up, Hooray! It is juvenile! And we have to sit there like bumps on a log. We can clap if somebody says, “The United States is the greatest country in the world.” Yay! But anything else, we have to look to the chief justice. Gee, is the chief gonna clap? It didn’t used to be that bad.

Read the full interview here.

For lunch today, some random morsels about happenings at the U.S. Supreme Court as the justices prepare to open the new term on Monday.

Life on the Roberts Court

Marcia Coyle, who writes about the Court for the National Law Journal, talks about the backstories underlying some landmark decisions reached under the reign of Chief Justice John Roberts, as detailed further in her book, “The Roberts Court.”

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Linkrot, Tumblr and Technology at the Court  

As Adam Liptak reports in this New York Times piece, long gone are the days when the justices cited only to printed text in decisions that appeared only in books. “Since 1996,” he writes, “justices have cited materials found on the Internet 555 times.”   Apparently though no one told them links had to be maintained, because now close to half of the web links in opinions lead to nowhere.

This can sometimes be amusing. A link in a 2011 Supreme Court opinion about violent video games by Justice Samuel A. Alito Jr. now leads to a mischievous error message.

“Aren’t you glad you didn’t cite to this Web page?” it asks. “If you had, like Justice Alito did, the original content would have long since disappeared and someone else might have come along and purchased the domain in order to make a comment about the transience of linked information in the Internet age.”

Tumblr.jpg.CROP.rectangle3-large  And as noted here in The Atlantic, the microblogging platform Tumblr makes its first appearance at the court  this year, nestled in a brief filed by Harvard Law Professor Lawrence Lessig in the campaign finance case  McCutcheon  v. FEC. As Lessig explains on his own Tumblr page, the focus is on the origins of the word  ”corruption”:

The basic argument of the brief is that the Framers of the Constitution used the word “corruption” in a different, more inclusive way, than we do today. The Tumblr captures 325 such uses collected from the framing context, and tags to help demonstrate this more inclusive meaning.

Scalia v. Ginsburg: The Opera                       

Scalia & Ginsburg     Just after last year’s term came to an end in June, Justices Ruth Bader Ginsburg and Antonin Scalia — who when not sparring over decisions are actually friends, travel together and share a love of opera — sat down for a rare preview of an  opera written for and about them.  Listen here to part of the opera, as reported by NPR.

 

 

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Justice Antonin Scalia

In remarks styled “Mullahs of the West: Judges as Moral Arbiters,” U.S. Supreme Court Justice Antonin Scalia today told members of the North Carolina Bar Association, gathered in Asheville for their annual meeting, that judges have been increasingly asked to decide the moral issues of our time — a role they are ill-equipped to perform and one they should be hesitant to accept.

“Whether a woman has a natural right to an abortion, whether society has a right to take a man’s life for his crimes, whether a human being has a right to take his own life and to have the assistance of others in doing so – these and many similar questions involve basic morality,” Scalia said.

But judges are in no better position than anyone else to determine what is moral, he added.

“In a democratic society, it is the people, not unelected judges, who should be debating and resolving these issues.  There is no more reason to take these issues away from the people than there is on matters of economic policy, because there is no expert to decide them.”

Scalia blamed this “addiction to abstract moralizing” on the court’s move from treating the Constitution as a static document to a living one that requires a continual adjustment to societal expectations.

“Until relatively recently, the meaning of laws, including fundamental laws such as constitutions, was thought to be static,” he said. “What vague provisions such as a right to respect for private life or a right to equal protection meant could readily be determined in most areas from the practices that existed at the time it was enacted.  And only the people could bring about change — by amending the Constitution (women’s right to vote, for example). With a living constitution, it falls upon judges to interpret its provisions with regard to society’s changing standards of decency.”

That moralizing has crept into the judicial selection process, which has become increasingly politicized, he added.

“Instead of looking for qualified people, we are looking for those who agree with us as to what the annually-revised Constitution should say. And once we let that happen, the Constitution ceases to do what it was designed to do, and that is to prevent the majority from doing what they want to do.”

 

 

 

 

It’s fair to say that when Seventh Circuit Court of Appeals Judge Richard Posner wrote in Moore v. Madigan (previewed here last week) that Second Amendment protection extended to the right to armed self-defense in public, he didn’t anticipate the horrific massacre in Newtown just days later.

But that doesn’t make his words any less offensive, says Garrett Epps, a former reporter for The Washington Post and now professor at the University of Baltimore and author of  a new book called Wrong and Dangerous: Ten Right Wing Myths About Our Constitution.  Writing in The Atlantic this morningEpps likens Posner’s words in that opinion to those used by Justice Antonin Scalia in earlier U.S. Supreme Court cases dealing with the Second Amendment:

Neither the Supreme Court nor the Seventh Circuit displays the slightest concern for the real-world effects of [their] decision[s]. Instead, what matters is a kind of airless, abstract reasoning. To Justice Scalia, it is clothed in the garb of history; to Posner, it represents “pragmatism.” In fact, that callous indifference to consequences — ahistorical and unpragmatic — disfigures both the Supreme Court’s Second Amendment cases and reveals a flip attitude toward the problems of those who must live their lives outside federal courthouses surrounded by metal detectors and marshals.

Both men, Epps continues,  have evolved into the judicial version of “grumpy old men” with little consideration for the real world impact of their decisions:

More and more, the right wing of the federal judiciary is behaving like the nasty old uncle at the family dinner table, grumbling about how stupid young people are today. Why do they need medical care, or contraception, or protections from sexual violence, or anti-smoking efforts, or gun control? We didn’t have any of that stuff when I was a kid, and look how great I turned out!

That avuncular growl is grating at the best of times. In a moment of national mourning, it is repellent.