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  •  Scalia's point seems bizarre (11+ / 0-)

    He is on track when he says the Supreme Court decides what the law is, but then immediately goes off the rails.

    Yes, S. Ct. decides what the law is, NOT what the law WAS, nor WHEN that changed.  Olson properly pointed out what a ridiculous line of questioning this was (after the part you excerpted), as petitioners to the Court hadn't been asked such questions in Loving.  

    Of course, he was probably trying to spring a trap - hoping counsel would offer 1868, and then asking a follow up of whether the drafters of the 14th amendment really had gay marriage in mind, or something like that.
     

    •  Scalia's barf (4+ / 0-)

      This was the most inane line of questioning I have ever seen from an SCT justice. It is more evidence that Scalia is now just a narcissistic hack. To actually have a discussion premised on "when" the constitution "changed" for another court interpreting another constitution which was faced with a case that it-the Cal SCT- said was a case of first impression is bizarre. By this discussion Antonin shows me that he no longer thinks of himself as a judge but rather as a priest seeking revelation. Scalia was always problematic in OAs since he makes himself the story but back in the 90s when I was in front of him at least his queries had something to do with meaningful jurisprudence. Olson did everything but laugh at Scalia and made Tony look silly.

    •  No, he's dealing with a legal interpretion theory (4+ / 0-)
      Recommended by:
      Clem Yeobright, Rieux, Adam B, koNko

      which says that the law (constitution, statute, ordinance, treaty, will) is and has always always what it is and the courts recognize it rather than changing it (which is one reason why stare decisis is such a big deal.)

      What he did is not narcissistic, it's lawyerly: is posturing for legal scholars (and for law students, now and forever) who may someday adopt his position.  

      Plaintiffs' Employment Law Attorney (harassment, discrimination, retaliation, whistleblowing, wage & hour, &c.) in North Orange County, CA.

      "I love this goddamn country, and we're going to take it back."
      -- Saul Alinsky

      by Seneca Doane on Tue Mar 26, 2013 at 02:01:13 PM PDT

      [ Parent ]

      •  Exactly. Scalia is doing exactly the kind of (5+ / 0-)

        thing people do in law school, and law review articles, and -- obviously -- in arguments to the Supreme Court.

        What he did is not narcissistic, it's lawyerly: is posturing for legal scholars (and for law students, now and forever) who may someday adopt his position.  
        Scalia knows his answer to the question.  His answer is that the people never put in the Constitution a prohibition against discriminating against couples based on the fact that they were same-sex couples.  So it's not in there.  He wanted Olson to say exactly what Olson said -- that it "evolved," that it may not have been put in there in 1868, but because society has changed, the meaning of what was put in the Constitution in 1868 has changed to something that the people who voted for the 14th Amendment may not have intended to do, or thought they were doing.  

        His questions were a way of getting to the distinction between competing views of constitutional interpretation.

      •  I was wondering if you would show up. (2+ / 0-)
        Recommended by:
        terrypinder, koNko

        So: When did discrimination against gays as a protected class become unconstitutional?

        Too late for the simple life, too early for android love slaves - Savio

        by Clem Yeobright on Tue Mar 26, 2013 at 02:08:27 PM PDT

        [ Parent ]

        •  In my opinion, it happened in 1976 (5+ / 0-)

          in Craig v. Boren, which established intermediate (heightened) scrutiny for laws discriminating on the basis of gender.  Adam might cite the case establishing a somewhat heightened "rational plus" standard.  Either way: the technical answer is that it's already been there since 1868 and we just didn't admit it.

          Plaintiffs' Employment Law Attorney (harassment, discrimination, retaliation, whistleblowing, wage & hour, &c.) in North Orange County, CA.

          "I love this goddamn country, and we're going to take it back."
          -- Saul Alinsky

          by Seneca Doane on Tue Mar 26, 2013 at 02:30:21 PM PDT

          [ Parent ]

          •  Did you listen to the tape? (0+ / 0-)

            Am I wrong to think that if Cooper had responded to any question with the belligerence Olson did to several, someone would have jumped over the bench and punched him out?

            It was like the Old Boys Club meeting to which someone brought his nephew who's moved to town from the farm to attend the new Law School ...

            Do you know who Cooper is? Does he have a lot of experience on that level?  I just thought it sounded funny. Plus, of course, he had such a lousy case to argue ...

            Too late for the simple life, too early for android love slaves - Savio

            by Clem Yeobright on Tue Mar 26, 2013 at 02:51:59 PM PDT

            [ Parent ]

      •  If he was promoting textualism (1+ / 0-)
        Recommended by:
        JesseCW

        It'd be helpful if he examined the text under question - the Proposition.  

        I don't believe Scalia has ever written that every right must have a textual basis - why demand one here?  This isn't textualism, it's just posturing (as you said), probably for some dumb trap he read on Drudge.
         

      •  Though, then again.... (4+ / 0-)
        Recommended by:
        Dallasdoc, JesseCW, Seneca Doane, MPociask
        What he did is not narcissistic, it's lawyerly....
        Of course, one can be both of those at the same time....

         - Rieux, Esq.

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