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View Diary: Inexpert thoughts on today's Supreme Court arguments (72 comments)

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  •  You're scarcely being fair (8+ / 0-)

    to this inexpert diarist. I may well be wrong in my analysis, but I was not being dishonest or deliberately unfair in this diary. There have been times when I've held my nose and defended Scalia on this site; I will do so again if the need arises.

    My intellectual reaction to Scalia's line of questioning was very similar to Olson's, even before I came to Olson's responses. My emotional reaction was that Scalia was taking a very passive-aggressive stance with this approach, as in my second quote from him here:

    It seems to me you ought to be able to tell me when. Otherwise, I don't know how to decide the case.
    The way I read it, his response on the Equal Protection clause of the 14th Amendment makes him look worse, not better. He doesn't justify why the Equal Protection clause applies to school segregation, nor does he address the fact that the Court got it horribly wrong in Plessy v. Ferguson before getting it right in Brown. To me, this latter question is much more relevant to the matter at hand: United States history is replete with examples of our nation not living up to its ideals, and all too often even the Supreme Court may overlook the inherent unconstitutionality of a law before ultimately arriving at that same conclusion in a later case. This is what happened with Brown, with Loving, and with Abington v. Schempp, just to name a few examples.

    (If I remember right, Scalia is also one of those jurists who continues to insist that the Equal Protection clause is improperly interpreted. If I'm right about that, and I think I am, then he is being disingenuous here, by casually invoking it with the now-standard interpretation that he would insist is incorrect.)

    So, I don't agree that Olson was dodging a legitimate question. I think he was trying to point out, delicately, that the question was not a legitimate one.

    Let us all have the strength to see the humanity in our enemies, and the courage to let them see the humanity in ourselves.

    by Nowhere Man on Wed Mar 27, 2013 at 03:43:57 AM PDT

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    •  Correction (2+ / 0-)
      Recommended by:
      penguins4peace, Greenfinches

      I don't know that either Loving or Schempp overturned any specific Supreme Court cases. However, they both addressed issues that had long been taken for granted by dominant parts of U.S. culture.

      Let us all have the strength to see the humanity in our enemies, and the courage to let them see the humanity in ourselves.

      by Nowhere Man on Wed Mar 27, 2013 at 03:52:23 AM PDT

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    •  Clarification (4+ / 0-)

      Abington was not an equal protection case.  It was squarely decided based upon the Establishment Clause contained in the First Amendment.  Many people confuse the application of the due process clause of the Fourteenth Amendment, which makes the constitution applicable to the states, with equal protection, but they are not the same thing.

      In contrast, Loving and Brown were both equal protection cases under the Fourteenth Amendment in that both expressly were grounded in the equal protection clause, not another amendment.

      I agree with you that Scalia was being passive aggressive, but he was being passive aggressive with a purpose.  As an "originalist", Scalia has long made clear that the ONLY group protected, in his view, by the Fourteenth Amendment equal protection clause is African-Americans, the originally intended beneficiaries. Now, of course, that's not what the amendment actually says: it refers to "persons" and "citizens."  But to Scalia the broad words use don't matter; the original intent was narrow therefore, claims of other groups are not, in his view, as deserving of protection absent a compelling case (for the record Scalia ain't fond of the 14th doing anything special for Black folks either, thus his "racial entitlement" mentality). For example, he has said multiple times that he does not believe that the equal protection clause protects women.  That is IMO really why he was pressing Olson; nowhere has the court ever before said that the equal protection clause applied to LGBT folks.  His view is that since the US Constitution doesn't expressly call out those rights, the decision about whether the rights should be granted is a state-by-state matter.  Precisely the position of the Prop. 8 proponents.

      •  Good point (2+ / 0-)
        Recommended by:
        shanikka, penguins4peace

        I tend to conflate the Due Process clause and the Equal Protection clause (as I said, I'm not a lawyer :-) Schempp relies on the Due Process clause to the extent that that clause is the basis for applying the Bill of Rights to the states.

        (Schempp is one of my favorite cases, not least because I know Ellery Schempp in real life. :-)

        Let us all have the strength to see the humanity in our enemies, and the courage to let them see the humanity in ourselves.

        by Nowhere Man on Wed Mar 27, 2013 at 05:11:42 AM PDT

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    •  Au contraire, I think you'll find (2+ / 0-)
      Recommended by:
      Nowhere Man, penguins4peace

      that Scalia has been consistent in his interpretation of the 14th Amendment as having been intended to prevent racial discrimination as applied in Brown and Loving.

      And he was clear yesterday, I think, that he feels Loving would have been a wrong decision in 1867 but a correct one in 1869, because there was an event that made a difference. Olson was no doubt wise to float like a butterfly for 5 minutes because he had no answer that would win Scalia's vote and needed no answer to satisfy Kennedy ...

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

      by Clem Yeobright on Wed Mar 27, 2013 at 05:05:36 AM PDT

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      •  But how is it relevant (0+ / 0-)

        whether the 14th Amendment was passed in 1868 or 1968? What would seem to matter is how the Constitution applies today, and what cases and decisions guide its interpretation. The precise timing seems like a side issue to me.

        Let us all have the strength to see the humanity in our enemies, and the courage to let them see the humanity in ourselves.

        by Nowhere Man on Wed Mar 27, 2013 at 05:13:56 AM PDT

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        •  That is not (2+ / 0-)
          Recommended by:
          penguins4peace, Greenfinches

          the Scalia approach. He does not believe it "evolves" at all. He believes it meant today only what the framers of a particular provision intended it to mean when that provision was adopted.

          As I wrote below, this theory does not always work. Nor does he always apply it. The 2nd Amendment was created with muskets and militias in mind, but Scalia was fine with finding an individual right to handguns.

          Republicans...think the American standard of living is a fine thing--so long as it doesn't spread to all the people. And they admire the Government of the United States so much that they would like to buy it. Harry S. Truman

          by fenway49 on Wed Mar 27, 2013 at 09:40:19 AM PDT

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      •  But too facile (3+ / 0-)
        Scalia has been consistent in his interpretation of the 14th Amendment as having been intended to prevent racial discrimination as applied in Brown and Loving.
        His explanation has been: "the 14th Amendment is about race, so discrimination based on race is properly subject to strict scrutiny." He's saying for the record now that Brown should have been the law as soon as the 14th was adopted, implicitly stating that Plessy was just wrong. He's also on the record as believing Loving was decided correctly.

        But as Professor Jack Balkin pointed out in 2009, this does not jibe with his with his originalist approach: "The generation that ratified the Fourteenth Amendment expected that laws banning interracial marriage and interracial sex would be constitutional." Indeed, they almost certainly thought segregated schools were OK, as evidenced by the 8-1 vote in Plessy (much closer in time to 1868 than was Brown). Even the Harlan dissent in Plessy stressed that social equality was not intended.

        His theory also doesn't fit Bolling v. Sharpe (the companion case to Brown that ended school segregation in DC). DC being a federal district and not a state, the 14th Amendment's equal protection guarantee did not strictly apply to it. The Court held that the 5th Amendment's due process clause, which does apply to the federal government, essentially had subsumed the guarantee of equal protection in the later-adopted 14th Amendment (reverse incorporation). It's a form of substantive due process -- there can be no due process accorded if equal protection is lacking.

        But Scalia, in discussing cases like Roe v. Wade and Griswold and Lawrence, rejects the very idea of substantive due process. And the 5th Amendment was adopted in 1791. Surely there was no intent by its framers to include equal protection on the basis of race. So it's hard to square his support of these decisions with his purportedly originalist theory.  

        Republicans...think the American standard of living is a fine thing--so long as it doesn't spread to all the people. And they admire the Government of the United States so much that they would like to buy it. Harry S. Truman

        by fenway49 on Wed Mar 27, 2013 at 09:38:08 AM PDT

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        •  I don't think we disagree (1+ / 0-)
          Recommended by:
          penguins4peace

          As I wrote above:

          United States history is replete with examples of our nation not living up to its ideals, and all too often even the Supreme Court may overlook the inherent unconstitutionality of a law before ultimately arriving at that same conclusion in a later case.
          But IIRC: Scalia has defined himself as following "original meaning" rather than "original intent". As I remember him describing it, original meaning would incorporate via precedent those same blind spots (e.g., segregated schools) that original intent would strike down, because then-contemporary laws and practices could be used to clarify what the original meaning of a section of the Constitution might have been. I believe Scalia has taken this approach many times. That still leaves him needing to explain why he thinks Plessy was wrong and Brown was right.

          Let us all have the strength to see the humanity in our enemies, and the courage to let them see the humanity in ourselves.

          by Nowhere Man on Wed Mar 27, 2013 at 10:20:15 AM PDT

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          •  Right (2+ / 0-)
            Recommended by:
            Nowhere Man, Clem Yeobright

            I was responding to Clem Yeobright's statement that Scalia is consistent in saying the 14th Amendment should apply to race, but generally not to other things like sexual orientation. I made the same point myself, but on further reflection it doesn't hold. Under an originalist view of the 14th Amendment, Plessy and Loving would go the other way.

            You are right that Scalia has criticized "original intent" on the theory that you can't identify a single intent. Thus original meaning, in which you look at the words in the context of the times when they wrote it, to divine the meaning as they would have understood it. This approach is even more hardline; there is no easy way to square that approach with Brown and Loving. 1868-era laws and customs did not promote integrated schools or interracial marriages.

            Republicans...think the American standard of living is a fine thing--so long as it doesn't spread to all the people. And they admire the Government of the United States so much that they would like to buy it. Harry S. Truman

            by fenway49 on Wed Mar 27, 2013 at 02:12:31 PM PDT

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    •  In "defense" of Scalia (2+ / 0-)
      Recommended by:
      Nowhere Man, Clem Yeobright

      His originalist approach (discarded when it proves inconvenient, as with the Heller case) would lead him to conclude that the 14th Amendment was adopted to promote racial equality, nothing else.

      Republicans...think the American standard of living is a fine thing--so long as it doesn't spread to all the people. And they admire the Government of the United States so much that they would like to buy it. Harry S. Truman

      by fenway49 on Wed Mar 27, 2013 at 08:44:21 AM PDT

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      •  I also think it's worth mentioning (2+ / 0-)
        Recommended by:
        penguins4peace, Clem Yeobright

        that the reason Olsen got away with shouting at Scalia is that Scalia was trolling him. Scalia likes to have fun with this stuff. If Scalia's comments are distatesful they're also honest. I think I have more patience for that than I do for the new Republican tactic of lying through your teeth about your actual position. At least with Scalia, you have a discussion and an opportunity to change peoples' minds.

        •  True enough (1+ / 0-)
          Recommended by:
          Greenfinches

          Not like accusing the President of cutting Medicare when you have put your name to a budget that cuts it a lot more.

          Still a sick puppy who's idea of fun is making highly public obnoxious comments about his fellow citizens.

          Republicans...think the American standard of living is a fine thing--so long as it doesn't spread to all the people. And they admire the Government of the United States so much that they would like to buy it. Harry S. Truman

          by fenway49 on Wed Mar 27, 2013 at 02:20:23 PM PDT

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