Wednesday, September 19, 2012

Today's Scalia vs. Posner review

This story will never end, and for some reason I can't get enough of it.  Justice Scalia is the latest to fire back.  And Above the Law has all the juicy details:

What are your thoughts on the Richard Posner book review?
“I’m not going to get into this whole thing written for a glossy magazine.”
Okay, I will say this. It was misleading of Judge Posner to claim that I used “legislative history” in District of Columbia v. Heller, the landmark Second Amendment case. There’s a difference between considering “legislative history” — a legal term of art referring to the history of the enactment of a given provision, such as committee reports and floor statements and the like — and looking to the history of the time to get an understanding of how terms in a provision were understood.
(For more on this, see the Thomson Reuters interview. Scalia reportedly said, “To say that I used legislative history is simply, to put it bluntly, a lie.”)

He also had lots of other things to say.  Here's one of my favorite topics:

Should Supreme Court arguments be televised?
No. When I first arrived at the Court, I was in favor. I feel like something of a traitor for changing my mind, but now I’m very much opposed. Proponents claim it would educate; in reality, it would just serve to entertain.
“We spend very little of our time on that nonsense [constitutional rulings on hot-button issues like abortion or gay rights]. Most of our time is spent on the Internal Revenue Code, ERISA — incredibly boring stuff that no one can love, and only a lawyer can understand.”
If SCOTUS arguments were to be televised, we’ll just end up with 15-second soundbites that would give the American people a wrong impression about the work of the Court.

If this topic is boring you, go check out the DOJ stats on corruption convictions since 2002.  New Jersey leads the pack. We rank 9th, but in recent years the numbers are much lower than they were early in the 2000s.

Meantime, Rumpole is discussing Ayn Rand and Bruce Springsteen.  It's an interesting read.


Anonymous said...

Wow! and Wow again! These two guys run in the same circles and have to know each other. They are very similar in that they are both brilliant and cannot contain their intellectual curiosity. I think they developed an animosity years ago and this was just the last straw so to speak.

Rumpole said...

From the interview:
When asked what happens when linguistic analysis of a law conflicts with existing court decisions, Scalia said that judges cannot reinvent the wheel, particularly if precedent has been in place for a long time.

"We are textualists. We are originalists. We are not nuts," he said.

One prominent exception to that is Roe v. Wade, the Supreme Court's 1973 ruling that legalized abortion. He does not consider that binding precedent, he said, because it was wrong, remains controversial and is an issue better left to legislators than judges.

Rumpole says: So you see, he is a strict constructionist and philosophically' consistent right up to the point he doesn't like something (abortion, Al Gore as President, handgun laws, etc) at which point he is as activist as any leftist Jimmy Carter appointed judge.