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Thread: Scalia was an intellectual phony: Can we please stop calling him a brilliant jurist?

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    Default Scalia was an intellectual phony: Can we please stop calling him a brilliant jurist?

    Yes, I know the article is from Salon. Yes, I know it goes against the right's (and some of the left's) conventional wisdom. However, the author is a law professor and I enjoyed reading his viewpoint because I never saw any exceptional brilliance in Scalia either.

    No one wants to disrespect the dead. But we disrespect the truth to hail his legal mind and phony, grand principles

    George Orwell once noted that when an English politician dies “his worst enemies will stand up on the floor of the House and utter pious lies in his honour.” Antonin Scalia was neither English, nor technically speaking a politician, but a similar tradition can be witnessed in the form of the praise now being heaped on him. For example, prominent liberal legal academic and former Obama administration lawyer Cass Sunstein has just offered the opinion that Scalia “was not only one of the most important justices in the nation’s history, he was also among the greatest.” Scalia’s greatness, Sunstein claims, “lies in his abiding commitment to one ideal above any other: the rule of law.” Sunstein’s assessment strikes me as not merely wrong, but as the precise opposite of the truth. Scalia was not a great judge: he was a bad one. And his badness consisted precisely in his contempt for the rule of law, if by “the rule of law” one means the consistent application of legal principles, without regard to the political consequences of applying those principles in a consistent way.

    One of Scalia’s many obnoxious qualities as a jurist was his remarkably pompous, pedantic, and obsessive insistence that the legal principles he (supposedly) preferred – textualism in statutory interpretation, originalism when reading the Constitution, and judicial restraint when dealing with democratically-enacted legal rules – were not merely his preferences, but simply “the law.”

    Given that those principles are and always have been controversial among American judges, lawyers, and politicians, insisting that they ought to control judicial interpretation as a matter of definition makes about as much sense as arguing for the desirability of, say, a particular income tax rate by claiming that the advocate’s preferred rate simply is the “true” rate (in other words it’s a nonsensical argument on its face).

    But this kind of question-begging nonsense was the least of Scalia’s judicial faults. For the truth is that, far more than the average judge, Scalia had no real fidelity to the legal principles he claimed were synonymous with a faithful interpretation of the law. Over and over during Scalia’s three decades on the Supreme Court, if one of his cherished interpretive principles got in the way of his political preferences, that principle got thrown overboard in a New York minute.

    I will give just three out of many possible examples. In affirmative action cases, Scalia insisted over and over again that the 14th Amendment required the government to follow color-blind policies. There is no basis for this claim in either the text or history of the amendment. Indeed Scalia simply ignored a rich historical record that reveals, among other things, that at the time the amendment was ratified, the federal government passed several laws granting special benefits to African-Americans, and only African-Americans. No honest originalist reading of the Constitution would conclude that it prohibits affirmative action programs, but Justice Scalia was only interested in originalism to the extent that it advanced his political preferences.

    Similarly, the men who drafted and ratified the First Amendment would, it’s safe to say, been shocked out of their wits if someone had told them they were granting the same free speech rights to corporations they were giving to persons. Again as a historical matter, this idea is an almost wholly modern invention: indeed it would be hard to come up with a purer example of treating the Constitution as a “living document,” the meaning of which changes as social circumstances change. In other words, it would be difficult to formulate a clearer violation of Scalia’s claim that the Constitution should be treated as if it is “dead dead dead.”

    Finally, and most disgracefully, Justice Scalia played a key role in the judicial theft of the 2000 presidential election. He was one of five justices who didn’t bother to come up with something resembling a coherent legal argument for intervening in Florida’s electoral process. A bare majority of the Court handed the election to George W. Bush, and the judges making up that majority did so while trampling on the precise legal principles Justice Scalia, in particular, claimed to hold so dear: judicial restraint, originalist interpretation, and respect for states’ rights.

    These examples are not rare deviations from an otherwise principled adherence to Scalia’s own conception of the rule of law: they were the standard operating procedure for the most over-rated justice in the history of the United States Supreme Court.

    http://www.salon.com/2016/02/18/scal...lliant_jurist/
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    who is Paul Campos and why should we give a fuck what his opinion of Scalia is.....compared to Campos, Scalia WAS a brilliant jurist......and probably would have been a better journalist as well......

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    I never saw any exceptional brilliance in Scalia either.
    What would be "exceptional brilliance" that can be seen in jurists?

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    Corporations are not able to claim constitutional protections that would not otherwise be available to persons acting as a group.
    "corporations are people" is such a dishonest dumbed down meme -it's despicable. The OP is almost pure trash not worth time to critique

    Similarly, the men who drafted and ratified the First Amendment would, it’s safe to say, been shocked out of their wits if someone had told them they were granting the same free speech rights to corporations they were giving to persons

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    Quote Originally Posted by christiefan915 View Post
    Yes, I know the article is from Salon. Yes, I know it goes against the right's (and some of the left's) conventional wisdom. However, the author is a law professor and I enjoyed reading his viewpoint because I never saw any exceptional brilliance in Scalia either.

    No one wants to disrespect the dead. But we disrespect the truth to hail his legal mind and phony, grand principles

    George Orwell once noted that when an English politician dies “his worst enemies will stand up on the floor of the House and utter pious lies in his honour.” Antonin Scalia was neither English, nor technically speaking a politician, but a similar tradition can be witnessed in the form of the praise now being heaped on him. For example, prominent liberal legal academic and former Obama administration lawyer Cass Sunstein has just offered the opinion that Scalia “was not only one of the most important justices in the nation’s history, he was also among the greatest.” Scalia’s greatness, Sunstein claims, “lies in his abiding commitment to one ideal above any other: the rule of law.” Sunstein’s assessment strikes me as not merely wrong, but as the precise opposite of the truth. Scalia was not a great judge: he was a bad one. And his badness consisted precisely in his contempt for the rule of law, if by “the rule of law” one means the consistent application of legal principles, without regard to the political consequences of applying those principles in a consistent way.

    One of Scalia’s many obnoxious qualities as a jurist was his remarkably pompous, pedantic, and obsessive insistence that the legal principles he (supposedly) preferred – textualism in statutory interpretation, originalism when reading the Constitution, and judicial restraint when dealing with democratically-enacted legal rules – were not merely his preferences, but simply “the law.”

    Given that those principles are and always have been controversial among American judges, lawyers, and politicians, insisting that they ought to control judicial interpretation as a matter of definition makes about as much sense as arguing for the desirability of, say, a particular income tax rate by claiming that the advocate’s preferred rate simply is the “true” rate (in other words it’s a nonsensical argument on its face).

    But this kind of question-begging nonsense was the least of Scalia’s judicial faults. For the truth is that, far more than the average judge, Scalia had no real fidelity to the legal principles he claimed were synonymous with a faithful interpretation of the law. Over and over during Scalia’s three decades on the Supreme Court, if one of his cherished interpretive principles got in the way of his political preferences, that principle got thrown overboard in a New York minute.

    I will give just three out of many possible examples. In affirmative action cases, Scalia insisted over and over again that the 14th Amendment required the government to follow color-blind policies. There is no basis for this claim in either the text or history of the amendment. Indeed Scalia simply ignored a rich historical record that reveals, among other things, that at the time the amendment was ratified, the federal government passed several laws granting special benefits to African-Americans, and only African-Americans. No honest originalist reading of the Constitution would conclude that it prohibits affirmative action programs, but Justice Scalia was only interested in originalism to the extent that it advanced his political preferences.

    Similarly, the men who drafted and ratified the First Amendment would, it’s safe to say, been shocked out of their wits if someone had told them they were granting the same free speech rights to corporations they were giving to persons. Again as a historical matter, this idea is an almost wholly modern invention: indeed it would be hard to come up with a purer example of treating the Constitution as a “living document,” the meaning of which changes as social circumstances change. In other words, it would be difficult to formulate a clearer violation of Scalia’s claim that the Constitution should be treated as if it is “dead dead dead.”

    Finally, and most disgracefully, Justice Scalia played a key role in the judicial theft of the 2000 presidential election. He was one of five justices who didn’t bother to come up with something resembling a coherent legal argument for intervening in Florida’s electoral process. A bare majority of the Court handed the election to George W. Bush, and the judges making up that majority did so while trampling on the precise legal principles Justice Scalia, in particular, claimed to hold so dear: judicial restraint, originalist interpretation, and respect for states’ rights.

    These examples are not rare deviations from an otherwise principled adherence to Scalia’s own conception of the rule of law: they were the standard operating procedure for the most over-rated justice in the history of the United States Supreme Court.

    http://www.salon.com/2016/02/18/scal...lliant_jurist/
    When you mentioned it was from Salon, I knew there was reason to read it. It was a political hack piece that only people like you use when you go into your room to do things to yourself you couldn't get a horny dog to do to you.

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    Most of us render judgment based on ideology, something Scalia stood up against. That alone made him a great Scotus. He was brilliant in his own right, something most can only aspire to be. I'll leave it at that.

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    Quote Originally Posted by Lovebug View Post
    Most of us render judgment based on ideology, something Scalia stood up against. That alone made him a great Scotus. He was brilliant in his own right, something most can only aspire to be. I'll leave it at that.
    My ideology centers around upholding the Constitution by what the founders intended. That's what Scalia did. That's what made him great.

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    He seemed racist as fuck
    So grand wizards would love him

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    Quote Originally Posted by The Dude View Post
    He seemed racist as fuck
    So grand wizards would love him
    You didn't know who he was until he died liar. Now, you act as if you had a clue about who he was and the fine job he did.

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    Quote Originally Posted by CFM View Post
    You didn't know who he was until he died liar. Now, you act as if you had a clue about who he was and the fine job he did.
    Prove it moron
    He was a fat racist
    Therefore you worshiped him

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    Quote Originally Posted by The Dude View Post
    Prove it moron
    He was a fat racist
    Therefore you worshiped him
    He was a member of the SCOTUS. The closest you could come to being at the Court was cleaning the toilets, emptying the trash, and sweeping the floors. It's right in line with what your kind does.

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    Quote Originally Posted by CFM View Post
    He was a member of the SCOTUS. The closest you could come to being at the Court was cleaning the toilets, emptying the trash, and sweeping the floors. It's right in line with what your kind does.
    Do millionaires do that

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    Scalia espoused the doctrine of "originalism," which meant that in cases, he interpreted the Constitution by the "original public meaning" of the words written by the framers, as understood nearly 240 years ago.

    That was, he believed, the only way to insulate the Constitution from the personal values of judges and the political winds of the day.

    He often derided "nine unelected lawyers" usurping the popular will of the people by Court opinions that were the equivalent of legislative enactments.

    He was a major force in Bush v. Gore's 5-4 majority opinion that stopped the Florida Supreme Court's ongoing order for a full state recount. In an utterly specious, brazenly-political opinion by the five Republicans on the Court, the recount was stopped and George W. Bush was "selected" as President by five unelected lawyers. When questioned in public about this decision, he replied injudiciously "get over it."

    Scalia was a corporatist, as displayed by his vote in the Citizens United case in 2010 overruling precedent and giving corporations the power to spend money without dollar limitations to support or denounce candidates for public office. Justice Scalia was inclined, with important exceptions, to defer to executive power against civil liberties. He was also inimical to fuller voting rights and hostile to government regulation of business and allowing class actions by consumers and workers.

    Leading conservative thinkers often took him to task.

    Professor of law, Richard A. Epstein excoriated Justice Scalia's judicial activism, especially his hostility to taxpayers "standing" to sue the government and Congress "for overstepping their Constitutional authority." "Justice Scalia," concludes the University of Chicago scholar, "takes a blatantly internationalist position by reading into the Constitution limitations found neither in its text nor its basic structure, nor in the general judicial practice running deep in our history."

    A more startling put-down from the celebrated conservative jurist and former academic colleague of Justice Scalia, Richard A. Posner, came in a lengthy critique of Scalia's 2012 book, Reading Law: the Interpretation of Legal Texts. Judge Posner's article was called "The Incoherence of Antonin Scalia."





    http://www.huffingtonpost.com/ralph-nader/the-conundrums-of-justice_b_9276954.html

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    Quote Originally Posted by Legion Troll View Post
    Scalia espoused the doctrine of "originalism," which meant that in cases, he interpreted the Constitution by the "original public meaning" of the words written by the framers, as understood nearly 240 years ago.

    That was, he believed, the only way to insulate the Constitution from the personal values of judges and the political winds of the day.

    He often derided "nine unelected lawyers" usurping the popular will of the people by Court opinions that were the equivalent of legislative enactments.

    He was a major force in Bush v. Gore's 5-4 majority opinion that stopped the Florida Supreme Court's ongoing order for a full state recount. In an utterly specious, brazenly-political opinion by the five Republicans on the Court, the recount was stopped and George W. Bush was "selected" as President by five unelected lawyers. When questioned in public about this decision, he replied injudiciously "get over it."

    Scalia was a corporatist, as displayed by his vote in the Citizens United case in 2010 overruling precedent and giving corporations the power to spend money without dollar limitations to support or denounce candidates for public office. Justice Scalia was inclined, with important exceptions, to defer to executive power against civil liberties. He was also inimical to fuller voting rights and hostile to government regulation of business and allowing class actions by consumers and workers.

    Leading conservative thinkers often took him to task.

    Professor of law, Richard A. Epstein excoriated Justice Scalia's judicial activism, especially his hostility to taxpayers "standing" to sue the government and Congress "for overstepping their Constitutional authority." "Justice Scalia," concludes the University of Chicago scholar, "takes a blatantly internationalist position by reading into the Constitution limitations found neither in its text nor its basic structure, nor in the general judicial practice running deep in our history."

    A more startling put-down from the celebrated conservative jurist and former academic colleague of Justice Scalia, Richard A. Posner, came in a lengthy critique of Scalia's 2012 book, Reading Law: the Interpretation of Legal Texts. Judge Posner's article was called "The Incoherence of Antonin Scalia."





    http://www.huffingtonpost.com/ralph-nader/the-conundrums-of-justice_b_9276954.html
    Funny thing is Scalia made it to the Court and the only way you'd get close to it is to sweep the floors he has walked on.

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