MER-"CURIAL"-FOOTNOES
Gotta love this story about everyone's favorite "judge-moralizer" basher:
Supreme Court Releases Transcript of Oral Argument in Cuno
"The Supreme Court has released the transcript of the oral argument in Cuno v. DaimlerChrysler, Inc., 386 F.3d 738 (6th Cir. 2004), cert. granted, Nos. 04-1704 & 04-1724. The case involves the constitutionality of Ohio's investment tax credit (as well as the procedural question of Respondents' standing).
Among many interesting exchanges was this between Peter Enrich (Northeastern; Counsel for Respondents) and Justice Scalia:
"Mr. Enrich: In a footnote in Flast [v. Cohen], the Court specifically says, "Having now decided that there's Establishment Clause standing, we can also reach the free-exercise question without discussing whether there would be independent standing."
Justice Scalia: I had not recollected that footnote. I will -- I will find it. I don't read footnotes, normally."
********************************************************************************
No, he only writes ones for the sole purpose of disingenuously making ad hominem attacks on his colleagues. I believe him when he says that he doesn't read footnotes. He obviously didn't read Carolene Products footnote #4, or the famous footnote in Brown v. Board of Education. He bullied Justice Ginsburg into taking out a footnote from her dissent in Bush v. Gore about how the black vote was suppressed in 2000; one wonders why, given that he would not have read the footnote anyway. Scalia tends to make ad hominem attacks on his colleagues in the text of his opinions as much as he does in the footnotes; his colleagues, who have a greater sense of self-restraint, tend to place comments criticizing a judge by name in footnotes. So they have to read his bullying, but he, of course, doesn't bother himself with reading genuine criticisms. This is just one of the gazillion ways in which this man is a coward.
Oh, and did you hear? Why, just last week, he returned to his favorite topic: bashing the "Judge-Moralizer." His first broadside as he delivered the speech about this subject in front of the Heretic Foundation or whatever other organization illegally paid for his appearance: "Judges shouldn't decide whether abortion or gay marriage should be legal. States should." Since he's only been making comments like this for 30 years, how about we start holding him to the same standard as Republicans insisted that Roberts and Alito be held to and henceforth recuse him from every case involving these two topics? Why don't more litigants simply ASK him to recuse himself from such cases? What are they worried about? A little extra barking?
I cannot get enough of how Scalia interprets the fact that some judges' pronouncements that, say, abortion is constitutional is, a fortiori/a priori, evidence that the judge has acted as a "moralist" in arriving in the constitutional conclusion, substituting morals for reasoned constitutional adjudication. This interpretation is a profound case of projection on the part of Fat Five Fingers.
Take the following example: Romer v. Evans. Justice Kennedy held that an amendment to the Colorado constitution that requires that a repeal of that amendment be effected before homosexuals can lobby the state legislature like every other individual/group can in an attempt to secure passage of anti-discrimination laws for its benefit is unconstitutional. Kennedy's opinion contained no moist terms of affection for homosexuals or the homosexual lifestyle; the opinion simply stated that the law was not rationally related to a legitimate state interest (bigotry, he said - of any kind, toward any group - is not a legitimate state interest).
This same Justice Kennedy, of course, four years later, cast the deciding vote in Boy Scouts v. Dale, which held that the Scouts' freedom of association included the right to exclude homosexuals from membership. Yet Scalia, in Romer, claimed that Kennedy was catering to the interests of the "homosexual lobby," thereby implying that Kennedy's "morals" were "gay-friendly" (uggh), and even worse, that such morals were used to reach a desired outcome. Notice the complete circularity of this reasoning: Scalia's initial proposition - "Kennedy is catering to the homosexual lobby," i.e., is engaging in morals-based, outcome-determinative jurisprudence, finds no evidentiary support. Scalia then states that those whose morals are "gay friendly" - i.e. Kenneddy's are repulsive (after all, he treats us to, in Romer, an extensive discourse as to what kinds of "animus" are acceptable), and that Kennedy's repulsive morals were improperly used to reach the result Kennedy wanted. In other words, Kennedy, according to Scalia, engaged in a "moralistic" determination because he engaged in a moralistic determination.
Such eloquent reasoning from the man who, when asked if his hunting trip (pre-Harry Whittington) with Dick Cheney was proper, stated, "Quack, Quack."
In Lawrence v. Texas, Scalia used the same circuitous "logic" to attack Kennedy, only this time, Scalia upped the rhetorical ante. He claimed that Kennedy was not merely agreeing with the agenda of the "homosexual lobby," but rather, was "cooing" over it and had "signed on" to it. Scalia did not explain how this claim was consistent with Kennedy's decision in Dale.
What is remarkable in all of this (well, unremarkable to anyone who knows FFF) is that the only judge who did any moralizing with respect to any of the above three cases was, of course, Scalia. Now, according to Scalia's theory of jurisprudence, as applied to Romer and Lawrence, such moralizing wasn't needed: state passes law X, which is an encapsulation of that state's historical treatment of group Y; law X represents or could be found to represent popular majority sentiment with repect to group Y (satisfying popular majority sentiment is a legitimate state interest to Scalia, and any "morals" legislation that satisfies it, to him, is automatically rationally related to it); case closed.
Yet, of course, Scalia does not end there, in either case. He moralizes. In Romer, he goes on about how AWFUL it is that judges have losen sight of the CRITICAL distinction that teaches us that animus against gays per se may (one in a million times) be wrong, but animus against "the gay lifestyle" is certainly legitimate. The challenged law in Romer did not implicate this distinction, which is of course why Scalia brought it up: to express his moral opprobium however he could. He described the Colorado citizens who passed the law as "seemingly tolerant," and called those who opposed the amendment bigots. He then tried to link Kennedy with the American Bar Asociation, the latter of which has exacted an (unofficial) pledge from law schools such that the schools will not allow recruiters that discriminate against gays to recruit on their campuses. Scalia sas that this ABA "promise" is morally wrong, and that Kennedy, through his opinion, has "sided" with it (how, we are not told).
In short, anyone who, not having previously known anything about the two judges, who happens to sit down and read the opinion, would be quite properly convinced that the Judge-Moralist was Scalia, not Kennedy.
The Scalia moralizing gets worse in Lawrence. Scalia devotes an entire page to the following statement: "Many people do not want homosexuals as their babysitters, their soccer coachers, and so on. The majority, by striking down the law in question (a law prohibiting SODOMY between two non-related consenting adults in the privacy of the homes) offends these people."
Kennedy struck down the law by stating, simply, that bigotry alone is not a legitimate state interest (Texas, in this case, proffered bigotry as the only reason for the law). This comment was not a moral judgment about the relative worth or morality of gays qua gays. Scalia's above statement defended the morality of bigotry against gays qua gays, and was so self-righteous in its condemnation in this group of people that it did not even attempt to explain how someone not wanting a homosexual as a babysitter had any bearing upon the analysis of whether the state had a legitimate interest in barring gay sodomy. Scalia's opinion made clear that the law was proper simply because people (includng him) have animus against gay people, and that morality (how, we are not quite told) should dictate that this animus be given legal effect.
So, next time the Great Projector/the Great Moralizer blasts "The Judge-Moralizer," those reading his comments would be eminently well-advised to consider the source.
Supreme Court Releases Transcript of Oral Argument in Cuno
"The Supreme Court has released the transcript of the oral argument in Cuno v. DaimlerChrysler, Inc., 386 F.3d 738 (6th Cir. 2004), cert. granted, Nos. 04-1704 & 04-1724. The case involves the constitutionality of Ohio's investment tax credit (as well as the procedural question of Respondents' standing).
Among many interesting exchanges was this between Peter Enrich (Northeastern; Counsel for Respondents) and Justice Scalia:
"Mr. Enrich: In a footnote in Flast [v. Cohen], the Court specifically says, "Having now decided that there's Establishment Clause standing, we can also reach the free-exercise question without discussing whether there would be independent standing."
Justice Scalia: I had not recollected that footnote. I will -- I will find it. I don't read footnotes, normally."
********************************************************************************
No, he only writes ones for the sole purpose of disingenuously making ad hominem attacks on his colleagues. I believe him when he says that he doesn't read footnotes. He obviously didn't read Carolene Products footnote #4, or the famous footnote in Brown v. Board of Education. He bullied Justice Ginsburg into taking out a footnote from her dissent in Bush v. Gore about how the black vote was suppressed in 2000; one wonders why, given that he would not have read the footnote anyway. Scalia tends to make ad hominem attacks on his colleagues in the text of his opinions as much as he does in the footnotes; his colleagues, who have a greater sense of self-restraint, tend to place comments criticizing a judge by name in footnotes. So they have to read his bullying, but he, of course, doesn't bother himself with reading genuine criticisms. This is just one of the gazillion ways in which this man is a coward.
Oh, and did you hear? Why, just last week, he returned to his favorite topic: bashing the "Judge-Moralizer." His first broadside as he delivered the speech about this subject in front of the Heretic Foundation or whatever other organization illegally paid for his appearance: "Judges shouldn't decide whether abortion or gay marriage should be legal. States should." Since he's only been making comments like this for 30 years, how about we start holding him to the same standard as Republicans insisted that Roberts and Alito be held to and henceforth recuse him from every case involving these two topics? Why don't more litigants simply ASK him to recuse himself from such cases? What are they worried about? A little extra barking?
I cannot get enough of how Scalia interprets the fact that some judges' pronouncements that, say, abortion is constitutional is, a fortiori/a priori, evidence that the judge has acted as a "moralist" in arriving in the constitutional conclusion, substituting morals for reasoned constitutional adjudication. This interpretation is a profound case of projection on the part of Fat Five Fingers.
Take the following example: Romer v. Evans. Justice Kennedy held that an amendment to the Colorado constitution that requires that a repeal of that amendment be effected before homosexuals can lobby the state legislature like every other individual/group can in an attempt to secure passage of anti-discrimination laws for its benefit is unconstitutional. Kennedy's opinion contained no moist terms of affection for homosexuals or the homosexual lifestyle; the opinion simply stated that the law was not rationally related to a legitimate state interest (bigotry, he said - of any kind, toward any group - is not a legitimate state interest).
This same Justice Kennedy, of course, four years later, cast the deciding vote in Boy Scouts v. Dale, which held that the Scouts' freedom of association included the right to exclude homosexuals from membership. Yet Scalia, in Romer, claimed that Kennedy was catering to the interests of the "homosexual lobby," thereby implying that Kennedy's "morals" were "gay-friendly" (uggh), and even worse, that such morals were used to reach a desired outcome. Notice the complete circularity of this reasoning: Scalia's initial proposition - "Kennedy is catering to the homosexual lobby," i.e., is engaging in morals-based, outcome-determinative jurisprudence, finds no evidentiary support. Scalia then states that those whose morals are "gay friendly" - i.e. Kenneddy's are repulsive (after all, he treats us to, in Romer, an extensive discourse as to what kinds of "animus" are acceptable), and that Kennedy's repulsive morals were improperly used to reach the result Kennedy wanted. In other words, Kennedy, according to Scalia, engaged in a "moralistic" determination because he engaged in a moralistic determination.
Such eloquent reasoning from the man who, when asked if his hunting trip (pre-Harry Whittington) with Dick Cheney was proper, stated, "Quack, Quack."
In Lawrence v. Texas, Scalia used the same circuitous "logic" to attack Kennedy, only this time, Scalia upped the rhetorical ante. He claimed that Kennedy was not merely agreeing with the agenda of the "homosexual lobby," but rather, was "cooing" over it and had "signed on" to it. Scalia did not explain how this claim was consistent with Kennedy's decision in Dale.
What is remarkable in all of this (well, unremarkable to anyone who knows FFF) is that the only judge who did any moralizing with respect to any of the above three cases was, of course, Scalia. Now, according to Scalia's theory of jurisprudence, as applied to Romer and Lawrence, such moralizing wasn't needed: state passes law X, which is an encapsulation of that state's historical treatment of group Y; law X represents or could be found to represent popular majority sentiment with repect to group Y (satisfying popular majority sentiment is a legitimate state interest to Scalia, and any "morals" legislation that satisfies it, to him, is automatically rationally related to it); case closed.
Yet, of course, Scalia does not end there, in either case. He moralizes. In Romer, he goes on about how AWFUL it is that judges have losen sight of the CRITICAL distinction that teaches us that animus against gays per se may (one in a million times) be wrong, but animus against "the gay lifestyle" is certainly legitimate. The challenged law in Romer did not implicate this distinction, which is of course why Scalia brought it up: to express his moral opprobium however he could. He described the Colorado citizens who passed the law as "seemingly tolerant," and called those who opposed the amendment bigots. He then tried to link Kennedy with the American Bar Asociation, the latter of which has exacted an (unofficial) pledge from law schools such that the schools will not allow recruiters that discriminate against gays to recruit on their campuses. Scalia sas that this ABA "promise" is morally wrong, and that Kennedy, through his opinion, has "sided" with it (how, we are not told).
In short, anyone who, not having previously known anything about the two judges, who happens to sit down and read the opinion, would be quite properly convinced that the Judge-Moralist was Scalia, not Kennedy.
The Scalia moralizing gets worse in Lawrence. Scalia devotes an entire page to the following statement: "Many people do not want homosexuals as their babysitters, their soccer coachers, and so on. The majority, by striking down the law in question (a law prohibiting SODOMY between two non-related consenting adults in the privacy of the homes) offends these people."
Kennedy struck down the law by stating, simply, that bigotry alone is not a legitimate state interest (Texas, in this case, proffered bigotry as the only reason for the law). This comment was not a moral judgment about the relative worth or morality of gays qua gays. Scalia's above statement defended the morality of bigotry against gays qua gays, and was so self-righteous in its condemnation in this group of people that it did not even attempt to explain how someone not wanting a homosexual as a babysitter had any bearing upon the analysis of whether the state had a legitimate interest in barring gay sodomy. Scalia's opinion made clear that the law was proper simply because people (includng him) have animus against gay people, and that morality (how, we are not quite told) should dictate that this animus be given legal effect.
So, next time the Great Projector/the Great Moralizer blasts "The Judge-Moralizer," those reading his comments would be eminently well-advised to consider the source.
posted by EnterCenter at 11:03 AM
1 Comments:
This is just so beautiful, I feel tears welling up. Thank you for the great summary of FFF Tony.
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