Scalia was foremost an advocate of judicial restraint, who believed that the further the Courts stretched interpreting law, the more vulnerable the Courts become to the animosities of the Executive and Legislative branches. The Judiciary, Scalia understood, was the least powerful and most vulnerable of the three branches of government, and its strength and influence rests in its artful and judicious use of its very, very limited authority. A few Scalia quotes that illustrate this:
>There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.
>If you think aficionados of a living Constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility.
>“This Court holds only the judicial power—the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct.
>“Perhaps sensing the dismal failure of its efforts to show that ‘established by the State’ means “established by the State or the Federal Government,’ the Court tries to palm off the pertinent statutory phrase as ‘inartful drafting.’ … This Court, however, has no free-floating power ‘to rescue Congress from its drafting errors.’”
Scalia was foremost an advocate of judicial restraint, who believed that the further the Courts stretched interpreting law, the more vulnerable the Courts become to the animosities of the Executive and Legislative branches.
I don't think that's accurate. There is a position, albeit more in the academy than on the bench, that holds that judges should only in the rarest of circumstances hold that the actions of the other branches are unconstitutional. Scalia can't fairly be described as being an adherent of that school.
Rather Scalia was foremost an originalist, it's a school of legal thought that he helped pioneer as a law professor. Today judges and legal scholars needs to grapple with originalism -- agree or disagree you need to speak to it. And with Balkin and Amir's spin on it, to borrow a quote, we are increasingly all originalists now. It's can be hard to believe it now but it wasn't always like this. When Scalia was going to law school no one was poring over the diaries of the founders or the records of the reconstruction congress looking for clues.
Scalia was by no means the sole person responsible for the rise of originalism, nor the purest advocate for it, but he was certainly a major major contributor to it. That's what he will ultimately be remembered for, I think.
A restrained judiciary is easily confused with judicial restraint. Consider mandatory sentencing guidelines, knee jerk reactive handcuffs placed on wrists of Judges vilified for using judicial descretion. I think, but will never know, Scalia recognized how easily the legislative branch could sideline the Courts and he advocated for adoption of the Founder's intent as a means to protect the Courts foremost.
> I don't think that's accurate. There is a position, albeit more in the academy than on the bench, that holds that judges should only in the rarest of circumstances hold that the actions of the other branches are unconstitutional. Scalia can't fairly be described as being an adherent of that school.
My understanding was that Scalia himself explicitly claimed to be following this philosophy. What makes you say otherwise?
The evidence says otherwise. Scalia voted to strike down laws or held executive actions unconstitutional many times over the course of his career. At some point "the rarest of circumstances" has to have some bite. I'm sure he would have argued that he was compelled to do so by the text of the constitution and by the flagrant unconstitutionality of those laws/actions, but I don't think that's a good answer. He may have wished that circumstances would have allowed him to be an avatar of judicial restraint but regardless that's not what happened.
I wish Gore had won, and I don't know enough about law to have an opinion on the specifics of the case. But I am at peace with it for a simple reason: that election was within the margin of error. We can put a lot of stake into details of state law, but in reality it was a draw. Frankly I think the fairest thing would be a coin flip. In absence of that, I think "play it where it lies" is a fine proxy. I don't think a recount would've been any more or less fair.
I think our energies are better served changing the widespread voter disenfranchisement which does in fact distort the ability of our electoral system, as enacted in law, from representing the will of the people.
If you consider the recount abstracted from all other phenomena, then this may be a reasonable point of view.
But voter suppression by Republicans in the South is well-known and widespread, because the GOP wins more elections when the turnout, particularly black turnout, decreases. Florida has a long history of voter suppression, which has been documented on numerous occasions: http://campaignstops.blogs.nytimes.com/2012/04/05/florida-ho...
So, in the Supreme Court vote, we have a majority conservative court that includes Scalia, a Reagan/Bush era appointee, who happens to favor the side of the coin that puts another Bush in the White House.
Scalia admitted that a recount was potentially prejudicial to Bush, and decided it was best to quash it. His action takes place in a sequence of many actions designed to bolster the GOP. Coincidentally, Scalia helped roll back the Voting Rights Act, once a milestone for Civil Rights.
Every single one of his positions may be impeccably argued, but it's a striking coincidence that he toed a clear ideological line on abortion, gun control, affirmative action and gay marriage, among many other issues.
I do not believe his stance on Bush v. Gore was neutral. He had a horse in the race; his horse won; and America was the worse for it. Good riddance.
> But voter suppression by Republicans in the South is well-known and widespread, because the GOP wins more elections when the turnout, particularly black turnout, decreases.
The party that tips the scales for its establishment candidate with the superdelegate system can't complain about voter suppression. Clinton ended up with the same number of NH delegates even though Sanders won handily in that primary.
Florida was not within the margin of error in 2000. The number of people who were denied their right to vote would have made it a clear win for Gore. From the Rights Commission's report:
> The Commission's hearings spotlighted and this report highlights the harsh reality that despite the closeness of the election, it was widespread voter disenfranchisement and not the dead-heat contest that was the extraordinary feature of the Florida election.
Yeah, that's pretty close to what I think about the 2000 election as well. If you're going to blame one person for what happened, well, none of them were on the Supreme Court.
> under the strictest standard, where only a cleanly punched ballot with a fully removed chad was counted, Gore won by three votes.[38] Under all other standards, Bush won, with Bush's margin increasing as looser standards were used. ... because of the possibility of mistakes, it is difficult to conclude that Gore was surely the winner under the strict standard ...
While in another analysis "Bush won under stricter standards and Gore won under looser standards"
And there are also the "spoiled ballots" where "people had punched and written in a candidate’s name", eg, for people who would "check Gore and write Gore". These were rejected, even though the voter's intent was clear. "The Washington Post found that Gore’s name was punched on 46,000 of the over-vote ballots it, while Bush’s name was marked on only 17,000"
But with all the attention on hanging chad, we didn't hear about that last issue. (I didn't until I read it just now!)
Very interesting. My own thoughts on this are that we should not be trying to determine intent on improperly filled ballots. In the same way that I'm responsible for getting myself to the voting booth, I am responsible for filling out my ballot properly. If I fail at that, my vote won't be registered. Where ballots aren't sufficiently clear to voters, they should be made so.
Where ballots aren't sufficiently clear to voters, they should be made so.
Well there's the problem. What do you do when you have ballots that are objectively unclear, like the infamous butterfly ballot? You can't invalidate the election and have a new one--apart from the logistical problems, the turnout is going to differ significantly based on the media attention and the knowledge that the cancelled ballots were so close.
The best option you have is to mandate judicial review of ballots well before the election. But even that doesn't save you in the situation Florida actually found itself in.
"objectively unclear, like the infamous butterfly ballot"
I saw a reproduction of this ballot in the newspaper at the time and I remember wondering what the problem was supposed to be. It seemed perfectly clear, but journalists were jumping on the bandwagon of calling it confusing.
Analysts believe a minimum of 4,000 people accidentally voted for Pat Robertson (in a heavily Jewish, not heavily conservative area, the anti-Semite Robertson got far more votes than polls or expectations). 10,000 ballots were invalidated from double-punching Gore and Robertson. It was a major UI failure.
There's nothing that you can do about the butterfly ballots after the fact short of re-running the election, which is out of the question as you state.
Well, at oral argument, Scalia made it clear that only legal votes should be counted. To be honest, since the question was "what is a legal vote?" that seemed like circular reasoning. The underlying idea, though, is that if I walk into a polling place, and proudly yell my vote, and walk out, my vote isn't counted regardless of how clear the intent was.
Scalia's suggestion was that if a vote couldn't be read by a machine, it wasn't a legitimate vote regardless of any extenuating details. That may have been influenced by the fact that Florida law only mentioned recounts that were performed by running the ballots through the machines a second time.
I'd say a legal vote is one that is filled out in accordance with the instructions on a legal ballot. From what you're saying, I suspect that's what Scalia meant. If the machine misreads such properly filled-out ballots, that is certainly a problem and a recount would be justified.
No: a legal vote is as defined by Florida election law. As I remember (quite possibly fallaciously) that law held that a vote was to be counted if the intent was clear.
And, contrary to what reporters said, that standard actually wasn't from the section dealing with recounts. It was the standard to be used if a bunch of ballots were damaged before they could be counted by machine; say, in a car accident.
Florida law at the time only mentioned recounts in the context an automatic recount that involved putting the ballots back through the same machines a second time.
Gore's legal team asked for hand recounts, and suggested the "clear intent of the voter" standard. Scalia asked whether the standard should be "can be read by a machine," given that Florida statutes only mentioned recounts that involved machines.
If you still disagree, how would you answer my earlier question: I walk into a polling place, announce my name, clearly yell who I want to vote for, and leave. My intent is clear, should my vote count?
What if I were to mail in a ballot, that wasn't postmarked? My intent was clear, but Gore requested that such ballots not be counted. What does the postmark have to do with intent? Or is intent a necessary, but not sufficient, element?
For the record, the last time I filled out a paper ballot (Calinornia, late '90s), they handed me a special marker and told me to use it, or my vote would not count (they also told me not to mark two spots for the same office, or my vote would not count).
I agree that there should be strict, well-defined standards for which votes count, and the examples you mention shouldn't count.
However, "is readable by a machine" is not a well-defined standard, and is IMO way too strict; it's more than likely that a panel of human readers would all agree on which name is written on a ballot, without it being readable by a machine.
I'm not saying it's a good standard. I am saying that it's a standard that Scalia proposed, and I will concede that it sidesteps a few complications.
But it's also not as rigorous as it should be. Two machines may disagree on how readable a particular ballot is, even if both machines are operating within specified tolerances.
This comment needs to be better supported. It is intuitive that votes for POTUS would be a federal matter, and Wikipedia does not mention a jurisdictional issue for that case, nor any other federal interference conflict whatsoever.
Also, singling out Scalia when four other justices voted with him is biased. It is also an incredible stretch to cast responsibility for an incompetence in handling an unanticipated war on any individual (especially in the judiciary!).
You are not voting for POTUS. You are voting for your candidates chance to chose your states representative to the electoral collage. it's a state election. not a federal election.
You can't possibly put the result of Bush being elected on a Supreme Court Justice. Any more than you can put it on a single person who voted for him.
Yes, they all share some responsibility, but the amount is so miniscule given future actions and how many people were fooled and lied to so as to be almost completely disconnected.
Actually one can. Just like the cause of a hanged man's death is the knot the hangman tied. There's a great big sequence of events preceding it for sure.
That's not really an apt analogy; if a hangman refuses to tie a knot, they'll find another hangman. The Supreme Court Justice specifically gets to choose one way or the other.
No, he or she doesn't. Because if they did so arbitrarily then they have likely long since been thrown off the lower benches.
A judge doesn't decide: a judge weighs evidence and then states which interpretation of the law they believe is correct.
If we had a judicial system arbitrated over by people who could simply say "I want this outcome" and make it so, then the country would and should crumble.
Sort of. Discrimination from voting practices are protected by the equal protection clause, but otherwise, less well known, there is no affirmative right to voting in the Constitution.
A county or municipality could, for example, decide not to participate in a particular vote, which could have discriminatory effect, but without being overtly discriminatory.
Nope. What should have happened, if we weren't such a litigious society, is it would have been considered a political question, not a judicial one. Florida's legislature could have decided its Electors alone. And then if Congress considered that decision questionable, the president would have been decided in the House, and the vice president by the Senate. George W Bush would have been president in that case. And Joe Lieberman would have been Vice President.
"What should have happened, if we weren't such a litigious society," Ironic given it was Gore, not Bush, who filed the suits. Bush demanded the initial recount, it swung his way, Gore started filing suits. Many many recounts happened afterwards, I think NBC or CBS (hardly bush allies) had the most famous one for objectivity, and it came back for Bush.
I'd say more "when useful". Many of his opinions were too convoluted to be considered convenient. He often went on and on without saying much of anything.
> Scalia was foremost an advocate of judicial restraint
He believed in judicial restraint when it came to interfering with conservative political causes; but when it came to furthering those causes, he was an activist. The court should not protect LGBT Americans due to "judicial restraint". But when it comes to a healthcare law passed by Congress and signed by the President, the court should overturn it.
I could predict Scalia's rulings reliably by knowing only the politics of the case, not the law or the facts.
This is plainly untrue; Scalia was one of the most consistent and strong advocates for defendants' rights, and often decided cases which went against his personal morality. He was often quoted saying that the side he liked got no preferential consideration when it came to deciding a case, and if you look at the way he wrote his opinions, you will see this is true. He would often decide in favor of people who he personally disliked and believed to be guilty of horrible things because their arguments were correct.[1][2]
> Scalia was one of the most consistent and strong advocates for defendants' rights
That's not my impression and I quickly found the following, but I can't say the examples are representative of the overall trend or if the analyses are accurate (and I can't say the same of your examples). However, they are hard to reconcile with your claim:
1) Scalia is known for taking a hard stance against criminal defendants, and has long advocated striking down Miranda v. Arizona and upholding the constitutionality of the death penalty
2) Defendants in criminal cases have a constitutional right to a competent lawyer's advice when deciding whether to accept a plea bargain, the Supreme Court ruled ... The ruling drew a sharply worded dissent from Justice Antonin Scalia, ... He angrily called the court's rulings a "judicially invented right to effective plea bargaining." The article notes, 97% of federal convictions and 94% of state convictions result from guilty pleas.
3) Ring v Arizona: holding that the Sixth Amendment requires a jury [i.e., not merely a judge] to find the aggravating factors necessary for imposing the death penalty. Scalia dissented: He voted to deny defendants the right to a jury for those purposes.
4) Lawrence v Texas: The Court struck down the sodomy law in Texas and, by extension, invalidated sodomy laws in 13 other states, making same-sex sexual activity legal in every U.S. state and territory. - in 2003! Scalia dissented, which if successful (and IIUC) would have sent defendant Lawrence to prison for having sex. Again, in 2003!
If the above is correct and I understand correctly: He opposed Miranda, the minimal requirement to inform defendants of their rights; opposed the right to an attorney for plea bargains, from which result >94% of criminal convictions; opposed the right to a jury for a essential aspect of death sentences; and voted to allow the state to imprison a defendant for having consensual sex with an adult.
I'm sure there are some grey areas, but I have a hard time seeing him as a ally of criminal defendants.
Judges are not deciding whether they believe these rights should or should not exist. They are deciding whether these rights do exist in the law at the time the case is litigated.
If you believe you should have a right you don't have, or that you should or shouldn't be sent to jail for a particular activity, the right people to contact and hold accountable are your representatives in the appropriate legislative body. Judges are only supposed to interpret the law, even if they personally do not agree with the most accurate interpretation. Changing law or creating new law is the province of the legislature.
> Judges are not deciding whether they believe these rights should or should not exist. They are deciding whether these rights do exist in the law at the time the case is litigated.
I agree that's the ideal but we are talking about what happens in the real world, where clearly many judges' political and ideological views have significant influence. If not, why would the GOP care if Obama chooses the next Justice? Why is Scalia's passing considered a blow to partisan Republicans and ideological conservatives? A prominent attorney once said to me: Judges put on their pants one leg at a time, just like everybody else.
The point of my original comment (several levels up) and the person who responded is that Scalia indeed used his seat to advocate his beliefs.
Personally, while I've always preferred liberal legislatures, I do actually prefer conservative Justices. I want the Supreme Court to set a high Constitutional bar for a law to pass muster.
I can't say I've agreed with everything Scalia has ever said, but there's plenty I did agree with as well. I'm definitely a bit concerned at where we could end up if a far more liberal Justice is selected to replace him.
> Personally, while I've always preferred liberal legislatures, I do actually prefer conservative Justices. I want the Supreme Court to set a high Constitutional bar for a law to pass muster.
Let's clarify the meaning of "conservative". It could mean a judge who interprets the law strictly, or it could mean a judge who uses his position for partisan conservative purposes.
He absolutely was not. He was an advocate of interpreting original intent to align with his bigoted social and religious views, voting accordingly, and averting responsibility by acting as though he was merely honoring the intent. When that play wasn't available, he was a fan of playing the "states rights" card.
Truly remarkable were his mental gymnastics allowing him to justify his activism as one of the above. Perhaps his strongest performance was his conclusion that money is speech, corporations are people, and therefore corporations are not to be limited in using their cash for political influence. But he helped the Koch brothers with fundraising, who were the biggest beneficiaries of that decision, so clearly he had to convince himself that what he decided made sense somehow.
Unsurprisingly, he can barely maintain that position with a straight face when confronted head on:
Anonymous money via a corporate entity isn't a problem because "the reporters can find out" and the amount of money spent to influence politics is insignificant because "we probably spend more on cosmetics anyway". People really look up to this guy?
>There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.
>If you think aficionados of a living Constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility.
>“This Court holds only the judicial power—the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct.
>“Perhaps sensing the dismal failure of its efforts to show that ‘established by the State’ means “established by the State or the Federal Government,’ the Court tries to palm off the pertinent statutory phrase as ‘inartful drafting.’ … This Court, however, has no free-floating power ‘to rescue Congress from its drafting errors.’”