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Author Topic:   Scalia is a Scoundrel
Percy
Member
Posts: 22679
From: New Hampshire
Joined: 12-23-2000
Member Rating: 3.8


(2)
Message 1 of 108 (760902)
06-26-2015 12:19 PM


Just finished reading the NYT editorial The Roberts Court’s Reality Check, and it contained the following gems. This is Scalia writing last year in his opinion on Utility Air Regulatory Group v. Environmental Protection Agencey et al.:
But we, and EPA, must do our best, bearing in mind the "'fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.'" FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133 (2000). As we reiterated the same day we decided Massachusetts, the presumption of consistent usage "readily yields" to context, and a statutory term‐even one defined in the statute‐"may take on distinct characters from association with distinct statutory objects calling for different implementation strategies." Duke Energy, supra, at 574.
And yet here he is writing yesterday in his dissenting opinion concerning the ruling on the Affordable Care Act:
Words no longer have meaning if an Exchange that is not established by a State is "established by the State." It is hard to come up with a clearer way to limit tax credits to state Exchanges than to use the words "established by the State." And it is hard to come up with a reason to include the words "by the State" other than the purpose of limiting credits to state Exchanges. "[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover." Lynch v. Alworth-Stephens Co., 267 U. S. 364, 370 (1925) (internal quotation marks omitted). Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.
So it seems that if Justice Scalia agrees with the words then they must be interpreted precisely literally, and if he disagrees then they must be interpreted in context. What a scoundrel he is, and a blatant one at that.
--Percy

Replies to this message:
 Message 2 by nwr, posted 06-26-2015 1:11 PM Percy has seen this message but not replied
 Message 4 by NoNukes, posted 06-26-2015 7:10 PM Percy has replied
 Message 25 by Dr Adequate, posted 07-18-2015 1:39 AM Percy has seen this message but not replied

  
Percy
Member
Posts: 22679
From: New Hampshire
Joined: 12-23-2000
Member Rating: 3.8


Message 5 of 108 (761011)
06-27-2015 7:53 AM
Reply to: Message 4 by NoNukes
06-26-2015 7:10 PM


NoNukes writes:
First of all, yes Scalia is a scoundrel. But on the other hand, in each of the instance you cite, Scalia correctly cites provisions of statutory construction that the other Justices can be found to have used on particular occasions.
You mean the other Justices have done the same thing as Scalia, chosing their interpretive scheme to fit their desired ends? It would be interesting to see examples of this.
--Percy

This message is a reply to:
 Message 4 by NoNukes, posted 06-26-2015 7:10 PM NoNukes has replied

Replies to this message:
 Message 7 by NoNukes, posted 06-27-2015 8:40 AM Percy has seen this message but not replied
 Message 9 by marc9000, posted 06-28-2015 7:22 PM Percy has replied

  
Percy
Member
Posts: 22679
From: New Hampshire
Joined: 12-23-2000
Member Rating: 3.8


Message 10 of 108 (761155)
06-28-2015 9:24 PM
Reply to: Message 9 by marc9000
06-28-2015 7:22 PM


marc9000 writes:
You mean the other Justices have done the same thing as Scalia, chosing their interpretive scheme to fit their desired ends? It would be interesting to see examples of this.
Here is a book FULL of examples.
http://www.amazon.com/...me-Destroying-America/dp/1596980095
From the Forum Guidelines:
  1. Bare links with no supporting discussion should be avoided. Make the argument in your own words and use links as supporting references.
--Percy

This message is a reply to:
 Message 9 by marc9000, posted 06-28-2015 7:22 PM marc9000 has replied

Replies to this message:
 Message 11 by Theodoric, posted 06-28-2015 9:56 PM Percy has seen this message but not replied
 Message 12 by marc9000, posted 06-29-2015 9:10 PM Percy has replied

  
Percy
Member
Posts: 22679
From: New Hampshire
Joined: 12-23-2000
Member Rating: 3.8


Message 13 of 108 (761266)
06-30-2015 7:55 AM
Reply to: Message 12 by marc9000
06-29-2015 9:10 PM


marc9000 writes:
Oh okay, I can do that. I was just following the example set in the O/P, it was little more than a link & c/p.
My opening post contained links for references and short precisely relevant excerpts, and I made the point in my own words, which I quote here:
Percy in Message 1 writes:
So it seems that if Justice Scalia agrees with the words then they must be interpreted precisely literally, and if he disagrees then they must be interpreted in context. What a scoundrel he is, and a blatant one at that.
Your post, on the other hand, could be paraphrased as, "This link says the liberals on the court are just as bad."
--Percy

This message is a reply to:
 Message 12 by marc9000, posted 06-29-2015 9:10 PM marc9000 has replied

Replies to this message:
 Message 16 by marc9000, posted 06-30-2015 7:28 PM Percy has replied

  
Percy
Member
Posts: 22679
From: New Hampshire
Joined: 12-23-2000
Member Rating: 3.8


Message 15 of 108 (761276)
06-30-2015 10:16 AM
Reply to: Message 14 by Theodoric
06-30-2015 8:15 AM


I can only guess that Marc was trying to argue that Ginsberg was contradictory in arguing both for and against referencing laws or decisions of other nations in Supreme Court decisions, but the speech excerpts Mark chose don't support that interpretation, and the contention isn't comparable to Scalia's scurrilous behavior anyway.
I don't know that there's any effective way to have a discussion with a free-association style.
--Percy

This message is a reply to:
 Message 14 by Theodoric, posted 06-30-2015 8:15 AM Theodoric has not replied

  
Percy
Member
Posts: 22679
From: New Hampshire
Joined: 12-23-2000
Member Rating: 3.8


Message 17 of 108 (761401)
07-01-2015 8:19 AM
Reply to: Message 16 by marc9000
06-30-2015 7:28 PM


Hi Marc,
You seem to be making up your own topic, so I'll leave you to it. What I said and meant is contained in Message 1, and if you respond to things I actually said in a manner I can make sense of then I'll respond.
--Percy

This message is a reply to:
 Message 16 by marc9000, posted 06-30-2015 7:28 PM marc9000 has seen this message but not replied

  
Percy
Member
Posts: 22679
From: New Hampshire
Joined: 12-23-2000
Member Rating: 3.8


Message 19 of 108 (762917)
07-17-2015 9:39 PM
Reply to: Message 18 by Archangel
07-17-2015 9:20 PM


Archangel writes:
Nuff said on this issue.
Other than stating your opinion, you didn't say anything that addressed the contradictory behavior of Scalia described in the text you quoted.
The forum makes codes available for quoting, see dBCode Help.
--Percy

This message is a reply to:
 Message 18 by Archangel, posted 07-17-2015 9:20 PM Archangel has not replied

  
Percy
Member
Posts: 22679
From: New Hampshire
Joined: 12-23-2000
Member Rating: 3.8


Message 104 of 108 (763107)
07-21-2015 6:52 AM
Reply to: Message 102 by NoNukes
07-21-2015 12:04 AM


AbE: It occurs to me later that I missed that there's probably a clear distinction between "overall statutory scheme" and "legislative intent". The former only deals with what a bill says, while the latter includes not just the bill but also the prior legislative process and debate. I leave what follows unchanged, but what it should have said is that I think ignoring legislative intent is highly questionable, but it doesn't make Scalia an idiot. But taking the "overall statutory
scheme" into account for bills he likes and not for other bills he doesn't like does make him a scoundrel.
NoNukes writes:
In defense of Scalia, I will suggest here that he probably had no intention of opining on what Congress intended. I spent some time this afternoon looking at Scalia's writing on the topic, and it is pretty clear that Scalia is completely disdainful of the use of legislative intent. He has been consistently dubious about using it. In fact, he sometimes takes the trouble of castigating his colleagues for referring to the legislative history even when he agrees with the Court's decision. Given Scalia's position on legislative intent, it was inevitable that he reach the conclusion he reached.
When I introduced this thread in Message 1 I quoted Scalia quoting another case that said it must be kept in mind the "fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme."
I interpreted "overall statutory scheme" as the overall legislative intent of a bill, and I figured it referred to how to address a very common situation arising when a bill is redrafted, that not every passage that needs to be changed (say, after debate strikes a compromise) is changed or changed properly, which made it seem that Scalia had argued that legislative intent was important, especially given how often the wording of bills must be ambiguous, contradictory or in some way flawed. What's more, that seems the only reasonable position, because people aren't perfect and never will be perfect, and these bills can be massive. HR 3590 is 974 pages (see this PDF of the Affordable Care Act - the portion recently before the Supreme Court is on page 110).
What's more, since there were no federal exchanges in the original version of the bill, only state exchanges, having places in the bill that were missed or improperly updated when later revisions were made is precisely the kind of error one would expect.
If Scalia's legal philosophy ignores legislative intent then he's less a scoundrel and more an idiot.
--Percy
Edited by Percy, : AbE.

This message is a reply to:
 Message 102 by NoNukes, posted 07-21-2015 12:04 AM NoNukes has replied

Replies to this message:
 Message 106 by NoNukes, posted 07-21-2015 4:05 PM Percy has seen this message but not replied

  
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