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Author Topic:   Scalia is a Scoundrel
Percy
Member
Posts: 22614
From: New Hampshire
Joined: 12-23-2000
Member Rating: 4.5


(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

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nwr
Member
Posts: 6421
From: Geneva, Illinois
Joined: 08-08-2005
Member Rating: 4.1


(2)
Message 2 of 108 (760909)
06-26-2015 1:11 PM
Reply to: Message 1 by Percy
06-26-2015 12:19 PM


Scalia is a politician, pretending to be a jurist.

Fundamentalism - the anti-American, anti-Christian branch of American Christianity

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Diomedes
Member
Posts: 996
From: Central Florida, USA
Joined: 09-13-2013


(1)
Message 3 of 108 (760922)
06-26-2015 2:07 PM
Reply to: Message 2 by nwr
06-26-2015 1:11 PM


Scalia is a politician, pretending to be a jurist
I actually just think he is a right-wing religious wacko masquerading as a jurist.
Read his dissenting opinion on the gay marriage ruling. He is basically saying that the constitution is being violated by not allowing the states to allow their voters to use mob rule to get what they want. Da FUQ??!!

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NoNukes
Inactive Member


Message 4 of 108 (760967)
06-26-2015 7:10 PM
Reply to: Message 1 by Percy
06-26-2015 12:19 PM


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.
In this case, however, I think common sense prevailed. There is absolutely no indication in the statute or the legislative history that Congress intended any distinction state exchanges and the federal ones installed on behalf of the states.
From the majority opinion.
quote:
And rigorous application of that canon does not seem a particularly useful guide to a fair construction of the Affordable Care Act, which contains more than a few examples of inartful drafting."
Yes, and the Supreme Court can clean that up in an appropriate case. I wonder what the GOP would have been forced to do if the Supreme Court had ruled oppositely. It is in republican states that are contained the most people who would lose all health coverage because the feds had to step in and set up exchanges.

Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846)
History will have to record that the greatest tragedy of this period of social transition was not the strident clamor of the bad people, but the appalling silence of the good people. Martin Luther King
If there are no stupid questions, then what kind of questions do stupid people ask? Do they get smart just in time to ask questions? Scott Adams

This message is a reply to:
 Message 1 by Percy, posted 06-26-2015 12:19 PM Percy has replied

Replies to this message:
 Message 5 by Percy, posted 06-27-2015 7:53 AM NoNukes has replied

  
Percy
Member
Posts: 22614
From: New Hampshire
Joined: 12-23-2000
Member Rating: 4.5


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

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MrHambre
Member (Idle past 1477 days)
Posts: 1495
From: Framingham, MA, USA
Joined: 06-23-2003


(3)
Message 6 of 108 (761013)
06-27-2015 8:24 AM
Reply to: Message 3 by Diomedes
06-26-2015 2:07 PM


I actually just think he is a right-wing religious wacko masquerading as a jurist.
Correction: he's a toad masquerading as a jurist. This could go on all day.
Scalia has always disgusted me just on his personality alone. It's common knowledge that he's a pushy, overbearing asshole who browbeats counsels and even other justices. But the dissent that he wrote on the marriage-equality case was a new low. It was full of ridicule and condescension toward his colleagues:
quote:
"If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: 'The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,' I would hide my head in a bag."
I'm not a legal scholar or a Court historian, but I thought it lacked any sort of fair-mindedness or professionalism. The fact that he reserves this sort of immature rancor for a judgment about marriage equality just shows what a vile human being he is.

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NoNukes
Inactive Member


Message 7 of 108 (761014)
06-27-2015 8:40 AM
Reply to: Message 5 by Percy
06-27-2015 7:53 AM


You mean the other Justices have done the same thing as Scalia, chosing their interpretive scheme to fit their desired ends?
At law school one of my professors told me that such thinking was the height of cynicism.
There are varied schemes for deciding cases. In this case, the issues were not constitutional but were matters of statutory construction. The rules of statutory interpretation are well known and are applied at all levels of trial and appeal. However the rules produce contradictory results.
Here is a list that is pretty consistent with what I was taught.
Statutory Construction | Wex | US Law | LII / Legal Information Institute
quote:
Any question of statutory interpretation begins with looking at the plain language of the statute to discover its original intent. To discover a statute's original intent, courts first look to the words of the statute and apply their usual and ordinary meanings.
If after looking at the language of the statute the meaning of the statute remains unclear, courts attempt to ascertain the intent of the legislature by looking at legislative history and other sources. Courts generally steer clear of any interpretation that would create an absurd result which the Legislature did not intend.
Other rules of statutory interpretation include, but are not limited to:
Statutes should be internally consistent. A particular section of the statute should not be inconsistent with the rest of the statute.
When the legislature enumerates an exception to a rule, one can infer that there are no other exceptions.
When the legislature includes limiting language in an earlier version of a statute, but deletes it prior to enactment of the statute, it can be presumed that the limitation was not intended by the legislature.
The legislature is presumed to act intentionally and purposely when it includes language in one section but omits it in another.
Where legislation and case law conflict, courts generally presume that legislation takes precedence over case law.
The Rule of Lenity: in construing an ambiguous criminal statute, a court should resolve the ambiguity in favor of the defendant.
A court may also look at: the common usage of a word, case law, dictionaries, parallel reasoning, punctuation
Use of the plain language gets Scalia the result he wants, and as long as he does not look at too much language, no lack of clarity is evident. Plain language is the first of the rules, but none of the rules are inviolate.
I cannot say that Scalia chose his interpretive scheme to fit a desired end. But what I can say is that Justices are the very definition of competent, and every word of whatever opinion a Justice signs signs is going to be justified by an application of a well recognized and accepted interpretive scheme. It may or may not be the case that a Justice's actual reasoning in coming up with the answer is mapped out in the opinion. Scalia is a right wing nutcase and his rulings are going to be those of a right wing nutcase. Thomas appears to have a chip on his shoulder about not being taken seriously as a right winger. Small wonder either of these guys would not vote for ACA.
The lawyer who identified the problem with the wording in the statue was fully aware that the law was simply badly drafted and that there was no intent to distinguish between federally established and state established exchanges. The 6 Justice majority properly recognized that the error was inconsistent with other portions of the statute.

Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846)
History will have to record that the greatest tragedy of this period of social transition was not the strident clamor of the bad people, but the appalling silence of the good people. Martin Luther King
If there are no stupid questions, then what kind of questions do stupid people ask? Do they get smart just in time to ask questions? Scott Adams

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NoNukes
Inactive Member


Message 8 of 108 (761040)
06-27-2015 11:44 AM
Reply to: Message 6 by MrHambre
06-27-2015 8:24 AM


The fact that he reserves this sort of immature rancor for a judgment about marriage equality just shows what a vile human being he is.
As you've noted, Scalia does frequently find occasion to berate his colleagues. Yes, it is immature, but he has done it often enough that we cannot really say he has reserved anything.
But, yes, a decent human being might well have curbed his tongue here. I'm reminded of the situation in Brown v. Board of education which despite being controversial ended up being a unanimous decision because the Chief Justice worked his colleagues to get language they could buy into once it was clear what the majority would be.
Trying to do that with this court would be like trying to herd cats, and I suspect that Justice Roberts knows better than to try it anymore. Justice Roberts writes his own dissent because he simply cannot sign onto the opinions that Scalia or Thomas wrote wrote. Alito also writes his own opinion. Only Thomas signs Scalia's crap. Thomas and Scalia each sign onto all of the dissenting opinions.
Edited by NoNukes, : No reason given.

Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846)
History will have to record that the greatest tragedy of this period of social transition was not the strident clamor of the bad people, but the appalling silence of the good people. Martin Luther King
If there are no stupid questions, then what kind of questions do stupid people ask? Do they get smart just in time to ask questions? Scott Adams

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 Message 6 by MrHambre, posted 06-27-2015 8:24 AM MrHambre has not replied

  
marc9000
Member
Posts: 1522
From: Ky U.S.
Joined: 12-25-2009


Message 9 of 108 (761145)
06-28-2015 7:22 PM
Reply to: Message 5 by Percy
06-27-2015 7:53 AM


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
Can you name a liberal, long standing member of the supreme court, past or present, that you think is not a scoundrel? If so, name him or her, and I'll see what I can find.

This message is a reply to:
 Message 5 by Percy, posted 06-27-2015 7:53 AM Percy has replied

Replies to this message:
 Message 10 by Percy, posted 06-28-2015 9:24 PM marc9000 has replied

  
Percy
Member
Posts: 22614
From: New Hampshire
Joined: 12-23-2000
Member Rating: 4.5


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:
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Theodoric
Member
Posts: 9280
From: Northwest, WI, USA
Joined: 08-15-2005
Member Rating: 2.3


Message 11 of 108 (761160)
06-28-2015 9:56 PM
Reply to: Message 10 by Percy
06-28-2015 9:24 PM


From looking at reviews it doesn't look like the book actually has anything of substance anyway.

Facts don't lie or have an agenda. Facts are just facts
"God did it" is not an argument. It is an excuse for intellectual laziness.

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marc9000
Member
Posts: 1522
From: Ky U.S.
Joined: 12-25-2009


Message 12 of 108 (761252)
06-29-2015 9:10 PM
Reply to: Message 10 by Percy
06-28-2015 9:24 PM


From the Forum Guidelines:
Bare links with no supporting discussion should be avoided. Make the argument in your own words and use links as supporting references.
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.
I'd like to see you elaborate, (in your own words) just what you think Scalia did. You seemed to indicate a major distinction between "precisely literally" and "context". Context is defined as the "weaving together of words". Is there a really huge difference in what he did from one year to the next? Could he say that he got one year older and one year wiser, and adjusted his decision making process somewhat? Is that a crime?
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.
Nowhere in the constitution is Supreme Court expressly given the authority to interject itself, or foreign governments into federal and state operations. Let's look at a few quotes from some other than Scalia;
Thorgood Marshall, when asked about his judicial philosophy;
quote:
"You do what you think is right and let the law catch up."
A scoundrel? Ruth Bader Ginsburg, in a speech,
quote:
"The U.S. Supreme Court has mentioned the Universal Declaration of Human Rights a spare five times and only twice in a majority decision....nor does the U.S. Supreme Court note the laws or decisions of other nations with any frequency.
Maybe because it's not their job to do that Ruth, unless they're searching to do something they're not authorized to do. She continues;
quote:
"When Justice Breyer referred in 1997 to federal systems in Europe, dissenting from a decision in which I also dissented, the majority responded: We think such comparative analysis inappropriate to the task of interpreting the constitution."
WOW what scoundrels, they actually understand what their job is, kind of like Scalia still does even today!!! She continues:
quote:
" In my view, comparative analysis emphatically is relevant to the task of interpreting constitutions and enforcing human rights. We are losers if we neglect what others can tell us about endeavors to eradicate bias against women, minorities and other disadvantaged groups."
We are losers if we neglect what others can tell CONGRESS, THE SENATE, OR THE PRESIDENT about these endeavors, but not the judiciary.
Is Scalia a scoundrel, just because he's conservative? It's strange to me how the NY times (and you) pick this exact time to hammer on Scalia. The extreme left just scored a huge victory with the gay marriage thing. The left is pretty masterful with the gloat and taunt thing, but I suspect the negative attention towards Scalia is a fear of his concise, common sense comments on these activist Supreme Court decisions. They resonate with a LOT of people, some of them are people whose support and votes the Democrats don't want to lose.
Do you need any more examples of Supreme Court justices chosing their interpretive scheme to fit their desired ends?

This message is a reply to:
 Message 10 by Percy, posted 06-28-2015 9:24 PM Percy has replied

Replies to this message:
 Message 13 by Percy, posted 06-30-2015 7:55 AM marc9000 has replied
 Message 14 by Theodoric, posted 06-30-2015 8:15 AM marc9000 has not replied

  
Percy
Member
Posts: 22614
From: New Hampshire
Joined: 12-23-2000
Member Rating: 4.5


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

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Theodoric
Member
Posts: 9280
From: Northwest, WI, USA
Joined: 08-15-2005
Member Rating: 2.3


Message 14 of 108 (761267)
06-30-2015 8:15 AM
Reply to: Message 12 by marc9000
06-29-2015 9:10 PM


Did you read Percy's original post?
Judging from the argument you make in this post you did not.
OH, are you going with the old Straw man?
Do you need any more examples of Supreme Court justices chosing their interpretive scheme to fit their desired ends?
Seems to be what you are posting about , but this is not at all what Percy argued in the OP.
Percy 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.
Is a totally different argument. Do you want to rebut that or just throw up more straw men?

Facts don't lie or have an agenda. Facts are just facts
"God did it" is not an argument. It is an excuse for intellectual laziness.

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Percy
Member
Posts: 22614
From: New Hampshire
Joined: 12-23-2000
Member Rating: 4.5


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

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