Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Wednesday, May 05, 2010

Free Speech

This Onion article is patently ridiculous.

Justice Clarence Thomas, who voted with the majority, wrote a concurring opinion in which he made little mention of established court precedents but emphasized that he himself had viewed materials "way, way nastier than this stupid play."


Writing in dissent, however, Justice Antonin Scalia contemplated the limits of the constitutional guarantee of free speech.

"The court has an interest in protecting meaningful human communication, which is jeopardized when every other word out of someone's mouth is 'F this' or 'F that,'" Scalia wrote. "In practice, such an expansion of free expression becomes far too unwieldy and large to accommodate."

To which Justice Ginsberg [sic] immediately replied, "Yeah, that's what his mom said."
Are you really suggesting that there's an issue for which Scalia and Thomas would not both vote the same way? Ludicrous.


The Law Talking Guy said...

Yes, actually. Try Hamdi v. Rumsfeld. Scalia (joined by Stevens) wrote a dissent from the screwy plurality opinion (O'Connor) on what most of us would call the "left" - where Scalia writes " The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive." Thomas, by contrast, went far to the right and argued that the Court had no business questioning the executive. "The Executive’s decision that a detention is necessary to protect the public need not and should not be subjected to judicial second-guessing."

There are a few others where Scalia has urged defense of juries and Thomas has done his usual "the executive is always right if he's a republican" routine.

The Law Talking Guy said...

Ah yes, Booker, Blakeley, and Apprendi, how could I forget. In Apprendi, the Court announced (with Scalia) that only a jury finding could cause a sentence enhancement - not a finding by the judge alone. This created havoc. In Booker the next year, the court walked back from this precipice a bit. The Booker opinion was such a phenomenal mess that nobody knows how to count to five. "STEVENS, J., delivered the opinion of the Court in part, in which
SCALIA, SOUTER, THOMAS, and GINSBURG, JJ., joined. BREYER, J., delivered
the opinion of the Court in part, in which REHNQUIST, C. J., and
O’CONNOR, KENNEDY, and GINSBURG, JJ., joined. STEVENS, J., filed an
opinion dissenting in part, in which SOUTER, J., joined, and in which
SCALIA, J., joined except for Part III and footnote 17. SCALIA, J., and
THOMAS, J., filed opinions dissenting in part. BREYER, J., filed an opinion
dissenting in part, in which REHNQUIST, C. J., and O’CONNOR and
KENNEDY, JJ., joined."

Thomas and Scalia were aligned in votes, but not in reasoning here.

Raised By Republicans said...

I know this isn't the point so apologies for going off topic but...Scalia thinks that separation of powers is an "Anglo-Saxon" invention? That's news the Brits who have the most centralized democracy on Earth. What a racist thing to say.

The Law Talking Guy said...

Not sure Scalia was being racist, using "Anglo-Saxon" to mean "derived from England." But of course, as you point out, he's kind of wrong about it. Although Scalia is not as wrong as you might think in historical context. The British constitutional system of the 1600s and 1700s was less centralized than today because there was an active executive (the monarch) and a more independent judiciary (the Lords). The writ of habeas corpus owes its origin to this time of contest between the commons and the crown. So Scalia is correct in the sense that the American system of government, inherited from the English in the 1600s and 1700s, reflected and improved upon an inchoate separation of powers that already existed. It is ironically the democratization of the UK government that has caused its centralization. The executive (monarch) and judiciary (Lords) were simply marginalized, with all power to the commons. Now, it remains to be seen if the new Supreme Court will help.

A final comment is that there is some truth to the suggestion that Anglo-American jurisprudence has always given more independence and power to judges than Continental jurisprudence, which may be what Scalia was aiming at.

So what I'm suggesting is that Scalia is not wrong if he meant to distinguish the Anglo-american system from the Continental system particularly as it relates to the historical use of habeas corpus to check the executive. But he's nuts if he thinks that this has anything to do with pre-Tudor England or - as you correctly note he may be thinking - some kind of race-memory of English people.

I'm not sure that Antonin Scalia, the Catholic Italian, is necessarily "racist" in believing that it is English blood (rather than English culture) that he thinks created separation of powers.

A final comment: see why Scalia's "originalism" is so crummy and ideological? It relies on bad history.