Antonin Scalia says, "...it would be absurd to say you couldn't, I don't know, stick something under the fingernail, smack him in the face."

"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.

good to know one of our Supreme Court justices gets his ideas about one of the major legal questions of our day from television dramas

Justice > law, you fucking retarded troglodyte.

this guy is a fuckin monster

Amendment VIII to the Constitution of the United States of America reads

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

I know this because I'm reading from the copy of the Constitution that JUSTICE ANTONIN SCALIA GAVE ME.

Fat, self-righteous, jowly, pompous asshole. FUCK that guy.

eric h.'s post is an insult to bacon everywhere

What an asshole. I really am so very fucking angry about so much of that interview.

one of ethan's classix, from a scalia-oriented thread from long ago:

the differences between scalia and rapper vinnie paz are less & less every day

-- +++, Thursday, March 30, 2006 11:33 AM (1 year ago) Bookmark Link

Jeezis, that's totally fucking crazy. He has to be one of the most reprehensible, disgusting, pig-fucking ignorant shitheads ever to serve on the Supreme Court. Doesn't make me ashamed for my country, makes me FURIOUS that bastards like him represent and lead it.

Goddam. I need a beer or something. Shit.

i'm mostly surprised at how simple-minded he seems

Right-wingnuts like Scalia 1. for his philosophy, but 2. mostly for the fact that he drives lefties crazy.

Whoa embarrassment re chief justice

I just read about a case that involved Robert Novak, Kenneth Starr, Robert Bork, and Scalia. It was like the Million Dollar Quartet of douches.

Scalia has recently been quoted as saying that "My kids have been working on me to get out and do more public appearances...They think it makes it harder to demonize you—and I agree."

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

he would probably argue that torture is not "punishment" because you haven't actually been convicted yet.

ughhhhhhhhhhhh

As others have noted, 21st-C Federalist Society/Dubya-style conservatism is more pathology than ideology or philosophya(or even theology, for that matter)

There's a whole field of discourse about what constitutes 'cruel and unusual' obviously, this has been one of the Bush admin's big gambits - really insulting word games ('is it unusual if it's been done a whole lot of times? doesn't cruelty have to be senseless?')

still mainly Scalia is trolling, he's really good at it and it wouldn't surprise me to learn that he times this kind of thing as a diversionary tactic (/tinfoil hat, but I can never fully / the tinfoil hat with this admin)

Scalia's a complicated guy. He sided without reservation with the "liberal" side of the Court in 1989 against making flag-burning unconstitutional, and there's some precedent for his contempt for the law as written. Edmund Wilson on Oliver Wendell Holmes: "It was impossible for an honest man of Holmes' probing intelligence to pretend that the law was a sacred code, which had simply to be read correcty."

btw the history of "simple-minded" men becoming associate justices on our Supreme Court is vast and unsurprising -- most of them ARE hacks. Scalia at least writes entertaining opinions.

he can write really well, which makes him seem appealing if good writing is an opiate to you like it is to me, but on balance he seems immune to arguments about human beings having dignity - complex maybe, but a bad apple

It was an opiate when I was younger. But Orwell's right: sooner or later the writing will reveal its author's chicanery and dissembling.

btw I'd rather have a Scalia on the Court -- an articulate defender of a certain kind of conservatism -- than a Harriet Meiers, who WAS a hack.

FWIW, he actually dissented from the opinion in the case I was reading, and ended up opposing the other three million dollar douches.

Whoa embarrassment re chief justice

As pointed out, Scalia is an associate justice. John Roberts is the Chief Justice.

Where I went to school, Scalia opinions caused the "Turn that shit up!!That's my JAM!" type reaction from my classmates - a conservative law school in DC. They were all very aware of what Jowls McEgo represented - a talented legal mind and writer who had a TON of chutzpah on the bench, and was a conservative with an attitude to boot.

I wish I had paid more attention to who was writing the opinions so that I might go and find a few choice quotes from him. He's really very good, and quite persuasive - but a total douche if you actually look at what he's saying.

For what its worth, one of my professors who clerked for another justice said that Scalia was a pretty entertaining guy to have contact with, and that his clerks, liberal and conservative, all got along with him very, very well.

His best friend – and tennis partner – on the Court is Ruth Bader Ginsberg.

let's interrogate Scally

I guess I appreciate the fact that he at least says "I don't know" about some questions. But the "bomb under LA" scenario really sticks in my craw. It's a little like saying "If there was a full-scale alien invasion of the earth, you'd probably support removing some checks and balances and giving the president greater power. But where do you draw the line?"

Ruth Ginsberg still plays tennis? Way to go older person.

so does Stevens!

Back to the Scalia surprise file. Remember Hamdi vs Rumsfeld:

ustice Antonin Scalia's dissent, joined by Justice John Paul Stevens, went the furthest in restricting the Executive power of detention. Scalia asserted that based on historical precedent, the government had only two options to detain Hamdi: either Congress must suspend the right to habeas corpus (a power provided for under the Constitution only in times of "invasion" or "rebellion"), which hadn't happened; or Hamdi must be tried under normal criminal law. Scalia wrote that the plurality, though well meaning, had no basis in law for trying to establish new procedures that would be applicable in a challenge to Hamdi's detention—it was only the job of the Court to declare it unconstitutional and order his release or proper arrest, rather than to invent an acceptable process for detention.

ginsberg and scalia on an elephant:

http://www.oyez.org/tour/rbg-room/rbg_elephant/elephant.jpg

to find out where he has hidden the bomb that is about to blow up Los Angeles

to find out where he has hidden the bomb that is about to blow up Los Angeles
to find out where he has hidden the bomb that is about to blow up Los Angeles
to find out where he has hidden the bomb that is about to blow up Los Angeles
to find out where he has hidden the bomb that is about to blow up Los Angeles
to find out where he has hidden the bomb that is about to blow up Los Angeles
to find out where he has hidden the bomb that is about to blow up Los Angeles
to find out where he has hidden the bomb that is about to blow up Los Angeles
to find out where he has hidden the bomb that is about to blow up Los Angeles

to find out where the bandits are hiding pore sally jones

He sided without reservation with the "liberal" side of the Court in 1989 against making flag-burning unconstitutional, and there's some precedent for his contempt for the law as written.

isn't this because he's basically a libertarian? also this is pretty funny:

He noted that in 1989 he voted to strike down the conviction of a man who had burned the American flag, on the ground that the First Amendment protected such symbolic acts. "Scalia did not like to vote that way," he said, slipping into the third person, as he often does during comic riffs. "He does not like sandal-wearing bearded weirdos who go around burning flags. He is a very conservative fellow." Although originalists are not supposed to care about the outcome, an originalist's wife, evidently, might sometimes consider this a crock. Scalia went on, "I came down to breakfast the next morning, and my wife--she's a very conservative woman--she was scrambling eggs and humming 'It's a Grand Old Flag.' That's a true story. I don't need that! A living-Constitution judge never has to suffer that way."

I like the idea of all these elderly judges playing tennis together (and having just looked her up I see that Ginsberg isn't quite as old as I thought she was - 74 though - pretty spry!) but it worries me too. The liberal ones should be taking it easy, can't afford to lose any more.

and yeah i think he's pretty funny, and i'm glad he rides elephants and plays tennis and all, but i wish he wouldn't say dumb shit like this

he would probably argue that torture is not "punishment" because you haven't actually been convicted yet.

ughhhhhhhhhhhh

-- tehresa, Wednesday, 13 February 2008 06:54 (7 hours ago) Link

This is precisely what he said.

Am I the only one that actually heard the whole interview? It was on NPR yesterday.

how likely is it that authorities will know with certainty that there is a bomb about to blow up los angeles but not know where it is??

i know, it's a hard question to answer because such a thing has NEVER EVEN REMOTELY HAPPENED

You mean 24 is a lie? ;_;

yeah i think context is key here, from the ABC blog:

But in the interview, it's Scalia who seems to be taking folks to task--venting about people who make quick moral judgments about torture without considering the hard hypotheticals. The choice made, he suggested to the BBC reporter, depends on the circumstances. As he said in Canada last year, if law enforcement knows a terrorist has a nuclear bomb and is going to blow up LA, the American people would find that a pretty clear case. You can hear the full interview here.

"Seems to me you have to say, as unlikely as that is, it would be absurd to say that you can't stick something under the fingernails, smack them in the face. It would be absurd to say that you couldn't do that. And once you acknowledge that, we're into a different game," he told the BBC interviewer. "How close does the threat have to be, and how severe can an infliction of pain be?"

He then explains what a tough call that would be.

"There are no easy answers involved, in either direction, but I certainly know you can't come in smugly and with great satisfaction and say, 'Oh, this is torture, and therefore it's no good,'" he said. "You would not apply that in some real-life situations. It may not be a ticking bomb in Los Angeles, but it may be, 'Where is the group that we know is plotting this painful action against the United States? Where are they? What are they currently planning?'"

i know, it's a hard question to answer because such a thing has NEVER EVEN REMOTELY HAPPENED

The terrorists have lulled you to sleep with the six and a half years of relative peace in this country. Good thing we have tennis playing, jowly, bulldog looking Supreme Court justices who are still paying attention.

Apparently, there is a basketball court directly above the actual courtroom that the clerks play on all the time. Obv, not while court is in session.

why does scalia and every other neo-tard put violent POLITICAL crime in this separate, special category??

Obv, not while court is in session.

What fun is that!

Every pithy and erudite comment about never really knowing what someone else is thinking and how some of your closest friends probably have opinions you would find reprehensible is being drowned underneath a massive "wau cock" reaction to this story.

boo freakin hoo

Surely I'm not the only person dying to know what opinions of Ned's that Dan finds reprehensible.

Well, there's the whole kittenshoes thing.

kittenshoes is torture

http://www.musikmarkt-wiesbaden.de/images/JACKSONS%20torture%20LP.JPG

whoa i remember that sleeve! very duran duran

J, that is actually the point I am making when I say "use arguments that work, plz".

Yeah, the logic is elementary, and the "imminent doom" scenario is laughable. As an examination of the ideas involved, what Scalia's saying isn't interesting, and I don't think most folks were taking it seriously in that sense. To me, it IS interesting that this lazy crap was presented by a Supreme Court Justice to an audience of BBC listeners.

^^^This

And the fact that this lazy crap is being slung by all sorts of public officials and is a surprisingly common thing to hear. It IS treated seriously, and that is, to me, noteworthy.

Xpost, sorry Dan I'm dense!

Though he's not explicit about it, I think it's clear that when push comes to shove, he's talking about enemy combatants - see his closing statement quoted earlier. He's only couching things in terms of the 8th amendment 'cuz that's how the interviewer framed the question.

Bush admin has made it clear that they don't intend to be restrained by international treaties on this matter, and given that citizens linked to terrorism/terrorists may be treated as enemy combatants, I don't think that constitutionality is a primary concern here.

“Where is this group that we know is plotting this painful action against the United States? Where are they? What are they currently planning?”

I'll see your Mohammed Atta, and raise you a Terry Nichols. The only way to read Scalia's statement as a clear indication he's talking about only about noncitizens is to presume that he is. Which, I grant you, might be a fair presumption because he's a douchebag. Moreover, the Due Process Clauses specifically apply to all persons, which is why I only mentioned citizens in relation to the Privileges and Immunities Clause.

given that citizens linked to terrorism/terrorists may be treated as enemy combatants

I don't think that's really a fair reading of Hamdi. Eight of the nine justices of the Court agreed that the Executive Branch does not have the power to hold indefinitely a U.S. citizen without basic due process protections enforceable through judicial review. It follows that citizen detainees are entitled to certain basic protections that noncitizen detainees are not entitled to. Plus, there's the whole Jose Padilla problem--can the U.S. label a citizen an enemy combatant when the citizen was arrested on native soil? The Bush Admin. chose to charge him criminally instead of allowing that question to be answered.

The only way to read Scalia's statement as a clear indication he's talking about only about noncitizens is to presume that he is.

-- J

Well, given that he's setting things in the "current" moment, I don't think it's a big leap to assume he's invoking our current (foreign) enemies.

As far as the Padilla thing goes (citizens arrested on US soil as ECs), yeah, it's an usettled issue. But you've gotta know they'll make that argument when/if necessary, 'cuz ECs are explicity excluded from due process guarantees.

True, but assuming that Scalia abides by the rationale of his Hamdi dissent, I wouldn't expect him to go along with it. Of course, it's Scalia, so I'm not sanguine about that.

(I should say, unless the Writ of Habeas Corpus is properly suspended as well)

Not sure about Scalia, but the viability of US citizens as ECs thing has had precedent since WWII: Ex parte Quirin. Indefinite detention w/o trial of any sort is another matter.

That's to say, if US citizens can be classed and tried by tribunal as ECs (and I think they can), why whould we imagine that they can't be tortured in the same manner?

" A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions." Hamdi v. Rumsfeld, 542 U.S 507 (Scalia, J., dissenting).

Check it: http://supct.law.cornell.edu/supct/html/03-6696.ZD.html

Touché

(that was an xpost, as is this)

I don't think Quirin supports that viewpoint. There's a substantial difference between treating "invading" German soldiers as enemy combatants and kidnapping some crazy Chicago gangbanger as he gets off a plane *in Chicago*. Hamdi is the case that said U.S. Citizens could be treated as unlawful combatants, but all of the majority opinions in that case seemed to recognize that Hamdi was entitled to *some* additional protection because of his status as a U.S. citizen arrested on foreign soil. If the Padilla case had gotten to the Court before they charged him criminally, we would have had the real test. But the Bush Administration blinked. And that should tell you something.

There was an American citizen involved w/ Quirin. At least, that's my understanding & recollection.

I agree, re: Padilla, but I think the issue is different there. That was more about indefinite detention w/o a trial of any sort. If they'd gotten him to and through a military tribunal, they might not have been forced into the position they were.

Sorta:

"All except petitioner Haupt are admittedly citizens of the German Reich, with which the United States is at war. Haupt came to this country with his parents when he was five years old; it is contended that he became a citizen of the United States by virtue of the naturalization of his parents during his minority, and that he has not since lost his citizenship. The Government, however, takes the position that, on attaining his majority he elected to maintain German allegiance and citizenship, or in any case that he has, by his conduct, renounced or abandoned his United States citizenship . . . For reasons presently to be stated we do not find it necessary to resolve these contentions." Ex Parte Quirin, 342 U.S. 1 (1942).

More from Quirin:

"Petitioners do not argue, and we do not consider, the question whether the President is compelled by the Articles of War to afford unlawful enemy belligerents a trial before subjecting them to disciplinary measures. . . . We need not inquire whether Congress may restrict the power of the Commander in Chief to deal with enemy belligerents. For the Court is unanimous in its conclusion that the Articles in question could not at any stage of the proceedings afford any basis for issuing the writ. . . . Accordingly, we conclude that Charge I, on which petitioners were detained for trial by the Military Commission, alleged an offense which the President is authorized to order tried by military commission; that his Order convening the Commission was a lawful order, and that the Commission was lawfully constituted; that the petitioners were held in lawful custody, and did not show cause for their discharge. It follows that the orders of the District Court should be affirmed, and that leave to file petitions for habeas corpus in this Court should be denied."

Quirin is weird, because of what the Court refused to do. It specifically refused to address the question of whether Congress had the authority to proscribe the President's authority w/r/t enemy combatants (a question largely answered in the affirmative in Hamdan, I believe). Most importantly, though, this is how Quirin gets around the citizen/noncitizen problem:

"Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and, with its aid, guidance and direction, enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague Convention and the law of war. Cf. Gates v. Goodloe, 101 U.S. 612, 615, 617-18. It is as an enemy belligerent that petitioner Haupt is charged with entering the United States, and unlawful belligerency is the gravamen of the offense of which he is accused."

Again, this is not analogous to Padilla's situation, in part because he wasn't part of an invading force, and in part because he wasn't acting as an agent of a foreign government in a time of war. The Bush Admin. has also argued that because Al Queda isn't a foreign government that the laws of war don't apply to any of their associates; you can sort of see where this leads.

God I made this thread all geeky

thank you

Again, this is not analogous to Padilla's situation, in part because he wasn't part of an invading force, and in part because he wasn't acting as an agent of a foreign government in a time of war. The Bush Admin. has also argued that because Al Queda isn't a foreign government that the laws of war don't apply to any of their associates; you can sort of see where this leads.

Forgive my denseness -- and my reluctance to wade through the legal thickets of Hamdan -- but did the Court in 2004 use the Bush administration's own logic against it?

er, I meant HAMDI

that's a great post J, and it seems to highlight the central legal strategy of the Bush administration which is "the usual rules don't apply" (but of course there are no other rules to substitute so we get to make them up as we go along yay!)

a great SET of posts, I should say

I don't think so . . . what do you mean, specifically?

Handy chart:

Hamdi - citizen, captured on foreign soil
Hamdan - noncitizen, captured on foreign soil
Padilla - citzen, captured in U.S.

Also important to your question (I think): Rasul v. Bush, which dealt with the question of whether Gitmo was a U.S. controlled area sufficient to allow foreign nationals to invoke U.S. federal jurisdiction to issue a writ of habeas corpus. Scalia dissented vehemently, arguing that Gitmo was not part of the U.S., that the petitioners were non citizens, and that therefore the habeas couldn't issue because U.S. courts had no jurisdiction.

Clear as mud, right?

(xpost, thanks!)

(Note that many of the questions we thought had been answered by Rasul are being heard again this term in Boumediene v. Bush -- god knows how that's going to turn out)

I don't think so . . . what do you mean, specifically?

This was directed at Alfred, btw.

I mean that in every one of these cases I see a pattern of attempting to create a kind of legal no-man's land

oh, ok nevermind

I mean that in every one of these cases I see a pattern of attempting to create a kind of legal no-man's land

Oh yeah, that's the whole point. That's why we have Gitmo--it's the one place in the world where no law applies. Scalia's Rasul dissent spends a lot of time talking about "sovereignty," and at the oral arguments in Boumediene he got really annoying on the subject, but the bottom line w/r/t that issue is that if U.S. law doesn't even in a limited way there, then everything that the Bush Admin. does there is fine. I mean, is Castro gonna stop 'em? During the Boumediene oral argument there was all this discussion of the lease between the U.S. and Cuba relating to Gitmo . . . to the average listener, it was pretty surreal.

It's noteworthy that they didn't try to take Padilla to Gitmo. It's also noteworthy that once the Bush Administration discovered that Hamdi was a citizen, they whisked him out of Gitmo and put him in a military prison in Virginia. At a result, Scalia had no problem at all with Hamdi's habeas petition, even though he was captured on foreign soil.

and the admin also tends to favor people who are skeptical of the very idea of "international law," no?

anthony kennedy believes in the idea of international law, and it was his vote that but the 5 in the 5-4 Bush Gore decision. you could go around and around and around with this shit but why get worked up about it? yes, bush and addington and cheney are making up the laws about terror as they go; what about this surprises you?

anthony kennedy believes in the idea of international law, and it was his vote that but the 5 in the 5-4 Bush Gore decision.

not sure what the connection is between part one of this sentence and part two

kennedy is part of the admin--helped usher in the admin. i'm sure there are plenty of people in the admin who look to international law. so what?

"what about this surprises you?" is the most common response to anything said about the Bush administration on any thread on this board. The point isn't whether it's "surprising." Obviously nothing is "surprising" by now Incidentally, sometimes I feel like ILX is primarily an original opinions contest, which isn't really the most useful means of discussing an issue -- not that I'm particularly blaming you for this Que.

I'm not saying "No one in this administration believes in international law." And since Kennedy OBVIOUSLY was not a Bush appointee, I don't see what you're getting at.

What I'm trying to say is that on the one hand the administration often takes a legal strategy of placing things outside the context of U.S. law, and that on the other hand it tends to put international law in ironic quotes, thus creating the no-mans land I'm talking about.

kennedy is part of the admin--helped usher in the admin

also sorry to chain-post but this is just silly

they're not putting int'l in ironic quotes. they're mostly ignoring it. those are two separate concepts.

there are probably a few people in the admin who give a shit about int'l law. that's all i'm saying.

kennedy is a firm believer in international law. it's pretty much him who we can thank for getting us into this mess in the first place. that's all i was saying and i realize it's an overreach.

that's all i was saying and i realize it's an overreach.

LOL this should be on the ILX Crest of Arms^^

WHO cares if the Guantamano Six were tortured?

Not me, that’s for sure, but you would have thought that the world had ended the way some of the Press reported the fact that, at long last, those accused of being the masterminds behind 9/11 were going to be tried.

They talked about kangaroo courts and acted as if these six were only on trial for shoplifting, not the cold-blooded murder of 3,000 innocents.

When will the ruling liberal elite realise we are at war with an enemy that isn’t fighting by the Queensberry rules and certainly doesn’t respect the Geneva Convention.

I wish the Yanks hadn’t used waterboarding to get the confessions but, I’m sorry, these are extraordinary times and they demand extraordinary methods.

If the liberals want to talk about the horrors of torture they should listen to the answerphone messages of the passengers on the planes as they careered into the World Trade Center, or remember the pictures of people who chose to jump rather than be burned alive. That was torture. That was pain. That was injustice.

This isn’t a game, this is war.

These madmen don’t give a warning when they are going to fly planes into buildings. The nutters of 7/7 didn’t phone the police before they pulled the strings on their rucksacks and now is not the time for social niceties and manners. Now is the time to fight fire with fire.

-- Jon Gaunt in the Sun

Nino's interview with Lesley Stahl

Weeklong series of interviews of Scalia by Peter Robinson.

Not sure if I can bring myself to watch him interviewed by someone likely supportive already of Scalia's views.

To quote Frank Black, it's educational.

The interviewer is not that bad. He asks some decent questions, although certainly doesn't grill Scalia as much as I'd like.

I found the part II very revealing, actually. Scalia likes his Constitutional Law philosophy because it provides certainty and protects him from coping with scary change.