TOM THE DANCING BUG: Judge Scalia - Robed Rage!!

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  1. Definition of an activist judge: a judge who makes a decision in direct contrast to one’s personal beliefs.

    1. Um, no.  That would be a GOOD judge.  An activist judge would be one that ruled according to his personal beliefs INSTEAD of the word and principles of the law. 

      1. If I understand Yoshua correctly, the judge is an activist when he votes against my 
        personal beliefs, not his own. The “one” he refers to is the person who calls the judge an activist, in which case that definition is spot on.

    2.  My personal belief is that a judge has to make decisions according to law, not his personal beliefs.

      1. Since laws are not written in mathematical formulas, they require interpretation, and that interpretation is inevitably colored by personal beliefs.

  2. You know,  a lot of this Supreme Court brouhaha could be settled, and we could really rock the originalism  if only Percival Dunwoody would just go ASK the founding fathers what they thought about every issue.  What could go wrong?

  3. Scalia is not an “originalist” he’s a “strict constructionist”, meaning he doesn’t care what the intention of the legislature was in passing the law or what the founders meant in drafting the constitution. He will not consider transcripts of debates on the house floor or signing statements in interpreting the meaning of a statute. Rather, he will pull out a dictionary from the time the statute was written and look up the words. If the way the statute was written results in an unintended consequence, i.e., one the legislature did not intend. Then he feels it is upon the legislature to correct it. It is not the role of the judicial branch the re-write the law to effectuate its intended purpose. That is his position whether or not you agree with it. (I think it’s a bit harsh to the guy who he sends to jail for an action that was not intended to be criminalized, but technically is because of the poor wording of a statute). A “judicial activist” by contrast is one who changes the meaning of of the wording of a statute or pplies the statute in a way he/she feels is appropriate regardless of the wording of the statute. So say what you will about Scalia, but it’s nonsense to call him a judicial activist. He’s the exact opposite extreme, which doesn’t mean it’s any better.

    1. Hardly. He’s always been more likely to favor upholding conservative-branded legislation. If he’s not a blatant activist, he’s certainly capricious and unpredictable (I don’t know which is more troubling). Look at what he ruled on Arizona’s and Montana’s cases last week:

      “Scalia’s cafeteria constitutionalism, in which he picks and chooses the laws he ideologically agrees with and ignores the ones he doesn’t, was never on better display than in Monday’s SCOTUS decisions. In the world according to Scalia, Arizona has the right to patrol its own borders associated with a sovereign state, but Montana must bow to federal power when it comes to obeying Citizens United (the state’s 100-year-old campaign finance law was enacted to free its citizens from the corrupt control of mining interests).”

      1.  Scalia is probably the most predictable justice on the court. I’ve met plenty of law professors who hate, him, but I’ve never heard him called capricious. The primary complaint against him is that he applies the same rigid (overly rigid) standard of review to every case regardless of the circumstances. That makes him predictable. The salon article misses the distinction between the two laws:  Citizens United interprets the First Amendment as protecting the free speech of corporations as groups of people. Thus, the states may not pass laws that infringe on free speech under the 1st Amendment.   The constitution also grants the federal gov’t the authority to enact immigration law.  However, the constitution is clear (10th Amend) that it does not prohibit the states from enacting their own laws as long as they do not conflict with the enumerated federal powers.  So the question in the Arizona case is whether the state law goes beyond federal law.  It does not. The issue there was that the fed executive branch decided not to enforce the federal immigration laws. However, that executive policy decision does not prevent Arizona from executing its own laws as long as they do not exceed the federal authority. If the feds don’t want Arizona to enforce immigration law, then the congress must enact a more lenient immigration law and Arizona will be required to obey. The president/Justice Dept. does not have the authority to dictate to Arizona. Congress must change the law.  Politically that is not going to happen, so the President tried to do an end-around the legislature. That’s the best I can explain it without going into legalese. But, please know that I ma not advocating a position. I am not saying how it “should” be. I am saying how it is.   However, I think it’s weak when both sides just resort to name-calling instead of understanding WHY they do what they do.

    2. I’ve seen very little evidence of this sort of principle in Scalia’s rulings.

      A “judicial activist” by contrast is one who changes the meaning of of the wording of a statute or pplies the statute in a way he/she feels is appropriate regardless of the wording of the statute.

      No, that’s what we call a “judge”.  A “judicial activist,” as accurately defined by yoshua, is a judge who makes rulings with which you personally disagree.

      1.  I like Yoshua’s definition. Because it seems there is so much name-calling and “judicial activism” has become a campaign buzzword in an election year. But it actually did mean something once. And it applied to result-oriented decisions, where the judge starts with the desired outcome and then tries to rationalize it by interpreting a statute in a new way. I disagree with you that this is what judges are supposed to do. But I suppose we can have a difference of opinion on that issue.

    3. What amazing luck, then, that every statute that could be interpreted conservatively is worded just so as to allow Scalia to tease out these hidden nuances and use his strict constructionist interpretation to achieve that end. Never once, it seems, has a statute been worded to cause Scalia to side with a liberal interpretation of a law. Truly remarkable luck, that. 
      Apparently strict constructionism led him to believe that actually counting votes that determine the election of the POTUS would impugn the legitimacy of the election–that’s an interesting tack. Or how’s about his interpretation of Equal Protection, which seems to know now bounds in its application to corporations as deserving of rights, but seems somehow strangely bound when considering legislation intended to benefit minority rights. 

      Ignoring the intent of the law is the EXACT cause of his judicial activism. Why consider what the legislative branch intended when you could just hold your own color to the statute and decide for everyone. He is a scoundrel.

      I hope that he soon revisits Article III with his powerful gaze and realizes nothing in that document provisions him the power of review he wields so forthrightly. 

      1. “Ignoring the intent of the law is the EXACT cause of his judicial activism. Why consider what the legislative branch intended when you could just hold your own color to the statute and decide for everyone.”

        I think you have just stated the strongest critique against him. Words don’t really have concrete meanings and statutes are the result of a collaborative process between adversarial political factions. Using a strict constructionist standard of review is really just imposing an ideology of positivism on the rest of us.

        1. mattatlaw, my hat is off to you. I’ve learned a lot reading your comments on this, and you did a hell of a job resisting partisan bickering. I hope you weigh in with your legal insights more often. As a far left liberal who’s getting increasingly disillusioned with the left’s tendency towards reactionary politics without digging into the meat of the issue, you’re a breath of fresh air.
          PS – I almost never compliment people on the internet. I’m sort of a dick like that. But this! This we need more of. 

      2. Much in the way that right wing Christian fanatics interpret The Bible in ways that suit them, but ignore the parts that don’t.

        1. I was thinking this the other day: in EXACTLY the same way. Having been trained, in my youth, in Biblical literalist theology, they have a term for this: “proof-texting.” They teach that proper exegesis, proper interpretation of scripture, involves looking at a passage in its context and comparing it against every other passage that relates to the same subject, all in the context of understanding God to be just and loving. Proof-texting is deciding what you want the Scripture to mean, and then combing through it to find some out-of-context sentence fragment that, interpreted the way you want to interpret it, and potentially ignoring dozens of passages that contradict you, “proves” what you want.

          The entire war on abortion and homosexuality and “socialism” comes from 19th century proof-texting of the Christian scriptures; pushed forward, in the United States, by so-called “strict constructionist” politicians and judges who proof-text the Constitution.

          1. I like this “Proof-Texting.”  It’s basically Quote Mining on steroids, and especially when you put it up to the mirror of many groups of religious fanatics, it has a lot of similarities.  Look at the differences in the trains of thought between the Scientific Method and the Creationist standpoint.  The Scientific method takes a hypothesis, runs an experiment against a control group to collect data, and then makes inferences based on that data.  In contrast, the Creationist standpoint takes a look at the final result, and then searches backwards from that in an attempt to gather all the data that would prove one way or another.

            While there’s actually nothing wrong with such a forensic approach (after all, investigators do it all the time), the problem is that they do nothing to disprove any evidence to the contrary.  A good investigator would collect and take all the evidence at face value and present it equally, no matter if it helps or hinders the prosecution.  They would then run scenarios based on what they have, and if there are any contradictions in the evidence, investigate further in order to weed out anything that isn’t based on truth or fact.  A bad investigator would, at-best, ignore any evidence that would hinder the side he favors, and at-worst may tamper with or destroy evidence in order to tip the scales one way or another.  Alternatively, they may collect all the evidence equally, but when resolving conflicts between pieces of evidence, do poor research into them and eventually choose to accept what helps their favored side of the case instead of that which is factual.

            Many of the people who are involved in these “Goal-Oriented” investigations simply need to change their goal to one of what is true, as opposed to a goal of proving his or her favorite side right.  The same applies to these “Proof-Texters.”  If they would only change the underlying motivation of their actions, they would come up as nowhere near the level of jokes they seem to be currently.

  4. I’ve always wondered just how “original” Scalia wanted to be with his originalism. Invalidate all amendments post-Bill of Rights? Or does his dogma resort to pretzel logic in order to preserve those amendments that fit his world view?

    1.  Pretzel logic?  I just can’t imagine a jerk like Scalia burning one and chillin’ to “Rikki Don’t Lose That Number”, but who knows what goes down in the sanctuary of his chambers..

  5. Bolling like a lot of people seems to misunderstand Roberts’ ruling:  it was in fact about as partisan and about as activist as you can get, as it will affect political discourse (handicapping the incumbent) for the balance of the election cycle, and affect the very chances of the law it upheld being repealed thereafter.

    And yet Roberts has seen himself applauded by those in the left . . . .

    if there’s a Darth Lord anywhere in this whole affair, it’s Roberts, not Scalia.

    Scary smart, and evil.

  6. “Originalism and Judicial Activism:” the belief that the Commerce Clause alone does not justify any conceivable power that the Federal government wants to claim.

    Seriously, Congress could pass a law dictating you have to cut your toenails in just this way, and the Court would rule it valid under the Commerce Clause.

    “By cutting your toenails left to right, you are not buying information about how to cut them right to left interstate, so your act of cutting your toenails is itself interstate commerce.” (ie, Willard vs. Fickburn, or the more recent CA Med Marijuana ruling)

    I know that really doesn’t apply here…instead, this was a law that Obama went on TV loudly proclaiming was not a tax, that he would never pass any new taxes on those making less than $250,000, and that the head of the DNC just yesterday repeated was not a tax…defended in court as justifiable because it’s a tax. 

    Did I miss something?

    1. “I know that really doesn’t apply here…instead, this was a law that Obama went on TV loudly proclaiming was not a tax, that he would never pass any new taxes on those making less than $250,000, and that the head of the DNC just yesterday repeated was not a tax…defended in court as justifiable because it’s a tax. 

      Did I miss something?”

      Yes, apparently the part where Obama and his spokespeople are not affiliated with the Supreme Court.  Simply because the SCOTUS decided that it was, by legal definition, a tax, and therefore Constitutional, does not mean that Obama et al. considered it to be a tax.

    2. You missed that the Commerce Clause argument was rejected and the law was upheld on the basis of taxation authority.  So i guess, yeah, congress could hypothetically tax your toenails someday. 

      Now tell me, if this is such a horrible thing, why did Republicans support it for nearly 20 years?

      But okay, you caught Obama in a big fat lie.  Or you caught Obama disagreeing with the the Supreme Court.  And it’s only a tax increase for freeloaders who can afford insurance but choose not to buy it.  So yeah, boo hoo, the moochers who expect us all to cover their medical bills for them are now going to be forced to contribute something back to the system.  Oh, the humanity.

      Me?  I have health insurance and always have.  So this doesn’t increase my taxes and instead lowers my costs.  So no, I’m not all bent out of shape that a bunch of moochers have lost their “freedom” to raise my premiums with their dine-and-dash care plan.

  7. Hysterical cartoon…if you love tyranny.  
    CJ Roberts’ ruling not only handed over control of the entire medical-industral complex to the federal government but also set a horrifying precedent for congress to tax anything they damn well please.

    The US Constitution is supposed to protect citizens from an overreaching government.  Roberts swore an oath to uphold the Constitution.  His nonsensical court finding that upheld Obamacare (by both labeling it a tax and then declaring it’s not a tax) is intellectually inconsistent and upheld legislation that amounts to the biggest and most expensive power grab in history.  Roberts violated his oath of office.

    Obamacare wasn’t really about healthcare.  It was about power.  And those who hate freedom and champion statism in lieu of individual liberty have won a huge victory from which the US might not fully recover.

    Congratulations to all those who hate America and hate freedom.  Hopefully the iron heel of what’s coming next won’t snap your neck.

    1. [citation needed]. EVERYWHERE.

      Not that you’ll provide them, of course. Backing up your claims just isn’t the style of ranting wingnuts.

    2. Impressive. We are rarely treated to this level of vapid right-wing ranting on BB. Your keywords are truly breathtaking: “horrifying precedent”, “protect citizens”, “power grab”, “violated his oath of office”, “hate freedom” (twice!), “hate America”, “iron heel”… sorry if I missed any. Combine all those catch phrases plus a few and’s and the’s and voila! You have all the meaningless babble that I can stomach for one morning.

      1. Some people love freedom so much they think it’s like wedding china, something that should be locked up and kept safe from the hoi polloi.  After all, you’re only as free as some one else isn’t.

    3. DAMMIT! I hate this fucking disqust. I had an anti-rant that got lost. so just… fuck you glenn beck.

    4.  If this is such a horrible blow to freedom, why did Republicans support it for nearly 20 years?  As for taxing anything they damn well please, well, news flash: they already do that.  For once, they’re actually taxing freeloaders who expect the rest of us to pay their medical bills.  Myself, I’ve always had health insurance so no, I’m not all bent out of shape that you’re being robbed of your “freedom” to lay your medical expenses off on me.

    5. Of course the drafters of the US Constitution really intended that citizens be protected from the democratically elected Federal Government, as it is much better for citizens and Government alike to continue as pawns of the medical -industrial complex.

    6.  I just hope SOMEONE is going to bring some accountability to the medical-industral complex. Frankly those guys’ iron heels are pretty awful. At least the iron heels of the federal government can be changed every 4 years or so.

  8. ” Citizens United interprets the First Amendment as protecting the free speech of corporations as groups of people.”

    Doesn’t it also redefine money as speech? I’m no fancy big city lawyer, but that seems a stretch of interpretation that only an activist could rationalize. It also overturned years of campaign finance reform hard fought over many years in D.C. as well as in individual states.

    1. Actually the money = speech concept, iirc, was born in Buckley v. Valeo, some decades older than Citizens United. The treatment of money as protected speech in Citizens is based on precedent, just like the (usually rather useful) legal fiction of corporate personhood.

      Also, remember that you can have years and years of hard-fought legislation that still isn’t constitutional once it gets reviewed by SCOTUS. (Not that I’m saying we don’t need the reform, just that the hard-foughtness of legislation doesn’t necessarily validate it in the eyes of the people who decide what the Constitution means.)

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