April 22, 2014
"Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving."

Justice Scalia, dissenting in Navarette v. California, released today.  The Court decided 5-4 that an anonymous tip from a 911 caller accusing a motorist of reckless driving, without more, provides police with reasonable suspicion to conduct a traffic stop and detain the motorist.  This is a departure from the general rule that anonymous tips must be corroborated by extrinsic evidence or other “indicia of reliability” in order to provide a basis for reasonable suspicion.

August 31, 2012
"It is a singular embarrassment for textual originalists that the most esteemed judicial opinion in American history, Brown v. Board of Education, is nonoriginalist."

Richard Posner, The Incoherence of Antonin Scalia.

When I read this, my reaction was similar to that of an audience member witnessing someone get ruthlessly served at a BBoy competition, or an underground freestyle competition.

Put the balm on it, Scalia.  Put the balm on.

h/t Interruptions

June 25, 2012
"Scalia, who 25 years ago had a certain gift for pointing out the blindness and hypocrisy of certain versions of limousine liberalism, has in his old age become an increasingly intolerant and intolerable blowhard: a pompous celebrant of his own virtue and rectitude, a purveyor of intemperate jeremiads against the degeneracy of the age, and now an author of hysterical diatribes against foreign invaders, who threaten all that is holy."

Paul Campos

Everything Paul Campos says should be taken with a grain of salt after he was outed by Brian Leiter for smearing his colleagues in a desperate, fact-free, and self-serving tirade against the rest of legal academia.  

Nonetheless, I couldn’t help but crack a smile at seeing Nino once again called out by academics for a lack of intellectual integrity, even if from an ironic quarter.  Lyle Denniston, a court watcher of some fifty years, was also unimpressed by Scalia’s Arizona decision, as was Kevin R. Johnson, Dean of the UC Davis school of law.  So Campos is in credible company, at least.

February 21, 2012
On Reading Cases, Ctd.



squashed replied to your post: Personal Notes: On Reading Cases
And when it’s a Thomas opinion, I close the book. Because Thomas’s opinions are written terribly. Scalia was at least witty.
Thomas is horrible 99% of the time. But he is actually fairly lucid when he’s writing…

I’m not going to address Affirmative Action on the whole as theory or practice but I am sympathetic to your unease in finding yourself nodding along to Justice Thomas. I had the similar and unfortunate experience last week while reviewing my Con Law readings. His Grutter dissent is actually a stirring revival of the important and beautiful colorblind interpretation the Equal Protection Clause as well as a reality check on how lax the Court can be with the second prong of the Strict Scrutiny inquiry. I admit, I felt fairly strange telling a friend after class that I was both the President of my law school’s ACLU and (temporarily) in agreeance with Justice Thomas.


Thankfully this sympathy for the (originalist) devil(s) didn’t last too long. This morning I draw caricatures of Scalia sobbing like a baby in the margins of his particularly histrionic United States v. Virginia (1996) dissent.       D:    < Scalia

Anywho, relevant news is relevant: New York Times - Supreme Court Agrees to Hear Affirmative Action Case

LTMC: if you ever want a reason to hate Justice Scalia, just read Whren v. United States, any case involving the Establishment Clause, or his 8th Amendment jurisprudence, which can be summed up in the following churlish phrase:

"No Proportionality principle lolol" - J. Scalia

That being said, Scalia’s approach to the doctrine of lenity, and his 6th Amendment jurisprudence are both, and I hate to say it…excellent.  His interpretation of the Confrontation Clause has saved many a defendant from out-of-court testimony, and his approach to lenity, while sadly not the majority view, nonetheless grants criminal defendants a favorable presumption when the meaning of a criminal statute is unclear or ambiguous.  His hard-on for English Common-law as a barometer for original intent is a liability more often than not, but occasionally it leads to good legal precedent.  Occasionally.

October 30, 2011
Scalia’s Convenient Catholicism

Sullivan spots Scalia reconciling his Catholicism with judicial imposition of the Death Penalty:

Last month Justice Antonin Scalia said:

If I thought that Catholic doctrine held the death penalty to be immoral, I would resign. I could not be part of a system that imposes it.

Lisa Miller puts him in his place:

The U.S. bishops oppose capital punishment. So do this pope, the last pope and documents from the Vatican press office. … And so, in the tradition of millions of Catholics for thousands of years, [Scalia] has rejected official teaching in favor of his own view, which he believes (to be presumptuous for a minute) to be more traditional and more moral than the established one. That’s fine with me. I don’t want a justice sitting on the Supreme Court who submits blindly to religious authority or who holds his religion above the laws of the land. So keep your job, Justice Scalia. Just don’t pretend your church approves of the death penalty. Or that you aren’t like most people of faith, cherry-picking the teachings of your church that suit you best.

One thing I have never understood about the zeitgeist of Catholicism is the fact that there is so much diversity among Catholics as to exactly what Catholicism’s teachings are.  Catholic dogma holds that the Pope is essentially the closest thing to the voice of God on earth, being the successor of St. Peter, whom Jesus appointed as the “shepherd” and “rock” of the Catholic church.  When he speaks, the Holy Spirit speaks through him.  Also, the Pope and the college of Bishops in Rome stand in place for Peter and the Apostles.  As such, their interpretations and pronouncements of Catholic teaching are binding.  If your beliefs stray from those pronouncements, then by definition, you’re not practicing Catholic Christianity.  

Indeed, that was the entire point of Martin Luther’s 95 theses: Luther and his ilk were unable to reconcile what the Catholic Church was doing with their own sense of the Bible, Christianity, and the teachings of Jesus.  Hence, they separated, and the Protestantism was born.  Most fundamentally, this separation was borne out of disagreements with church leadership.  It follows from this that if you disagree with what the church is saying, through the Pope and the College of Bishops in Rome, you are taking the same position in regards to the Church that Luther did when he published his Theses.  I.e. you are putting yourself outside of Catholic dogma as dictated by the Church.

If any Catholic followers out there would like to enlighten me on this issue, feel free.  My understanding has always been that the Doctrine of Papal Infallibility is a fundamental tenet of Catholicism.  If you disagree with the Church, you’re essentially disagreeing with the Holy Spirit insomuch as it manifests itself divinely in the voice of the Pope.  So if you want to criticize with the Church, or part with one of its teachings, you have to discard the Doctrine of Papal Infallibility.  Once you do that, the game is up.  I don’t see any way around this if one wishes to eschew pronouncements from the Church Leadership while maintaining their Catholic identity.  It seems to me that the more fundamental principles of Catholicism don’t really leave room for that.  And I think that’s precisely what Scalia is doing here.

October 8, 2011
"The Constitution’s text does not alone resolve this case."

Justice Scalia, Crawford v. Washington, 541 U.S. 36, 42 (2004).

Scalia veering from rigid textualism…I’ll bet he had to buy Clarence Thomas a big bouquet of flowers to smooth over that comment.

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