Antonin Scalia

Scalia's Liberal Tendencies

The late Supreme Court justice was inaccurately described as "authoritarian."

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AEI

In October 2012, during oral argument in a case that raised the question of whether and when a canine "alert" justifies a car search, Supreme Court Justice Antonin Scalia seemed genuinely flabbergasted not only by the idea that a police dog might be inadequately trained but also by the suggestion that police might exaggerate a dog's abilities. "Why would a police department want to use an incompetent dog?" he asked. "What incentive is there for a police department?" The lawyer representing a man who had been incriminated by a dog-triggered search patiently explained that "the incentive is to acquire probable cause to search when it wouldn't otherwise be available."

In light of that exchange, it was not surprising that Scalia four months later joined the rest of the Court in a unanimous decision that effectively gave any cop with a dog the power to search cars at will. Yet a month after that ruling, Scalia wrote a majority opinion—joined by the unusual left-right alliance of Clarence Thomas, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor—that said deploying a drug-sniffing dog at the doorstep of a home qualifies as a search under the Fourth Amendment, meaning it generally requires a warrant. "The officers were gathering information in an area belonging to [the defendant] and immediately surrounding his house—in the curtilage of the house, which we have held enjoys protection as part of the home itself," Scalia wrote. "And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner."

These contrasting decisions—one highly deferential to the police, the other demanding that they get a warrant if they want to go snooping around a suspected pot grower's house—show how Scalia, who died on Saturday, alternately delighted and disappointed libertarians. Although he was not a consistent defender of individual rights (or a consistent originalist or federalist), he was nothing like the authoritarian ogre depicted by his critics on the left.

Daily Kos blogger Sylvia Moore thought Scalia was "clearly an authoritarian." Panda's Thumb blogger Matt Young was less definitive, saying "Justice Scalia generally comes across as an authoritarian." Even legal writer Joan Biskupic, in her relatively respectful and sympathetic biography of Scalia, refers to his "authoritarian bent" and "authoritarian instinct." Yet on the whole Scalia was more liberal than some of his purportedly liberal colleagues, frequently questioning the government's authority to invade our literal and metaphorical curtilage.

Although Scalia's defenses of property rights and the Second Amendment were of a piece with that libertarian tendency, progressives tended to see those stances as consistent with his reactionary reputation. They were less likely to notice when Scalia agreed with them on issues such as privacy, due process, and freedom of speech, since those positions did not fit his image as an archconservative who automatically sided with the government. Here are some of the cases that contradict the caricature.

Fourth Amendment. In addition to rejecting canines in the curtilage, Scalia wrote majority opinions requiring warrants for infrared surveillance of homes and GPS tracking of cars. In a 1989 dissent, he said requiring applicants for Customs Service jobs to pass urine tests represented an "immolation of privacy and human dignity in symbolic opposition to drug use." In a 2009 concurrence, he rejected the notion that the danger posed by hidden weapons automatically justifies searching an arrestee's car without a warrant, noting that "when an arrest is made in connection with a roadside stop, police virtually always have a less intrusive and more effective means of ensuring their safety." Scalia also joined the 2014 decision that rejected warrantless searches of arrestees' cellphones and the 2009 ruling that school officials violated the Fourth Amendment when they searched a student's underwear for unauthorized ibuprofen. In 2013 Scalia dissented from a decision upholding a Maryland law requiring routine collection of DNA from arrestees:

The Court's assertion that DNA is being taken, not to solve crimes, but to identify those in the State's custody, taxes the credulity of the credulous….These DNA searches have nothing to do with identification….If the Court's identification theory is not wrong, there is no such thing as error.

Due Process. In Hamdi v. Rumsfeld, the 2004 case involving an American citizen detained in the United States as an "enemy combatant," Scalia took the most radical position against the Bush administration, saying the government had to try Hamdi in civilian court or let him go:

Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution's Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive's assertion of military exigency has not been thought sufficient to permit detention without charge….

Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis—that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it. Because the Court has proceeded to meet the current emergency in a manner the Constitution does not envision, I respectfully dissent.

Last year Scalia wrote a majority opinion concluding that part of the Armed Career Criminal Act, making enhanced penalties contingent on prior convictions involving "conduct that presents a serious potential risk of physical injury to another," violated the Due Process Clause because it was so vague that it did not give fair notice of what actions would be punished. In a 2010 concurrence, he likewise argued that the federal definition of "honest services fraud" was unconstitutionally vague.

Sixth Amendment. Scalia and Thomas led the charge against mandatory sentencing guidelines, insisting that the Sixth Amendment right to trial by jury means judges may not determine facts that automatically trigger harsher punishment. Because that position prevailed, the guidelines are now merely advisory, allowing judges to give defendants shorter sentences when they deem them appropriate (as long as no statutory minimum applies).

In 2004 Scalia wrote a majority opinion that said introducing a recorded statement by a defendant's wife violated his Sixth Amendment right to confront witnesses against him. Based on similar reasoning, he wrote a 2009 majority opinion that said prosecutors violated the Confrontation Clause by introducing drug test reports identifying seized powder as cocaine without making the analysts who prepared them available for questioning. In a 2011 dissent, Scalia mocked the majority's conclusion that a dying victim's identification of his attacker was not "testimonial" and therefore could be repeated in court without violating the Confrontation Clause:

Today's tale—a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose—is so transparently false that professing to believe it demeans this institution…

For all I know, [the defendant] has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.

First Amendment. Scalia demonstrated a wide-ranging respect for freedom of speech in cases dealing with advertising, online indecency, flag burning, dog fight films, violent video games, and criticism of politicians. His record in this area is stronger than those of justices commonly portrayed as more liberal. John Paul Stevens, for example, thought neither flag burning nor documentaries produced by advocacy groups organized as corporations should be covered by the First Amendment.

In these cases, we see Scalia rejecting the arguments of law enforcement agencies, sometimes in scathing terms; defending the freedom to say controversial, offensive, and outrageous things; questioning the war on drugs as a justification for invasions of privacy; and upholding the rights of accused drug dealers, terrorists, rapists, and murderers. That is arguably the profile of a true conservative, assuming he wants to conserve the Constitution and the civil liberties it protects. But it is not the profile of an authoritarian.

[This post has been updated with additional examples of due process and Sixth Amendment cases.]

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221 responses to “Scalia's Liberal Tendencies

  1. Wait, did something happen to Scalia?

    1. He got in a fight with Lou Reed about the Cleveland Browns.

      1. I’ll believe it when I see a millennial poll about it

    2. He started dating Kim Kardashian. Again.

      1. Speaking of Kim Kardashian, has anyone else been watching the new TV series about the OJ trial?

        So far it has actually made the preteen Kardashian sisters have fairly substantial roles, as well as Kris Kardashian (Jenner), in what appears to be a blatant attempt to try and interest a younger audience who may only know the Kardashians and not much else. Though I certainly remember Robert Kardashian from the whole OJ mess, I really don’t remember hearing anything about the rest of his family — until, of course, many years later.

        One fascinoma, though — the ‘safe house’ OJ was hiding at up until he left it in what became the Bronco chase, was the Kardashian family home. OJ and his girlfriend at the time apparently slept in little Kim’s bed the night before the world watched him being driven around the LA freeway system while he had a gun pointed to his head.

        1. I tried my best to ignore that prolonged TV drama when it played out in reality. The media race baiting was shameless. I have no desire to see the replay of it although the quality of the cast did make it somewhat tempting.

          1. I have the same question now that I did back when this was happening.

            When did OJ become black?

            From the ads I am seeing on TV the same question is being asked by OJ (the actor at least).

        2. it’s actually really good tv. i don’t doubt there’s a ratings component to showing the kardashians, but there’s also the fact that it helps flush out robert kardashian by showing his internal conflict between his family and best friend, especially when that family when were close friends with nicole too.

  2. Scotch for breakfast, beer for lunch. It’s feeling like that kind of day.

    1. Scotch egg and beer cheese soup?

    2. Scotch for breakfast, beer for lunch.

      Add some bourbon, and you’ll have yourself a good blues song.

      1. If you weren’t drinking bourbon in between it wouldn’t make for much of a buzz

      2. One Scotch, one Bourbon, one Beer?
        Who are the Kardashians ?

  3. What is liberal? Which definition are we speaking of here? The classical one or the one defined by progressives where liberal == statist authoritarian fuckwit?

    1. I’m a classical,which in this day and age means I’m I’m a racist right winger.

      1. Rat fucking bigot cracker. Get it right, sheesh!

        1. Hello,
          Just because the universe is dynamic…,
          means your dictionary must limp to try keep up?
          ( looks like you’ve got it close though…)

  4. On the other hand, the same year (1989) that Scalia voted against the invasion of drug testing, he sided with the Court majority in approving of police descending in a helicopter to within 400 feet of a citizen’s house to peer through the window without a search warrant. Brennan harkened to George Orwell’s novel 1984 in his dissent. He also wrote the decision in Illinois v. Rodriquez “allowing police to search a home on the say-so of a visitor. In the Raich case, he ruled against his own states’ rights opinions to disallow a patient from growing their own medical marijuana in California.

    Scalia was “plucked from obscurity” by Don Santarelli, Republican counsel to the House Judiciary Committee who pushed no-knock provisions and “loose search warrants,” and was administrator of the Law Enforcement Assistance Administration, or LEAA, an agency LBJ had created to provide federal assistance to local police departments. (Dan Baum, Smoke and Mirrors.)

    1. “400 feet of a citizen’s house to peer through the window without a search warrant.”

      looking through a window from 100yds away. from a helicopter.

      Could possibly find a narrower example of something that has little-to-no-impact on the general population?

      (compared to the issue of people being pulled over and having your car searched, which obviously applies to tens of thousands of people every year)

      Also, the whole ‘within view of windows’ thing has obvious ‘expectations of privacy’ problems.

      I think the use of, say, thermal imaging to search people’s homes for possible weed-grow sites is something that would be far more problematic

      (and which Scalia ruled against, citing exactly the distinction made above about how expectations of privacy define a ‘search’ under the constitution..)

      “Scalia was “plucked from obscurity” by Don Santarelli [insert bio]

      So, guilt-by-association then? Righto.

      What’s your point? that yes, Scalia was *really teh horrible authoritarian* the leftish types want to imagine him as?

      If so, your examples are so much half-cooked-spaghetti.

  5. “Why would a police department want to use an incompetent dog?” he asked.

    The dog is not “incompetent”. It performs exactly as the department wants.

    1. The press actually got this quote wrong.
      Scalia actually asked “Why would a police department want to use an incontinent dog?”

  6. An entire week of poorly reasoned think-pieces? Will Sullum be able to refute them all using facts and logic? Tune in for an entire year.

    I’m not sure what will be worse: constitutional scholars, or those pretending to be a constitutional scholars.

  7. How did he die? Autoerotic asphyxiation?

    1. When you mix drugs into the operation it gets dangerous.

  8. Jacob, I see no reason to aggrandise anyone as inconsistent as Scalia was.

    I’m also about sick of these “The libertarian case for X” stories. There isn’t an individual on the face of the earth that doesn’t hold at least one position in common with libertarians. That doesn’t make one a libertarian.

    I think the staff needs to realize that consistency in adhering to libertarian principle is the true mark of a libertarian. Where the qualifying line is drawn is, of course, debatable, I’m quite certain that anyone agreeing with libertarians less than or equal to 50% of the time falls squarely into either the progressive or conservative camps.

    1. It’s neither aggrandizing nor ideologically promiscuous to recognize the liberal tendencies in others. In fact it’s really all we have, since the libertarian ethos is so far out of the mainstream.

      1. Meh. It sounds, to me, like Sullum is defending Scalia. IMHO opinion, anyone who gets half of his decisions wrong isn’t really defendable.

        In fact it’s really all we have, since the libertarian ethos is so far out of the mainstream.

        Do you think that may be part of the problem? I mean when describing libertarian positions as “we believe some of the stuff Republicans believe and some of the stuff Democrats believe” instead of “we believe these things based upon liberty”…

        Then Republicans think libertarians are half-liberal and Democrats think libertarians are half-conservative.

        Are we doing ourselves a disservice?

        1. “Liberty and Justice for All” is so quaint. True Americans understand that freedom means asking permission and obeying orders.

      2. In fact it’s really all we have, since the libertarian ethos is so far out of the mainstream.

        How is that? Liberals keep telling me all kinds of things are libertarians’ fault, like Flint River pollution and the Great Recession.

    2. “I see no reason to aggrandise anyone as inconsistent as Scalia was.”

      I’m no court-watcher, and i’ve hardly read more than a few rulings in the last 10 years…. but as far as “inconsistent” goes, i presume you mean in “how he ruled on issues you happened to care about”.

      A jurist can come to some very different decisions on how the law applies using the exact same reasoning. he could have been entirely consistent with his own ‘conservative, originalist’ approach on how to apply past precedent to new cases.

      You could only call him inconsistent if he actually pretended to be a libertarian and then failed to apply whatever you think constitutes ‘libertarian legal-reasoning’.

      The fact that he ruled on many important cases in defense of liberty is certainly something to commend him for. As noted below – he was often the key vote in major decisions affecting the 1st, 2nd amendments.

      I’m not sure its necessarily “aggrandizing” Scalia to point out that the popular contemporary narrative of “Scalia the Monstrous Authoritarian” being pumped in the media has some big holes in it. Just as i don’t think “saying nice things about *some* of Bernie Sanders positions” is at all ‘aggrandizing’ him. There’s nothing wrong commending people for their liberty-supporting views as long as you don’t try and paper over all the other ugly parts.

      1. Consistent wrt liberty, which is all that really matters. Which is his fucking job. The article provides a perfect example:

        Scalia four months later joined the rest of the Court in a unanimous decision that effectively gave any cop with a dog the power to search cars at will. Yet a month after that ruling, Scalia wrote a majority opinion?joined by the unusual left-right alliance of Clarence Thomas, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor?that said deploying a drug-sniffing dog at the doorstep of a home qualifies as a search under the Fourth Amendment

        Not sure how houses have more weight than effects (cars) unless you are towing somebody’s lion.

        Like I said, being right 50% of the time isn’t anything laudable. More laughable. Scalia was NOT a friend of liberty.

        1. “Scalia was NOT a friend of liberty.”

          And the perfect is the enemy of the good.

          If you think the courts would have done *(or will do) better without him, you’re high.

          1. And the perfect is the enemy of the good.

            You think 50% is good?

            Really? What grade did you get in school with a 50%? Oh, I remember. It was an F.

            Pick an R or a D. You’ll get the same overall result. 50% ish. Not sure what you’re worried about. It’ll simply be the opposite 50%.

            1. Do you have an engineering degree, FdA? I don’t, but my ex does, and there were a multitude of tests where she in her classmates would have killed for a 50%. Thank God for curves.

              Was Scalia perfect? Oh, hell no. Was he better than most of the others there? Yeah.

              Furthermore, at least he was mostly consistent. You could predict how he’d rule, a lot of the time, and better still, you could formulate some rules from his opinions that could help you decide whether some other activity would be legal or not legal. Someone like O’Connor, OTOH, with her typical multi-factor balancing tests, you can’t figure out ahead of time what’s likely to be illegal, because you can make the test spit out whatever result you want, by changing the weight you place on each factor.

              IMHO, the most important feature of the Supreme Court isn’t defending liberty, though that’s a goal they should follow: it’s predictability. Rule on something, anything. 4-4 decisions with 5 different concurrences really help no one. Because the Supreme Court can’t rule on every case, they need to give guidance to courts that will rule on those cases, what’s legal and what’s not. Scalia usually did that, even if you often disagreed with his results.

              1. Do you have an engineering degree, FdA?

                As a matter of fact I do. And I was thankful for the curve, as I wasn’t a very good student. But liberty isn’t graded on a curve.

                Was Scalia perfect? Oh, hell no. Was he better than most of the others there? Yeah.

                So tallest midget?

                Getting it wrong means some innocent person is getting fucked.

                I’m sure sure many many Republicans think Scalia was a great Justice. But from a libertarian position, he was just a TEAM hack, just like the other 8.

                1. What is it about Libertarians that they absolutely reject anything that isn’t 100% doctrinaire perfect? While useful for preening purposes, it’s not practical. Since every Libertarian has a slightly different idea of what Liberty looks like, it’s also not surprising that getting Libertarians to work together politically has been about as effective as herding cats.

                  Our enemies haven’t been paralyzed by the idea that they won’t do anything that isn’t perfectly in accordance with their doctrine. They’ve been satisfied with making incremental gains, and over the 100 years or so of Progressivism, they’ve managed to move the discussion well away from what would have been normal to the Lochner Court.

                  1. IOW, even the tallest midget is something to encourage, even if Scalia got it wrong most of the time from a pure Liberty-results oriented perspective.

                  2. “What is it about Libertarians that they absolutely reject anything that isn’t 100% doctrinaire perfect?’

                    Plumage-preening

                    1. Sometimes it’s plumage preening. But I think it’s mostly cynicism. Or I guess it could be both.

                      I sort of go back and forth between being willing to discuss the practical dirty politics and just rejecting those who don’t value liberty as a fundamental principle and apply that consistently.

                      I suppose there are some things where I am somewhat optimistic about things continuing to get a bit better (pot legalization, free speech and gun rights are a few examples). But overall, things just aren’t going to move significantly in a libertarian direction. And being realistic about politics isn’t going to change that.

                    2. I suppose there are some things where I am somewhat optimistic about things continuing to get a bit better (pot legalization, free speech and gun rights are a few examples). But overall, things just aren’t going to move significantly in a libertarian direction.

                      I’d be happy with someone who’d simply follow the Constitution (a fairly libertarian document, as written).

                  3. What is it about Libertarians that they absolutely reject anything that isn’t 100% doctrinaire perfect?

                    What are you even talking about? I’d be absolutely thrilled with even a borderline libertarian. The fact of the matter is, there aren’t any with the exceptions of Amash and Paul and NONE on the SC. Scalia is a populist leaning conservative. There is nothing libertarian about him. He matches up with libertarians on most of the issues libertarians and conservatives normally agree upon. Which means he’s half libertarian (barely) as is every other single member of the court to include all the Progs.

                    This is Scalia.

                    If you don’t believe the chart, here’s his full political bio.

                    1. You really love those nolan charts.

                    2. I’m guessing it was the abortion thing

                    3. Those “on the issues” tests are totally fucked up. Santorum is my candidate. I didn’t know he was all about legalizing the drugs, cutting the military, avoiding foreign entanglements and totally indifferent to gay marriage.

                    4. I think this is probably closer to where you’d imagine

                      tho not necessarily “correct”.

                      FYI – that ‘quiz’ weights the following answers as “hard core libertarian”

                      -Question 1. Abortion is a woman’s unrestricted right =Strongly Support
                      -Question 4. Keep God in the public sphere = Strongly Oppose
                      – Question 16. Make voter registration easier = Strongly Oppose
                      – Question 14. Support American Exceptionalism = Strongly Support

                      etc.

                      Bolded to emphasize =

                      ‘unrestricted’? since when is it libertarian to attribute positive rights to anyone?
                      “keep” god? We have freedom of religion. Why should i oppose that?
                      as for voter registration… Why do i need to feel strongly about it? Showing ID seems fair to me.
                      What do they mean by ‘exceptionalism’? It used to mean ‘no longer part of the narrative of european history’. How does one’s ‘support’ (or opposition) to that idea mean anything?.

                      i actually voted “no opinion” on a range of things and came off only “moderate libertarian” (no ‘right’). Then i went back and made everything “SUPERIMPORTANT” and it made me more ‘upper right hand’

                    5. Yep. That’s exactly where I’d put you.

                      Here was mine.

                    6. “That’s exactly where I’d put you.”

                      I know but sadly i don’t think its worth a damn, as noted (below?)

                      Also, i think maybe i did it wrong going back and then forward again, because it kept recording different answers. Maybe the questions change? Because (as noted above) your “hardcore libertarian” answers weren’t even the same as mine.

                      e.g. I had “no opinion” on abortion, but apparently that killed my “Libertarian” score because you’ve got to believe its a SUPER STRONG ‘unrestricted right’

                      i mean, if that’s how that thing works, it doesn’t mean fucking anything

                    7. That seemed to work better

                      Your Score

                      You scored the following on the PoliticsMatch questions:

                      Personal Score 70%
                      Economic Score 95%

                      Where You Fit In

                      Where your Personal score meets your Economic score on the grid below is your political philosophy. Based on the above score, you are a Hard-Core Libertarian

                      (and that series of Qs was different to the first ones i took? the previous had a lot of different policy-questions like spending on missile-defense etc.? and also had “rate how important” every issue was)

                      The 3 – and only 3! – things that deviated from a “perfect libertarian” score for me was my “no opinion” on God, “Exceptionalism”, and ‘voter registration’.

                      My view on each is a) 1st Amendment, bitch b) What does that even mean? and c) Why is “Showing ID” a problem?

                    8. Again – on that “VoteMatch” thing…

                      White i scored “mostly”-hardcore libertarian… not only was i ‘off’ on those 3 things above (none of which strike me as either libertarian or disqualifying thereof)…

                      but also, this =

                      “EPA regulations are too restrictive =
                      My vote – “Strongly Support”
                      Actual “Hardcore Libertarian View” = “Strongly Oppose”

                      Only ‘Conservatives and Populists’ oppose the EPA?
                      That one question alone seems to account for the entirety of my “Rightward” tilt,

                      (that, and apparently I’m not ‘strongly opposed’ to ‘strictly punishing’ criminals, but just generally against the idea of Tuff On Crime)

                    9. If you click on the EPA link it gives their reasoning. I disagree with it as well.

                      I took “keep god in the public sphere” to mean that it’s okay to make policy based upon religious principles.

                      The American exceptionalism seems completely fucked in their explanation. They say essentially the same thing in their strongly oppose v strongly support

                      And if voting is so damned important, why would you want to make it harder?

                      And for the record their alleged libertarian position on abortion is wrong, but I’m neutral on it so it didn’t matter.

                    10. “I took “keep god in the public sphere” to mean that it’s okay to make policy based upon religious principles.”

                      I didn’t know they offered explanations of these Qs.

                      I took Opposition as assuming a “Freedom From Religion POV” to the 1st amendment, which is a hyper-proggy (and in my view, wrong in every dimension) take on how law has applied to ‘religion in public’. Their explainer for “support” wasn’t nearly “use God as basis for policy”

                      Their actual explanation for the answers don’t have any good “libertarian” options IMO.

                      If there were *(as in the first nolan test linked) a more complex “libertarian” answer to this, I’d click =

                      “The state shall not interfere with the free exercise of religion, and not provide any support to any religious group not currently provided to secular groups”

                      …or something along those lines.

                      “And if voting is so damned important, why would you want to make it harder?”

                      “Not meaningless” is not an argument for great importance… and “Showing ID” does not strike me as “hard”

                      regardless – i think the first test actually provided a better M.O. for teasing out “actual” libertarian views.

                    11. The prog arguement about voter ID is hand waving. You can’t cash a fucking check w/o ID or basically engage in any commercial transaction w/o ID…it’s a fucking strawman.

                    12. It has some issues, but it constantly puts folks in the correct quadrant. If you are borderline we can quibble about the methodology. Scalia ain’t even close. Nor are any of the Republican or Democratic candidates.

                      And the bottom line is, if you aren’t in the top portion, you aren’t libertarian enough to vote for and you’re willing to compromise on liberty. If you can get close to the border, we’ll talk.

                    13. “”Scalia ain’t even close.””

                      Which brings us back to the meaningless of demanding ideological perfection from people who aren’t even libertarians.

                      You seem to obviate the fact that a “constitutional conservative” shares far more in common with libertarians from a jurisprudence point of view than anyone else sitting on the bench (or likely to in the future)

                      But then, you don’t seem at all interested in jurisprudence, and rather just consider certain rulings “wrong” sans context or review of the reasoning.

                    14. Which brings us back to the meaningless of demanding ideological perfection from people who aren’t even libertarians.

                      I don’t demand ideological perfection. I just require you’re in the box, or close to it to gain my support.

                      But then, you don’t seem at all interested in jurisprudence, and rather just consider certain rulings “wrong” sans context or review of the reasoning.

                      That may have something to do with the fact that they’ve used jurisprudence (meaning bad precedent) to completely change the meaning of the plain words of the Constitution. I don’t require a judge or lawyer to know what the constitution says. I can read and I study the history. It’s only after justices repetitively mangle the words to fit their political agendas that we need to worry about jurisprudence deviating from the Constitution.

                      Precedent wrt constitutionality is an abomination. One court with a political agenda gets to accomplish that which would otherwise require 2/3 of the Congress and 3/4 of the states.

                    15. Well clearly the courts need a libertarian ideologue to re-invent the wheel. Surely no one will ignore *those* precedents.

                      “I don’t require a judge or lawyer to know what the constitution says. I can read and I study the history. “

                      Yes, but but when you reduce your arguments down to hamfisted “NOT’STUTIONAL” insistence in the face of decades of case law, please don’t be surprised when people ignore you and think you a bit simple.

                      e.g. you seem to think a jurist is supposed to throw away decades of rulings on what constitutes “A Search” under the law, and just rule by-thumb and the Bill of Rights. It doesn’t work that way, counselor. Because the whole point of SC precedent is to inform new cases with rational guidelines. They can always throw them out if they don’t apply, but when they do…? they test themselves anew and prove their worth.

                      while you may be upset that Scalia determined “looking in a window from a helicopter” was A-OK… he didn’t make that decision because he’s all Tuff on Crime and Right-Wing, he did so because prior cases had established specific conditions for expectations of privacy and what constituted “public view”, and they applied. it was a narrow ruling w/ very little effect on law enforcement.

                      By contrast… you should be very glad he ruled in an expansive way on things like the Thermal Camera-searches, because that precedent will be enormously influential how evidence gleaned via ‘new technology’ in future cases.

                    16. ^this^

                      I generally stay away from these discussions because too many people don’t even have a good layman’s understanding of how the law works.

                    17. Personal 50%
                      Economic 70%

                      Cruz – Jindal – Santorum – Fiorina – Paul – Rubio – Graham – Trump – Huckabee – Christie – Carson – Pataki – Bush – Gilmore – Kasich

                      Sounds about right, except Santorum rated higher than I expected. I liked him as my senator, but he never excited me as a presidential candidate. Perhaps that is where he belongs on the issues.

                    18. I think if you actually looked at the questions, you’d find the first test i took is actually more-accurate at gauging real “libertarian” answers.

                      The first test (linked above) asks people to select one of 4 “longer, complex” answers to a variety of policy questions. and each of those 4 answers is strongly biased towards one of the 4 poles of the Nolan matrix.

                      IOW, it seems more-sensitive to actual ideological “bias”.

                      By contrast, the one you suggested simply asks people to “weight” the importance of lots of *simple, one-dimensional questions*

                      Unless you go out of your way to add “Strongly Oppose!(Agree)” all the time, and then add extra-weight to the “issue score” … it is more biased to slot any bunch of answers towards ‘the middle’ and not actually tease out any underlying principles.

                      like “how much do you think we should spend on missile defense”, etc.? Whats the libertarian answer there? frankly, i don’t think corresponds to anything on the fucking Nolan chart. Even communists don’t want to be nuked.

                    19. On the “World’s Smallest Political quiz” I score pure libertarian. Same on that nolanchart.com These “on the issues” ones are way off. I “strongly support” American Exceptionalism but someone could have my exact same views on the limitations of government powers and the rights of individuals and honestly answer “strongly oppose”.

                    20. Fuckin’ commie! You and your PyongYang values can go straight to Hell!

                    21. I was over “ian”. I used to be a conservative, you guys have corrupted me.

                      I didn’t agree with any of the choices for #10 (Taxes). I’d say, “Government should take an equal percentage from every individual and business to fund necessary projects, to ensure that tax policy does not incentivize people and business into unsound economic choices”

                    22. There is nothing libertarian about him. He matches up with libertarians on most of the issues libertarians and conservatives normally agree upon. Which means he’s half libertarian (barely) as is every other single member of the court to include all the Progs.

                      Yes or No: was he better or worse for advancing liberty than pretty much every other justice besides Thomas and occasionally Sotomayor when it comes to crim justice issues? Maybe Kennedy too, a few times.

                      You aren’t getting right now, a hypothetical Justice Gary Johnson, Milton Friedman, or Justin Amash. But you can work your way towards a future where nominating someone like Gary won’t be absolutely laughed out of the room, like it would be today. [Cont.]

                    23. Besides, the purpose of the Supreme Court isn’t to advance liberty. It’s to: (1) resolve disputes between the Circuits and between the States, (2) make sure that laws are Constitutional (somewhat), and (3) to give guidance to the lower Courts about how to do their job. Sure, liberty and the preservation of the rights of citizens, and holding government to only the exercise of its enumerated powers, is a giant part of the Constitution, but it’s not all of the document. Ripping up all precedent to maximize liberty, as it sounds like you want them to do, gets in the way of the Court being able to do the other three things I mentioned.

                      Besides, if we establish that the Court can shitcan precedent for a good enough reason, held by a minority of the country, that opens the door for Progressives to do exactly the same thing.

          2. I guess I’m high, because out of 300 million plus people, I am sure I could find a better person to reign in the State and protect the liberties of an individual. Of they might be a “top man” who went to a “top school” but I bet I could find them.

        2. “Not sure how houses have more weight than effects (cars) unless you are towing somebody’s lion.”

          You seem to not have read anything i pointed out above.

          Read precedent on how the courts have ruled on what constitutes a ‘search’ of a home vs. a car.

          Scalia could have been perfectly consistent in applying those precedents and been unwilling to overturn them. His consistency to his own form of legal-review may seem ‘inconsistent’ to you because all you’re interested in is a certain outcome – not the means used to reach any given decision.

          1. Gilmore, I think it’s you who doesn’t read.

            Hiding behind precedent doesn’t serve liberty when the precedent is wrong. Value what you will…

            This nation was founded upon the principles of liberty. The Constitution was written to limit government in favor of liberty. It is, therefore, the job of those sworn to support and defend the Constitution to be the champions of liberty.

            Not fucking precedent.

            So…I stand by my comment. Anyone interpreting law based on clearly unconstitutional precedent is no friend of liberty and being wrong half the time isn’t a track record that needs praise.

            1. “Anyone interpreting law based on clearly unconstitutional precedent”

              It wouldn’t *be* precedent if it were ruled unconstitutional.

              1. God knows all the previous justices were correct, virtuous and beyond reproach. Certainly NOT political fucking hacks with an agenda.

                1. “God knows all the previous justices were correct..NOT political fucking hacks with an agenda.

                  Which is odd, because your critique of Scalia is exactly that = that you seem to think “its his job” to impose some sort libertarian view and disregard all previous case law.

                  1. Which is odd, because your critique of Scalia is exactly that = that you seem to think “its his job” to impose some sort libertarian view and disregard all previous case law.

                    No, his job is to support and defend the Constitution. PARTICULARLY when previous case law violates it.

                    Look at the previous example.

                    And then read the 4th Amendment:

                    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

                    How can one possibly claim consistency between those two rulings? You’re right. It was likely precedent where some shitbag ruled in favor of the state allowing a 4A violation (likely for political purposes) wrt effects while holding a different standard for houses. Thus perverting 4A.

                    So where does his duty lie, with the document or the precedent?

                    1. “How can one possibly claim consistency between those two rulings?

                      Consistency will be in the reasoning and application of existing law.

                      As noted already above, in q’s about 4th amendment issues =

                      Scalia affirmed Florida v. Reilly (1989) – “which held that police officials do not need a warrant to observe an individual’s property from public airspace.”

                      According to prior legal tests at the time. ‘things visible to the public’ dont require a search, etc. Putting things in common view imply no expectation of privacy.

                      Then he ruled in Kyllo vs. US (2001) that police can’t use thermal imaging to try and find pot-dealers.

                      Because looking for stuff that can’t been seen any other way IS a ‘search’.

                      “As a result, Justice Scalia asserted that the difference between “off the wall” surveillance and “through the wall” surveillance was non-existent because both methods physically intruded upon the privacy of the home. Scalia created a “firm but also bright” line drawn by the Fourth Amendment at the “‘entrance to the house.'”[1] This line is meant to protect the home from all types of warrantless surveillance and is an interpretation of what he called “the long view” of the Fourth Amendment.”

                      Tell me this = between these “inconsistent” rulings, which do you think did more good?

                    2. Scalia created a “firm but also bright” line drawn by the Fourth Amendment at the “‘entrance to the house.'”[1] This line is meant to protect the home from all types of warrantless surveillance and is an interpretation of what he called “the long view” of the Fourth Amendment.”

                      But apparently there is no bright line around my effects (car) (despite the fact that houses and effects are listed together in 4A), as a dog’s interpreted sense of smell (which also cannot be seen in any other way) doesn’t require a warrant.

                      Which did more good? I don’t even know what that means. If you are observing a property for the purposes of uncovering wrongdoing in which the observed is apt to be accused of a crime based upon what’s discovered, you need a fucking warrant.

                      The default should always be to limit the power of the state.

                    3. “But apparently there is no bright line around my effects (car) “

                      Cars are treated differently under the law, and have been since they came into existence.

                      Sadly, Scalia is not the person who invented that problem.

                      Whether he had any opportunity to improve the situation in the above mentioned doggy-search-ruling is unknown to me, and i’m not sure it was at issue at all. The case was decided Unanimously, which suggests that there was never any real issue being challenged in the first place.

                      While i think his comments in the oral part of the case were idiotic, i think its wrong to presume scalia was simply being deferential to cops by instinct. The problem with that case seems not to be “whether dog-sniffs are accurate are or not”, but rather that there’s almost no real existing legal barrier to car-searches in *any* case, doggy-be-damned.

                    4. The “reasonable expectation of privacy” is one of the worst concurrences (Gertz v. Welch, I believe, which could and should have been decided around the federal wiretap act – it was either a parabolic dish or a bug on a public payphone – I can’t remember which) that later become a majority opinion (I can’t remember the name, but it’s the one with the trash in front of the house on the curb). My Fourth Amendment rights have nothing to do with what a majority of the rest of the idiots will decide is “reasonable.” That’s a public opinion poll played out in a 9 vote N; that is bullshit.

                      I expect my garbage to be (first) picked up by the person I’m paying for that exact purpose, either the city or the private service, and then (second) brought immediately to a suitable place to be disposed of. I don’t fucking expect anyone to pick through it. Go to your neighbor’s house after he puts out his garbage and start picking through it. I dare anyone to do that with everyone in their neighborhood. Let’s test to see how correct the SCOTUS’ definition of “reasonable expectations” are. I would bust someone’s ass for going through my garbage.

                    5. This is the same fallacy/lie that has given us the entire justification for the NSA and govt grabbing your data from your phone/internet/telcom company. You have no “reasonable” expectation of privacy vis a vis the govt or the rest of society when you’ve shared the info with third parties. COMPLETE AND TOTAL BULLSHIT.

                      When I buy a safe, I get the combination to the lock from the safe company. Does that mean I have no reasonable expectation of privacy because someone else already knows the combination?? What kind of fucking dimwit can’t figure that out by analogy?? There is an entire, well-developed body of law that existed surrounding bailments and agency and the requirements of these people to act as fiduciaries, yet somehow when it’s technology 9 fucking old people get fucking stupid and can’t think straight about what it should mean in regards to my right to be protected against arbitrary state action seeking to identify and target me with deprivation of liberty. It’s as if people never really got the concept of liberty in the first instance.

                      Fucking Shocking.

  9. Im making over $7k a month working part time. I kept hearing other people tell me how much money they can make online so I decided to look into it. Well, it was all true and has totally changed my life. This is what I do,

    ——————— http://www.richi8.com

    1. hi bot,
      I heard of someone who had a sister who had an uncle with a son. His brother knew a fish married to a crustacean and they got really rich like you! Best of luck out there!

  10. Love him or hate him, he was one of the five votes who saved the 1st and 2nd Amendments. You really can’t overstate the importance of that.

    1. Yeah the truly horrifying thing about the Supreme Court is that those decisions were 5-4 instead of 9-0.

      1. Yeah, it’s got me second guessing any intention to even ceremonially cast a vote for GJ with at least one SC on the line when there’s zero breathing room as it is.

        1. *one SC seat

          1. Then good for you.

            Making a social signalling vote while letting perfect get in the way of good is no hill worth dieing on.

            I believe Cruz offers those who value constitutional protections as something worth supporting. Of course he is far from perfect from a Libertarian point of view but he is the best available. Using one’s vote as a social signal could actually help another wise Latin with obvious statist’s tendencies to sit on the court for multiple decades.

            I hope many here who live in swing states come to the same conclusion.

            1. -1 reading comprehension. This was the point I was making. Plus, not everyone who would vote LP is signaling socially

              1. I think he was agreeing with you. I think.

            2. Why vote?
              That is, why engage in what must be “coercion by proxy”, if it touch a compromise of principle?
              It only further that poor offers will be elected for no better offer need be put forward.
              State interests seek to further same, and liberty is the antithesis.

        2. Seeing as there is an effective zero chance of your vote making a difference regarding the election, you might as well not vote at all. Voting is essentially superstition, like knocking on wood or tossing salt over your shoulder.

          1. Well yeah, there’s that too. Iowahawk has had quite the time the last day or so explaining why he hasn’t voted since the 80s because it just isn’t worth the time spent doing it

          2. “Voting is essentially superstition, like knocking on wood or tossing salt over your shoulder.”

            I’ve seen some ‘anarchists’ here repeat this frequently

            then just as frequently claim that voting has some super-important symbolic power, where casting a vote means you have just validated the democratic process and therefore concede to whatever depredations the victor in that process delivers upon you.

            I’ve also heard endless moaning from similar circles that anyone making arguments in favor of one candidate or another is an unwanted awful burden which oppresses them. Which is odd, if the ultimate choice is so meaningless and insignificant to any real outcomes.

            If voting is superstition “”like knocking on wood or tossing salt over your shoulder.””…. then it is harmless and doesn’t matter what the hell anyone believes. And you shouldn’t care what anyone does do or doesn’t do.

            But i don’t think you actually believe that

            1. Your powers of observation are abysmal if you can find or remember a single instance of me ever saying anything remotely regarding anything other than “voting is fucking meaningless and pointless”. Have you been drinking early today?

              1. “Have you been drinking early today?”

                That’s the other guy.

                I wasn’t personally accusing you of ‘inconsistency’. I just think you probably consider voting more of a ‘dangerous superstition‘ than a harmless one.

                I was just saying, if that’s true, and voting is so meaningless and pointless…. its odd anyone would take umbrage with other people’s harmless choices.

                1. I hate to break this to you, but not only do I not give a shit what you think I “consider” about voting, you also might want to look up the word “umbrage” and see how you can apply it to my initial statement to Steve. Protip: you can’t.

                  Are you *sure* you haven’t been drinking early today?

                  1. “Are you *sure* you haven’t been drinking early today?’

                    Sorry, nope. why? its 4 on a sunday. If i were doing laundry i’d probably say yes, because those things go well together.

                    my comment was a general reference to complaints about other people’s partisanship sometimes heard here, nothing poking at you.

                    If its a harmless superstition, it really shouldn’t bother anyone what anyone else does.

                    My point re: the link – “The most dangerous superstition” – what anarchists call ‘government’.

            2. Well, I can’t speak for anyone else, but I think voting is pointless and a waste of time. I also don’t care if other people vote. It is what it is, and people are going to do what they are going to do.

              I have been known to make the argument that by voting you are giving legitimacy to the process. But even there, I don’t think of it as a particularly negative thing. Whether or not the process is legitimate, government behaves in the same way.

              I do encourage people who don’t really pay attention or care about politics not to vote. But if you think it matters and want to do it, go for it.

              1. “I do encourage people who don’t really pay attention or care about politics not to vote”
                HA! That is funny!
                They will vote, and state wins!
                When one answer to the state, it is good to petition for such favors as one can get.

                1. New troll alert…

  11. He realized that no one believed in the Constitution any more and died of a broken heart.

  12. He was inconsistent. Although I think very few people in that position would be as consistent as many of us would wish.
    But SCOTUS is far worse off now, if for no other reason, than Scalia’s wit and his pointing to idiocies with his use of language. Jiggery-Pokery and argle-bargle indeed!

    1. The Supreme Court is like a see-saw with two ugly fat kids on opposite ends of a seesaw. An ugly sight, to be sure, but they do do some good keeping each other in check. Scalia’s death means one of those fat kids is about to eat the other ones leg and get a little fatter and the other a little lighter, tilting the seesaw in the direction of catastrophe. Not good, not good.

    2. I’m not sure how you find his decisions “inconsistent”. In fact, he seems to be one of the few that had a very distinct set of rules and guidelines as to “how to decide”, all based on textualism and originalism–something sadly missing from the activist court set of today where the court is constantly finding and defining new “rights” out of whole cloth. And while his decisions may not have pleased you 100% of the time, they were, in fact, quite internally consistent with his views of the law.

      Ginsberg is consistent but her principles are rooted in politics–this is what the law “should” read, not the law itself. Kennedy is anything but consistent–I never know from where he is coming. But you could pretty easily predict where Scalia would fall on any case.

  13. I am very surprised you did not mention his dissent in Kelo v City of New London Connecticut. That strikes me as strong evidence of a support of property rights.

  14. “That is arguably the profile of a true conservative”

    What hogwash. Please stop trying to redefine conservative to mean libertarian. It means something very different.

    1. Conscience of a Conservative, one of the Ur-texts defining conservatism, reads very libertarian to modern eyes. I think the redefining and debasement of the term has been elsewhere.

      To paraphrase a notorious Big Government “conservative”, I didn’t leave conservatism, conservatism left me.

      1. It’s what led me to libertarianism.

  15. All-day drunk. Why didn’t this occur to me years ago? It used to be that drunkeness was an episodic adventure, something for the evening, but in reality there’s no limit inherent to drinking. Wake up with a hangover? Time for a few glasses of whiskey! Out of whiskey? Time for some beer. It’s noon? Well, there’s a frontier that maybe a few mimosas might help us cross over.

    1. Jesus, was Scalia your ‘the one that got away’ or something?

    1. I think “Dae”

  16. Fuckin wowzers. That didn’t take long.

    How Bernie Sanders lost me … and Hillary Clinton won me over

    The first presidential election I voted in was in 1996. I voted for a third-party candidate?I don’t remember more than that it was the one with “socialist” in the party name?because after welfare reform, I was not voting for Bill Clinton. The first time I voted for a Democrat in a presidential election was John Kerry in 2004?I had voted against him in the 2002 Massachusetts Senate election, voting for write-in candidate Randall Forsberg in protest over Iraq.

    I’m not a natural Hillary Clinton supporter, is what I’m saying. When she looked like the only meaningful Democratic candidate in the 2016 presidential election, I was fine with that, committed to a Democratic win but also committed to the work of pushing from her left whenever and wherever possible. When Bernie Sanders got into the race, I was pleased to be able to support a candidate on Clinton’s left. I gave him a little money and assumed I’d give him more.

    http://www.dailykos.com/storie…..on-me-over

    1. I didn’t make it much further before falling out of my chair I was laughing so hard.

      Economic inequality is at the top of the list of issues I care about. I basically spend my life trying to work it into discussions of every other issue, because I usually think it belongs there.

      1. People like that are insufferable. “Do you have a moment to talk about Jesus?”

        1. “Do you have a moment to talk about Jesus and income inequality because true Christians would have never allowed this to happen.”

        2. “Do you have a moment to talk about Jesus?”

          I remember one of those (*paper*) magazine articles on avoiding annoyances, like the “chatty” person in the next airplane seat.
          You simply ask them: “Have you been SAVED?”

      2. I’m reading the comments.

        I’m calling the Dem primary for Hillary right the fuck now.

        I’m on record.

          1. She is pretty loathsome. It’s really difficult to see how anyone could be behind her but 24 years of mostly positive propaganda by a willing press will do that to people.

            1. But the “press” is the word.
              And the word is good.
              Loathsome be whomever say; that the word is not good.

        1. I’m reading the comments. I’m calling the Dem primary for Hillary right the fuck now.

          “She’s the silver-tongued devil of Team Blue!”

          1. slither-tongued?

        2. why do you say that? I thought it was trending in berns direction

        3. I’m reading the comments.

          Geeze, what a sewer. “I’m more pro-Labor than you are!” “Economists agree that we need LIVING WAGE!”.

          As for the primary I can only guess they’ll hold their nose and go for Hillary because lady-parts and TEAM.

      3. This fucker should send 90% of his income to the third world if income inequality is so important to him.

    2. Is there anything more proggie than “this candidate’s primary issue in the campaign is also the one issue I care most about, but he doesn’t give me THE FEELS when he talks about it any more so I’m going to vote for the other option”?

      1. To be fair, that sounds almost libertarian.

      2. Touche

    3. Yeah I’m not reading that, so why did he come to support Hillary? Gave him a free blowjob when all Bernie would do is jerk him off?

  17. OT: Any Evil Twin or Mikkeller fans out there? Looking for recommendations…

    1. Beer Geek Vanilla Shake is pretty darn tasty but I’ve only procured it in Europe. I generally prefer Mikkeler to Evil Twin. I think they’re one of the most innovative Brewers out there.

    2. I don’t believe I’ve had either. I would definatey try that Joey F**king Pepper though. I love Belgian Blondes.

  18. Scalia was a hack, but his hackiness frequently worked for freedom. We’re probably going to be worse off with his passing

    1. THIS!!! I think it is the “a broken watch is right twice a day” meme. He was a partisan hack, and I am glad he is dead. Oh….. and just because I despised this fat fuck doesn’t mean I want some progressive “living constitution” shit for brains to take his place.

      1. It’s another expression of ‘I’m voting for the lesser of two evils’ meme. Why can’t people just take someone into account and say: he sucked on this, he was great on that.
        Kinda like an artist, a musician, an actor. They probably sucked most of the time but got it right a few times or maybe more.
        Sure Scalia wasn’t Keanu Reeves (which is what the Left would say) but he wasn’t close to say Daniel Day-Lewis (what the Right may say).
        I frankly don’t care. I’ll remember him as some fucking Guinea that landed a pretty sweet job.

      2. So you are an incoherent babbler around here…I’ll wait for your next pearl of wisdom.

      1. Do you say that after every bong hit?

        1. Diane sometimes says “wowzers”. 😉

  19. I’m only commenting to say that I’ve had my adblocker suite disabled for Reason for several months because I love you guys, but I just had a loud autoplay video open in the middle of this article (using Chrome), so it’s getting turned on again.

    Inbefore +1 Epi’s Mom.

    1. Autoplay is evil

      1. So is my mom.

        1. At least your mom makes it worth my while. Autoplay has no redeeming qualities.

  20. Well he chose a very inconvenient time to die. That deity he let decide cases for him must be an asshole.

    1. Gee, Tony, we can just hope you, that hag, Bernie and Obo contract horrible diseases and die painful deaths!
      You’re welcome, shitbag.

      1. For the record I think dying at a remote hunting party, Agatha Christie style, is hard to beat.

        1. Tony|2.14.16 @ 3:55PM|#
          “For the record I think dying at a remote hunting party, Agatha Christie style, is hard to beat.”

          Please take the other three with you; the world will instantly be better off.

          1. You gonna take your monthly shower before you go proudly cast your vote for Trump?

            1. While you’d vote for Pol Pot without even feeling the need to wash your hands?

              1. Vote for Pol pot and soon there will be no soap, so no more need to wash your hands!
                (Or do a Venezuela, and no more need for TP.)

                1. ps
                  It is awsome what a good socialist learns he/she/etc., doesn’t need.

    2. Return of the gaytard….authorities notified…piss off Tony

  21. The late Supreme Court justice was inaccurately described as “authoritarian.”

    You got to be kidding me. This is the fat fuck that wrote…..

    “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent,

    You got that. It is legal to execute innocent people just because some fat fuck in a robe hasn’t waived his magic legal wand and “found” it.

    If it is true that the court has never found a constitutional right for the actually innocent to be free from execution, then your constitution is meaningless. Does this really have to be said? And if it takes 200+ years to “find” such a fundamental moral tenant for the legitimacy of anything that wishes to call itself a state, then maybe your republic doesn’t deserve to survive..

    But then again, this former republic has been toast for a decade, at least.

    1. But then again, this former republic has been toast for a decade century, at least.

      ftfy

      1. Was the republic dead before or after slavery was legal? Jim Crow? You people need to perk the fuck up and keep fighting.

        1. The 17A was the death of the Republic as far as I am concerned.

        2. It really went to shit after Yorktown. Should’ve just surrendered to the Brits at that point.

          1. Think the French talked Washington out of doing that.
            A revolution over there was brewing, and a competition to see best fit to protect “The rights of man”.
            WWF: The State vs everyone else.
            Did turn out kind of statie both wise.
            Herd animals or something?

            1. New troll alert….

    2. I’m not sure your quote says what you claim it does.

      All he’s saying is that the SC never ruled on the question of whether there is any constitutional bar that forces the feds to interfere in a state’s judgement.

      that’s just a factual point – its not even a statement of opinion.

      this piece here has some people commenting on that =

      ” Vincent Rossmeier noted in Salon,”His opinion suggested a certain callousness on the question of whether the courts should care if the state puts an innocent man to death, but he was right when he said the Supreme Court has never ruled whether an individual’s ‘actual innocence’ necessitates the involvement of a federal court in a state conviction.”

      Basically, “it sounds like a really dickish thing to say”… but its still 100% true. And his comment wasn’t much different than Rehnquist’s (mentioned later in the same piece) that upheld the idea that “”the Feds generally stay out of the way”” in capital cases as a matter of law.

      1. his comment wasn’t much different than Rehnquist’s

        I am stunned, STUNNED, that there’s been more than one fascist on the Supreme Court. Or that Nixon could have appointed one.

        Where is my fainting-couch?

        1. Next to the masturbation love seat?

        2. It’s not necessarily fascist to fail to invent constitutional justification for overturning a state court’s ruling if such justification doesn’t actually exist. The legalities involved were more complex than either you or Troy suggest. It isn’t SCOTUS’s job to determine guilt or innocence.

          1. It isn’t SCOTUS’s job to determine guilt or innocence.

            Bullshit. If someone is likely innocent of a crime but is about to be executed by a state, his process was nothing like “due.” And “cruel and unusual” seem like they’re in the mix.

            1. his process was nothing like “due.” And “cruel and unusual” seem like they’re in the mix”

              Yes, and if those things were determined to be true…. then it would be an entirely different constitutional question then?

              iow – scalias point would still be true if those things were at issue.

              1. The guy was likely innocent. Period. If the lower courts can’t figure out that maybe the process was fucked up, the Supremes have to. Scalia didn’t because government fuckups are just fine as long as all the forms are filled out properly.

                1. ” likely innocent. Period. “

                  Wow, chalk that up as a *definite maybe*

                2. If the lower courts can’t figure out that maybe the process was fucked up, the Supremes have to.

                  That’s the entire issue right there. Scalia did not think the process was fucked up from a constitutional perspective, irrespective of the outcome.

                  FWIW, the rest of the court disagreed, sent the case to the federal courts for a hearing, and a federal judge determined that the process wasn’t fucked up, which is why SCOTUS rejected Davis subsequent petition for a new trial and allowed him to be executed. SCOTUS doesn’t make determinations of guilt or innocence, they only rule on the constitutionality of the process.

                  1. SCOTUS doesn’t make determinations of guilt or innocence, they only rule on the constitutionality of the process.

                    If the guy is fucking innocent, he hasn’t gotten due process. It’s unconstitutional, irrespective of what some fascist with a robe says.

              2. This precisely. The questions before the court were more narrow. And in any case, the Supreme Court would not make a determination of fact on the guilt or innocence, because that isn’t their job. They would send the case back to lower courts to determine those facts. Which is actually precisely what happened in the Davis case – the majority did not agree with Scalia and ordered a federal hearing.

        3. Its actually not a “fascist” point at all. Its a conservative one, saying (as noted above) that the SC has generally stayed away from any rulings interfering in how states handle capital cases.

          It says nothing about the person’s personal approval of state-sanctioned murder. Its a question of law.

          1. “Conservative” does not mean “the Bill of Rights is some stuff written by a bunch of dead white guys like a hundred years ago or sumthin.”

            1. “conservative”, as in = ‘Generally limiting the scope of required oversight by the federal government‘ in matters of law.

              hope that’s clearer

              1. hope that’s clearer

                Yes, much. In your view, conservatism gives the Federal government a pass on its primary raison d’etre: “to secure these rights.” You’re certainly entitled to that view, it’s just different than the impassioned defense of constitutionalism espoused by people like Goldwater.

                1. ” In your view, conservatism gives the Federal government a pass on its primary raison d’etre: “to secure these rights.”

                  no, that’s not what i said. I simply pointed out that Scalia isn’t saying what you’re pretending he’s saying.

                  and his point is basically a technical one – not “what should be the case”, but “what is currently the case”

          2. I get the feeling we mix a person’s character with their ability to skillfully interpret the law. It’s possible to hold a personal view but still rule in favor a law that violates that personal opinion.

            1. “I get the feeling we mix a person’s character with their ability to skillfully interpret the law.”

              This – and also people are reading a great deal of “personal opinion” into what (like above) are actually just technical matters of law.

              1. “Technical matters of law” do not override basic rights, and especially not those basic rights which were explicitly spelled out in the constitution. If the “technical matters of law” mean “no due process,” it’s the “technical matters of law” which are wrong. Scalia’s brand of statism says, “Procedures were followed, totality of circumstances, string him up, fuck the constitution.”

                1. yes, it is all much simpler when you ignore the meaning of what he actually said and the context of what was actually being debated.

                  see below re: Grey Ghost & PM’s comments

                  The irony which you seem to keep missing while you’re waving around the constitution….

                  ….is that you’re demanding that extra-constitutional powers be asserted by the federal govt, because…. well, because ‘arbitrary feels’.

                  You made a good point above about ‘due process’ and ‘cruel/unusual’ issues, because those things – entirely different things – would have placed the govt in far clearer a position.

                  His point above was that there was no actual constitutional justification for federal intervention in a death penalty case *lacking any other basis for a challenge* other than the habeas finding.

                  IOW Scalia was being the ‘strict constitutionalist’ here

                  While you on the other hand seem to be saying, “the feds can make it up as they go along” as long as the ‘right end result’ happens (and in this case, the guy was executed anyway)

                  You’re basically arguing in favor of Terry-Sciavo’ing every single capital issue in the country.

                  1. Thanks Gilmore. (I think)
                    Post seventeenth amendment, does DC make a 50 state “laboratory”, into a monolith under a single authority and its entrenched ruling bureaucracy?
                    Maybe already to many “Mandarins” and their allies, and we’ve already lost this one?

    3. If it is true that the court has never found a constitutional right for the actually innocent to be free from execution…

      Wonder no more: it is true

      As a constitutional matter, Scalia’s assertion is not wrong. The court has never found a constitutional right for the actually innocent to be free from execution. When the court flirted with the question in 1993, a majority ruled against the accused, but Chief Justice William Rehnquist left open the possibility that it may be unconstitutional to execute someone with a “truly persuasive demonstration” of innocence.

      That last sentence leaves out an important caveat in Rehnquist’s reasoning:

      …in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional and warrant federal habeas relief if there were no state avenue open to process such a claim

      1. And in the case that I think Troy’s referencing, that of Troy Davis, the Supreme Court eventually relented, let Davis have his evidentiary hearing for evidence that wasn’t available at the time of his trial, and he still lost.

        Would I have voted to execute Davis, on the evidence presented at the wiki and a few other sites? Maybe. Maybe not. I’d like more data before I vote to kill someone. I might have gotten that at trial. And, knowing that many of the witnesses who put Davis there, later recanted, I might have changed my mind from an initial Guilty vote.

        Am I convinced he was innocent? Absolutely not, despite Amnesty Intl and Sister Prejean screaming the contrary. I’d particularly like more info on the prior shooting Davis may have been involved in, where bullets from that shooting matched the ones that killed Officer MacPhail.

        Eventually you have to have finality to proceedings, or you may as well get rid of the death penalty. Which I admit is where a good chunk of commenters here want to have happen.

        1. Correct – Scalia actually wrote the above quoted statement in a dissent on Davis’ habeas petition where the majority sent the case to a federal hearing, where Davis lost again. SCOTUS then rejected his petition for a new trial and allowed the execution to proceed.

        2. Yep. I went back and read about that whole process with Davis. SCOTUS absolutely can not rehear cases for guilt or innocence. If every capital case has to be reheard at every level of court, we would still be hearing cases from the 1970s. In addition, there was NO evidence that substantially caused the guilty verdict to be questioned. Some witnesses did recant their testimony that Davis was the shooter, but several did not. And Judge Moore at the rehearing stated only 1 of those was even credible. No DNA evidence was ever produced which could exonerate him.
          Once a person is found guilty of capital murder, they are automatically appealed to the Georgia Supreme Court. They upheld the conviction and sentence. SCOTUS declined to hear an appeal. At this point, it would be incumbent upon the defense to show substantial evidence which would call his guilty verdict into question.
          I agree with Ghost. At the original trial, I am not sure how I would have voted. It is next to impossible to recreate the information in court room as presented when we know what happened afterwards. If all of the evidence regarding recanted testimonies was available at the original trial, it may have made a difference. But once the trial and appeals based on fact are over, it is all about process. And due process was most definitely NOT denied Troy Davis.

    4. The trial court rules ont he evidence. The appeals court rules on the proper process of the trial court. They don’t consider evidence. You may find that to be fucked up, but that’s the way it’s always been.

      1. It has to be that way. We can’t retry every freaking defendent at every level of appeals.

        Having said that, there absolutely should be some way to perhaps force a retrial if new evidence which substantially calls into question the guilt of the defendent is available (DNA or something). Or at least a process by which any new evidence should be reviewed. And then if a judge deems that it could substantially call into question the guilty verdict than a new trial could be ordered.

        But that was in no way what happened with Troy Davis. And in any case, Scalia was saying nothing more than it isn’t SCOTUS job to rehear criminal trials.

        1. Look at the American girl’s murder trial in Italy and the Pistorius murder trial in South Africa. If acquitted, the prosecution appealed. If convicted, the defense appealed. New trials. On and on for years.

  22. Defending property rights is a libertarian priority? When did this happen?

    Since we live in the libertarian moment, we should probably insist that the next Supreme Court justice be someone who is sympathetic to gay rights, is pro-choice, and won’t use blatantly racist arguments from the bench. It’s our time so let’s demand more than having bigoted blowhards on the Supreme Court.

    1. Why must he or she be ‘pro-choice’? And give it a rest with the bigot crap. Shouldn’t you be making absurd claims about Cuba or something?

    2. Defending property rights is a libertarian priority? When did this happen?

      Ahh, you see, “property” has a different meaning to people who do not believe in collective ownership of the means of production. So you may find yourself confused when the term is being used in reference to “private property” or “personal property”. Don’t worry, it’s only because you’re so amoral and stupid.

    3. Ownership of oneself is fundamental. I own my own person. I find it rich that collectivists even worry over slavery or racial equality. If you don’t own your own being then you are at the whim of what some power says you are.

      1. People owning people is slavery.
        The State is not slavery, it is freedom.
        The State owning people is freedom, because the State and the people are as one.

    4. Blatantly racist arguments? I thought we were talking about Scalia, not Sotomayor?

    5. How about a justice who adheres to the constitution, regardless of his/her personal viewpoints? You want a justice who has already decide the case before the arguments are made. What kind of rule of law is that?

  23. Scalia did two good things: he was a friend to defendants, and he killed a law which required judges to follow sentencing guidelines. He made those guidelines into suggestions, rather than requirements, and allowed judges to depart from them at their discretion.

    1. actually the entire article above lists a pretty wide range of “good things”

      i thought the 4th amendment line he drew in the Kyllo ruling (2001) (and later in the cell-phone thing in RILEY v. CALIFORNIA 2014) was a huge bar for the state to cross in using “new technology” to invade citizen’s privacy. It was prescient and more-wide-ranging than it needed to be in that narrow case… as they note =

      “”Justice Scalia also discussed how future technology can invade on one’s right of privacy and therefore authored the opinion so that it protected against more sophisticated surveillance equipment. As a result, Justice Scalia asserted that the difference between “off the wall” surveillance and “through the wall” surveillance was non-existent because both methods physically intruded upon the privacy of the home. Scalia created a “firm but also bright” line drawn by the Fourth Amendment at the “‘entrance to the house.'”[1] This line is meant to protect the home from all types of warrantless surveillance and is an interpretation of what he called “the long view” of the Fourth Amendment. “

      It wasn’t the strongest of bright-lines, because they’re still using an “available to the public” standard of technology, which will obvious change as time passes

    2. Fuck off , not very intelligent Toad. That’s not surprising as Toads are not very intelligent as a rule…they are amphibians with very small brains, kinda like Mr. Toad.

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  26. I may be too late, but I went back and read the ruling on Florida v. Harris. And the decision rests not on the idea that drug sniffing dogs are infallible or anything. But that just like any other test for probable cause for a search, the totality must be considered. And that defense could have questioned the training of the dog, or of the officer in the original trial and that would have been fair game. They could have questioned the efficacy of the dog. But defense didn’t do that.

    It would be like saying breathalyzers shouldn’t be admissable. Of course if a person is on trial for DUI, they can challenge the breathalyzer results and the jury should take into account all of that information. But just saying the breathalyzer doesn’t count is not good enough. Same thing here. Plus add in the fact that the man had an open beer can (that in and of itself is crime), it doesn’t seem unreasonable to me that those things put together would make probable cause for a search.

    NONE OF THIS SHOULD BE READ THAT I SUPPORT THE DRUG WAR. I am only commenting on the decision for this particular case.

  27. Goomba Jones is not going to like that at all man.

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  28. As a lawyer who has read hundreds of Scalia opinions/dissents, the thing I have mostly learned is that most people commenting on him have read or have simply declined to critically analyze his positions.

    Too many times he essentially says “the legislature is the proper place for this to be determined” and people immediately start calling him racist/homophobe etc simply because he doesn’t think judges should be writing statutes.

    He was far from perfect but far from being the gargoyle many people are making him out to be.

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  33. Dream On?:

    “In your dream, the constitution was not a scam,
    In your dream, the Supreme court is not a scam,
    In your dream, 9/11 was not a scam…….”

    Lyrics excerpted from:

    “Dreams [Anarchist Blues]”:

    http://www.youtube.com/watch?v=QMXtoU…..e=youtu.be

    Regards, onebornfree.

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  36. To be fair, that sounds almost libertarian.
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