Antonin Scalia

Dahlia Lithwick: You Go, Girl

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dahlia lithwick headshot.jpgSome of you think we give Dahlia Lithwick, the legal affairs writer for Slate, a hard time. And it’s true that we often disagree with her (even if we always acknowledge her writerly talent). But we do find ourselves agreeing with much in her latest piece, criticizing recent critiques of the news media by several Supreme Court justices.
In response to Justice Antonin Scalia’s remarks during a panel sponsored by the National Italian American Foundation, Lithwick writes:

Scalia said, “The press is never going to report judicial opinions accurately.” It seems our reporting is limited to: “Who is the plaintiff? Was that a nice little old lady? And who is the defendant? Was this, you know, some scuzzy guy? And who won? Was it the good guy that won or the bad guy?”

I’m still running the Nexis search for the reporting on last spring’s campaign-finance reform decisions that includes the terms “little old lady” and “scuzzy guy.” But it seems to me the reporting on that case was a lot clearer than the opinions.

And although, if anything, the Supreme Court press corps is hypercautious in its attention to legal detail at the expense of sensationalism, Scalia dismisses them, and their readers, because, in his view, “nobody would read it if you went into the details of the law that the court has to resolve.”

While we agree with Justice Scalia’s general point that news accounts of court cases often focus more on the facts, including facts about the parties, and less on the legal issues — which may not be surprising, given that the facts are more accessible to a lay audience — we do believe that most Supreme Court reporters try their best to explain the legal nitty-gritty to their readers. And many of them — including Lithwick, Linda Greenhouse of the New York Times, and Charles Lane of the Washington Post — have formal legal training.
A little bit more, after the jump.

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“[E]verything That Is Stupid Is Not Unconstitutional.”

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thoughtful man.gifAnn Althouse raises a potential quibble with the above quip, made by Justice Antonin Scalia in a public appearance this past weekend. She writes:

It would be better to say “not everything that is stupid is unconstitutional.” “Everything that is stupid is not unconstitutional” can be read to mean that every stupid thing is constitutional, when plenty of stupid things are unconstitutional. I know there’s some argument over whether this should actually be considered a usage error. The argument that it’s not usually brings up Shakespeare’s “All that glisters is not gold.” Why didn’t he write “Not all that glisters is gold”?

Howard Bashman criticizes Professor Althouse for engaging in “untoward nitpicking on the internet.” But it seems to us that Althouse, after raising this possible ambiguity, ultimately comes down on the same side as Bashman:

[F]orget about this particular language nicety, I’d say. I’m rather glad to myself, since I was personally needled for years by someone who was inordinately vigilant on this usage point.

To support her position that this is much ado about nothing, Althouse cites Fowler. And as we’ve pointed out in these pages, Justice Scalia is a devout follower of Fowler.
We say: Everything is illuminated that is not unilluminated. Including the dispute over this issue of usage.
“It so happens that everything that is stupid is not unconstitutional.” [Althouse]
Does “Everything that is stupid is not unconstitutional” equal “Every stupid thing is constitutional”? [How Appealing]
Earlier: The Eyes of the Law: A Legitimate Use of “Scalito”
The “S” Clash: Scalia’s Position Explained
Read This Only If You’re a Grammar Nerd

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Morning Docket: 10.24.06

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nevada red rock canyon.jpg* Carter to Ensign: “I may be a carpetbagger, but you’re a Bushman.” [AP via Online Athens]
* Out here in the West, we have a rugged, independent, individualist spirit. However, we want to make sure that our judges never express it. [Washington Times via How Appealing]
* The Constitution says that the writ of habeas corpus can be suspended only in times of rebellion or invasion. When it was suspended during a rebellion, and then later during an invasion, these suspensions were found to be unconstitutional. Now it’s being permanently suspended for a certain class of people without the circumstance of either a rebellion or an invasion. I’m sure we fine. [Fulton County Daily Report (subscription)]
* Scalia to the courts: You leave the country alone, and they’ll leave you alone, mmmkay?[WSJ Law Blog]

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The Eyes of the Law: A Legitimate Use of “Scalito”

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scalito antonin scalia samuel alito.JPGDuring the Supreme Court confirmation hearings for Justice Samuel A. Alito, some conservatives grumbled about one nickname bestowed upon him: “Scalito.” They argued that it unfairly treated him as a jurisprudential clone of Justice Antonin Scalia, without recognizing his independence as a thinker. Some also viewed the nickname as reflecting anti-Italian prejudice.
We’d like to reclaim the name of “Scalito,” and put it to legitimate use. Let’s turn it into the judicial equivalent of “Bennifer” (the first and best celebrity couple neologism, superior to “Brangelina” or “Vaughniston”). In these pages, we will use “Scalito” to refer to Justices Scalia and Alito whenever they appear in public together — as they did this past weekend.
Approximately 400 people attended a panel discussion on judicial independence, held this past Saturday at the Washington Hilton. The discussion, sponsored by the National Italian American Foundation, featured Justices Scalia and Alito, as well as William S. Sessions, a former FBI director and federal judge, and Lynn A. Battaglia, a Maryland appeals court judge.
Not surprisingly, Justice Scalia stole the show. Accounts of this Article III celebrity sighting focus primarily on his remarks. His main point was to question judicial independence as an absolute virtue: “You talk about independence as though it is unquestionably and unqualifiably a good thing. It may not be. It depends on what your courts are doing.”
Familiar stuff. His remarks about media coverage of the courts were far more amusing:

“The press is never going to report judicial opinions accurately. They’re just going to report, who is the plaintiff? Was that a nice little old lady? And who is the defendant? Was this, you know, some scuzzy guy? And who won? Was it the good guy that won or the bad guy? And that’s all you’re going to get in a press report, and you can’t blame them…. Because nobody would read it if you went into the details of the law that the court has to resolve.”

Sad but true. And Justice Alito echoed some of these sentiments:

Alito complained that people understand the courts through a news media that typically oversimplifies and sensationalizes. He said people’s ability to amplify their comments globally about judges and their opinions on the Internet takes a toll on the judiciary.

“This is not just like somebody handing out a leaflet in the past, where a small number of people can see this,” he said. “This is available to the world. … It changes what it means to be a judge. It certainly changes the attractiveness of a judicial career.”

Justice Alito, are you calling into question the value of writing about judges on the internet? If so, you’re hurting our feelings…
(By the way, if you haven’t done so already, please cast your vote in our poll to find out your Favorite Supreme Court Justice. We’ll close the voting once we have about 1,000 votes, which strikes us as a reliable indicator of ATL reader sentiment. Right now we have a little over 600. To vote, click here. Thanks!)
Scalia Rips Judges on Abortion, Suicide [Associated Press]

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A Random Friday Poll: Your Favorite Supreme Court Justice

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This is NOT an official ATL contest. We won’t offer any commentary on the candidates, to keep the proceedings objective. This is simply a random Friday poll that we’re conducting for our own curiosity.
Readers of this site are generally interested in, and highly knowledgeable about, the United States Supreme Court. Many of you might be called “legal nerds” or “judicial groupies” (both of which we view as badges of honor).
So while we have you all here, we thought we’d ask:
supreme court 2006.jpg

Who is your favorite U.S. Supreme Court justice?
Chief Justice John G. Roberts, Jr.
Justice John Paul Stevens
Justice Antonin Scalia
Justice Anthony M. Kennedy
Justice David H. Souter
Justice Clarence Thomas
Justice Ruth Bader Ginsburg
Justice Stephen G. Breyer
Justice Samuel A. Alito, Jr.
  
Free polls from Pollhost.com


We know that such online polls have been conducted previously. See, e.g., here. And we have seen articles in which legal experts are asked to name their favorite member of the SCOTUS. See, e.g., here.
But we haven’t seen such polls or articles for the Court as currently constituted, i.e., after the appointements of Chief Justice John Roberts and Associate Justice Samuel Alito. So we thought we’d run such a poll and see what results we get.
Please cast your vote, so this tally will be as accurate a representation of ATL reader opinion as possible. Thanks!

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The “S” Clash: Scalia’s Position Explained

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apostrophe s.gifHere’s a brief update to our post from yesterday, concerning the divergence among Supreme Court justices over whether to include a second “s” at the end of the possessive form of a proper noun already ending in “s.” E.g., Kansas’ or Kansas’s.
Justice Thomas says no (“Kansas’”), while Justice Souter says yes (“Kansas’s”). We’re with Justice Souter on this one — as is Steve Dillard, although it pains him to admit it.
Justice Scalia appears to flip flop on the question. Jonathan Starble of the Legal Times offered a theory to explain Justice Scalia’s approach: “He believes the extra ‘s’ should be omitted if the existing ‘s’ is preceded by a hard consonant sound.”
We did some poking around, and Starble’s theory is essentially correct. Past clerks tried to convince Justice Scalia to use the “s” no matter how it sounds (unless a plural possessive is involved, in which case only the apostrophe is needed). This is Justice Souter’s view, Strunk and White’s view, and our view as well.
But Justice Scalia consulted Fowler’s, and he could find no rule to this effect. So he declined to follow the clerkly counsel. Instead, he “goes by the ear,” or by how it sounds: If it sounds ugly, then add only the apostrophe; if it sounds okay, then add the “s” as well.
Generally we’re all in favor of making decisions based on aesthetic considerations. But in this case, we respectfully dissent.
Gimme an ‘S’: The High Court’s Grammatical Divide [Legal Times]
Mark This Date Down [Southern Appeal]
Earlier: Read This Only If You’re a Grammar Nerd

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The Wheels of Justice: Judge John M. Walker Hits Police Officer in Traffic Accident

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judge john m walker jr judge john walker.jpgFederal judges are brilliant people. But they aren’t always the best, or the safest, of drivers. We’ve had the privilege of riding in cars with federal judges, so we know this firsthand. Let’s just say that the reasoning in their opinions is often tighter than their left-hand turns.
Rumor has it that Justice Antonin Scalia can be rather aggressive when behind the wheel of his BMW 525. Some pedestrians fear Justice Sandra Day O’Connor “like a Floridian driver.” And it has been alleged that Judge Robert W. Gettleman (N.D. Ill.), the highly regarded Chicago judge, drives his vintage Porsche “like a cabbie.”
On a more serious note, sometimes placing a federal judge behind the wheel gives rise to tragic consequences. From the New Haven Register:

The motorist who struck and critically injured a city police officer working a traffic detail Tuesday is a senior federal judge in New Haven. John M. Walker Jr., who is in his mid-60s, had been chief judge for the 2nd U.S. Circuit Court of Appeals for six years until Sept. 30, when he assumed senior status.

Police sources said Walker was the driver of the sport utility vehicle that struck Officer Dan Picagli, a 17-year veteran, on Chapel Street in the Wooster Square neighborhood. Picagli, 38, remains in critical condition at Yale-New Haven Hospital.

Police are investigating the accident, which happened during a steady rain at 6:30 p.m. No charges have been filed.

Officer Picagli, who works in a youth-oriented policing unit and runs the Police Athletic League, a program for city youths, is well-loved by both his colleagues and the kids he works with.
More about this accident, after the jump.

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Morning Docket: 10.17.06

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attorney man comic attorneyman.gif* Lawyer facing 30 years gets 28 months for the terrorism equivalent of passing a note in class. [New York Times]
* This guy is talking major smack about the Constitution. Where does he get off speaking his mind in a free press? And all without the fear of having the king’s soldiers quartered in his residence! [L.A. Times]
* Coming soon to a comic-con near you: ” By becoming a more skillful listener and communicator, Attorney Man masters the art of sales and develops a healthy roster of supersatisfied clients. `Wow! Look at those learned hands!’ one client gushes admiringly.” [Boston Globe via WSJ Law Blog]
* Another stock scandal for a high ranking government official. Who’d have thought the former chairman of the F.D.A. Obesity Working Group would come up with an easy way to make money. [N.Y. Times]
* Nadine and Nino go mano-a-mano this weekend on CSPAN (Washington’s ESPN). Says the mildly-worded AP article, “Scalia… generally finds himself taking the opposite position to the ACLU.” [Law.com]

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Morning Docket: 10.12.06

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i like ike button.gif* Buttons — isn’t that the new song by the Pussycat Dolls? Yes; but it’s also the issue in a case argued before the Supreme Court yesterday. Question Presented: Was a murder defendant’s right to a fair trial violated when the judge allowed relatives of the victim to sit behind the prosecutor, sporting buttons with the victim’s photo on them? [New York Times; Washington Post; Slate]
* A federal judge rules that candidates for the state bench can’t be barred from personally soliciting campaign contributions. So let’s just shove C-notes down their robes. [New York Times]
* Ex-Enron CEO Jeff Skilling won’t take the Martha Stewart approach: he’d like to remain free on bail while his appeal winds its way through the courts. This makes sense: his sentence is likely to be way longer than Martha’s brief stay at Camp Cupcake. [Washington Post]
* Justice Sandra Day O’Connor was slumming it earlier this week at the Second Circuit. The Times provides a UTR-esque account of the “mind-numbing” proceedings. [New York Times]
* The Supreme Court heard oral argument yesterday in Cunningham v. California, an important case raising the constitutionality of California’s sentencing scheme — and one that will have implications for other state sentencing systems. (Readers of the tea leaves suggest that Chief Justice Roberts and Justice Alito may not be in complete agreement with Justices Scalia and Thomas. Who are you calling “Scalito”?) [Sentencing Law & Policy; Los Angeles Times; New York Times]

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The Eyes of the Law: The Red Mass

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st matthews cathedral.jpgOn October 1, before the start of the new Supreme Court Term, the annual Red Mass was held at St. Matthew’s Cathedral, in Washington, DC. Held before the opening of the judicial year, the Mass is celebrated “to invoke God’s blessing upon… all protectors and administrators of the Law” (description here).
Tony Mauro of the Legal Times reports on this year’s Red Mass, which was attended by numerous legal celebrities:

By law, the Supreme Court opens its fall term on the first Monday in October.

But by tradition, the Court season begins the day before, with the annual Red Mass celebrated at the Roman Catholic Cathedral of St. Matthew in Washington, D.C.

At this year’s Oct. 1 mass, four of the five Roman Catholic justices — along with Attorney General Alberto Gonzales, several other Cabinet members, and dozens of other area judges and public officials — were in the pews.

No sign of President Bush, who did attend the Red Mass in 2005. But plenty of other big names were in the house (of worship):

Chief Justice John Roberts Jr., who, with his wife, Jane, was active for many years in the Catholic organization that sponsors the mass, was in the front row, as were Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas. Justice Samuel Alito Jr., the other Catholic on the Court, did not attend, nor did the non-Catholic judges, some of whom have come in the past.

Why was Justice Alito not in attendance? Perhaps he was out of town?
If you know the answer to this question, or if you attended the Mass and can offer an eyewitness account of the proceedings — including sightings of any lower-court judges in attendance — please share your knowledge in the comments (or send us an email).
Seeing Red [Legal Times]
A Judicial SIGHT-ation Tomorrow: The Red Mass [UTR (2005 Red Mass)]
Judicial SIGHT-ations: Federal Judges Busting Out All Over! [UTR (2004 Red Mass)]
The Red Mass Online [St. Thomas More Society]

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