Law postsTuesday June 03, 2014
Respectfully, Justice Scalia, It's the Troposphere
I love this SCOTUS nugget from Ryan's Lizza's post, “Barack Obama, Left Conservative,” on the Obama administration's new stance on the dangers of, and regulation of, carbon dioxide.
According to Lizza, it all began with a lawsuit from James R. Milkey, who sued the federal government on behalf of the state of Massachusetts, whose coastlines were eroding due to global warming. Initally people thought Milkey was daft for his lawsuit. Five years later, he was arguing before the U.S. Supreme Court, where this exchange took place:
“Your assertion,” Justice Antonin Scalia, who was skeptical about the link between greenhouse-gas emissions and Massachusetts’s disappearing coastline, said, “is that, after the pollutant leaves the air and goes up into the stratosphere, it is contributing to global warming.”
“Respectfully, Your Honor, it is not the stratosphere,” Milkey responded. “It’s the troposphere.”
“Troposphere, whatever. I told you before, I’m not a scientist. That’s why I don’t want to have to deal with global warming, to tell you the truth.”
Milkey won, 5-4. Now we are where we are. Which is way behind but at least in the game.
Song for the U.S. Supreme Court
In the wake of last week's U.S. Supreme Court decision in McCutcheon v. Federal Election Commission, in which the 5-4 majority struck down a cap on total donations that can be made to individuals during federal elections, here's a song by Leonard Cohen. Lyrics first:
Everybody knows that the dice are loaded
Everybody rolls with their fingers crossed
Everybody knows the war is over
Everybody knows the good guys lost
Everybody knows the fight was fixed
The poor stay poor, the rich get rich
That's how it goes
Thanks, Justices Alito, Kennedy, Roberts, Scalia and Thomas, for fixing the fight a little further. And for not knowing what everybody knows.
'Live from D.C., It's ... '
Supreme Court Anonymous.
In the middle of “Clarence Thomas' Disgraceful Silence,” a New Yorker article celebrating eight years of nothing from one of our sitting justices, which includes a good primer on who speaks up when and how during oral arguments, author Jeffrey Toobin adds this throwaway thought:
The Court’s arguments are not televised (though they should be), but they are public. They are, in fact, the public’s only windows onto the Justices’ thought processes ...
As soon as I read it, I thought, “Hey. Why don't they televise hearings? I mean, wouldn't that be cool?”
Cool for me anyway.
Think of it. It would make the whole process less mysterious. It would open things up. It would make the court's decisions accessible to more Americans. What's the argument against besides tradition? Besides the notion that the television screen reduces everything? That lawyers, not to mention justices, might play for the cameras rather than to history?
Guess what? There's an entire Wiki pages on the subject. I'm late to the party.
Here are the arguments against televising SCOTUS hearings, with comments from me:
- Requiring the proceedings ... to be televised is a threat to judicial independence and, thus, the separation of powers. I don't get this argument. How is it a threat? To either one?
- Justice Anthony Kennedy ... argues that the measure would not align with the “etiquette” and “deference” that should “apply between branches.” Why? Are the justices indelicate during arguments? And aren't the other branches already on television? So wouldn't this ... balance things?
- Furthermore, some justices believe televising the proceedings would change the way they act in the courtroom. This is an understandable reaction. I wouldn't want to be televised at my job, for example. But I'm not making new law every day, either. It's not what you want; it's what the country needs.
- Justice Clarence Thomas also contends that televising Court proceedings would reduce the level of anonymity that justices now have and could raise security concerns. Is this is an argument against taking photos, too? Because we do that. And it's not like the Court will be a ratings bonanza. It'll be CSPAN for lawyers rather than ... say ... the Thomas confirmation hearing.
- Opponents also believe that television coverage would also take away from the mystery of the court and cause the public to misinterpret the Court and its processes. I get this argument least of all. Less mystery equals ... more misinterpretation? They don't think much of us, do they?
Thoughts? Anyone? Bueller?
Quote of the Day
Q: What’s stronger: the competitive instinct or the advocacy instinct?
A: I think as you get older, the competitive maybe gets a little less and the advocacy gets a little more. When you’re younger, you’re going to take on the world. As you get a little older, you realize the world will win.
-- from my Q&A with real estate attorney Benjamin S. Stern, “Life, Death and the Green Bay Packers,” in the 2013 issue of Wisconsin Super Lawyers magazine.
Scalia Views Congress as Source of Tyranny
Another excerpt from Justice Scalia's conversation with Jennifer Senior in New York magazine. This is right at the beginning and seems, given recent events, prescient:
[In 1974] I knew very well that the 900-pound gorilla in Washington is not the presidency. It’s Congress. If Congress can get its act together, it can roll over the president. That’s what the framers thought. They said you have to enlist your jealousy against the legislature in a democracy—that will be the source of tyranny.
But weren’t you just saying that you learned from Watergate that presidents aren’t incorruptible?
What, and Congress is? I mean, they’re all human beings. Power tends to corrupt. But the power in Washington resides in Congress, if it wants to use it. It can do anything—it can stop the Vietnam War, it can make its will felt, if it can ever get its act together to do anything.
Apparently it doesn't even take all of Congress to get its act together. It merely takes one faction of one party, along with a yellowbellied Speaker, to create a kind of tyranny. Does Scalia view the current crisis (gov't shutdown, hostage taking, etc.) as just that, or do his politics, which tend to the right, get in the way?
Either way, what made me do a doubletake were his examples.
OK, first, the follow-up is wrong. The question isn't who is incorruptible (which is no one) but who holds the power. And according to Scalia, Congress holds too much of it. His evidence?
It can do anything—it can stop the Vietnam War, it can make its will felt, if it can ever get its act together to do anything.
So: stopping a war it didn't start, despite Article One of the Constitution, and the vague “making its will felt.”
Sloppy. I need to see more work here, Antonin.