Law postsThursday October 10, 2013
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.
Where I Agree with Scalia
Earlier this week, New York magazine published a much talked-about Q&A with Justice Antonin Scalia. I was going to write a combative post about some of his combative comments but realized it would take too long. Besides, I kept running across things he said that I agreed with.
So here are the things he said that I agree with.
On “stupid but constitutional,” which is like “shitty but not illegal”:
A lot of stuff that’s stupid is not unconstitutional. I gave a talk once where I said they ought to pass out to all federal judges a stamp, and the stamp says—Whack! [Pounds his fist.]—STUPID BUT CONSTITUTIONAL. Whack! [Pounds again.] STUPID BUT CONSTITUTIONAL! Whack! STUPID BUT CONSTITUTIONAL … [Laughs.] And then somebody sent me one.
On the idiocy of the State of the Union:
I know you haven’t been to a State of the Union address for a while, and I wanted to know why.
When was the last time you went to one?
Oh, my goodness, I expect fifteen years. But I’m not the only one who didn’t go. John Paul Stevens never went, Bill Rehnquist never went during his later years. Because it is a childish spectacle. And we are trucked in just to give some dignity to the occasion. I mean, there are all these punch lines, and one side jumps up—Hooray! And they all cheer, and then another punch line, and the others stand up, Hooray! It is juvenile! And we have to sit there like bumps on a log. We can clap if somebody says, “The United States is the greatest country in the world.” Yay! But anything else, we have to look to the chief justice. Gee, is the chief gonna clap? It didn’t used to be that bad.
He also knows who to blame for that:
The Gipper may have been the one who started it. He’s the one who brought in people he would recognize in the audience, and things of that sort—made it a television spectacle. And once it becomes a television spectacle, it’s nothing serious.
I loved Seinfeld. In fact, I got some CDs [sic] of Seinfeld. Seinfeld was hilarious. Oh, boy. The Nazi soup kitchen? [sic] No soup for you!
On low expectations:
If you have low expectations, you’re not disappointed. When it’s somebody who you think is basically on your side on these ideological controversies, and then that person goes over to the dark side, it does make you feel bad.
On writing and aging:
But I often worry when I go back and read one of my early opinions like Morrison v. Olson. I say, “God, that’s a good opinion. I’m not sure I could write as good an opinion today.” You always wonder whether you’re losing your grip and whether your current opinions are not as good as your old ones.
Much of the rest I disagree with. We have different world views, different concepts of, in particular, absolutism and relativism. I wish the Q, Jennifer Senior, had asked him, for example, what he thinks is absolute and what he thinks is relative. Maybe that's too broad a question. Maybe it's too boring. He's obviously aware the world changes. But he also says this: “Words have meaning. And their meaning doesn’t change.” Esqueeze me?
Antonin and I.
Ronald L. Motley (1944-2013)
From The New York Times:
Ron Motley, a trial lawyer who built a fortune out of high-risk cases against the asbestos and tobacco industries, leading the litigation team that helped bring about the largest civil settlement in American history — $246 billion — died on Thursday in Charleston, S.C. He was 68.
The cause was respiratory complications related to a long illness, said his friend and law partner of nearly 35 years, Joe Rice.
The son of a gas station owner and a schoolteacher, Mr. Motley rose to the heights of the legal profession, displaying a startling memory for detail and an ability to get his ideas across, connecting evidence and courtroom tactics seemingly on the fly. William S. Ohlemeyer, a lawyer who opposed him in a 1998 case in Indiana involving environmental tobacco smoke, said, “When you were in court and he was sitting behind you, you could almost feel him thinking.”
I'm now the editor in chief of a national legal trade publication, so I know a bit about him, but Mr. Motley first came to my attention in the guise of Bruce McGill in Michael Mann's “The Insider.” Here's the famous scene:
I like the calm after the storm: “Answer the question, Doctor.” The New York Times obit, which includes some great anecdotes from Mr. Motley's career, also mentions the above scene:
Mr. Motley’s advocacy in those cases earned him a moment of fame in Hollywood’s version of the tobacco wars: the movie “The Insider,” about the whistle-blower Jeffrey S. Wigand. Mr. Motley was played by Bruce McGill, and his bellowed “Wipe that smirk off your face!” to a tobacco industry lawyer stands out as a moment of high drama in the film.
The 'Stand Your Ground' Law, Starring Yellowbelly
Opponents of Florida's “Stand Your Ground” law are attacking the wrong aspect of the law.
Here's an Op-Ed in the New York Times:
Police officers are trained to de-escalate highly charged encounters with aggressive people, using deadly force as a last resort. Citizens, on the other hand, may act from emotion and perceived threats. But “stand your ground” gives citizens the right to use force in public if they feel threatened.
Proponents named it well. “Stand Your Ground” plays upon Western lore and Hollywood mythmaking. It recalls John Wayne and Clint Eastwood, tough men who stood their ground and won the day. This is how the laws' proponents want to see themselves. You get nowhere attacking that.
You should attack the “feel threatened” part. I mean, who doesn't feel threatened? We all do. I do every day. What does that mean? If I were in Florida, could I shoot whoever threatened me? Who I perceived as a threat? Is Yellowbelly, a John Candy character from SCTV, the ultimate proponent of “Stand Your Ground” laws?
Quote of the Day
“Trayvon Martin could have been me 35 years ago. ...
”I think it's important to recognize that the African-American community is looking at this issue through a set of experiences and a history that doesn't go away. There are very few African Americans in this country who haven't had the experience of being followed when they were shopping in a department store. That includes me. There are very few African-American men who haven't had the experience of walking across the street and hearing the locks click on the doors of cars. “That happens to me--at least before I was a senator. There are very few African-Americans who haven't had the experience of getting on an elevator and a woman clutching her purse nervously and holding her breath until she had a chance to get off. That happens often.”
-- Pres. Barack Obama at a White House press briefing, commenting on the Trayvon Martin case, the George Zimmerman verdict, and “Stand Your Ground” laws.
Related: In 2003, when Obama was mistaken for a waiter.
Twitter: @ErikLundegaardTweets by @ErikLundegaard