R.I.P Justice Scalia

[Jim Butler]

(No more Matthew Becker like hasty and unlawful expulsions, please)   

Peace, JOHN

What was so hasty about it?

And what was "unlawful"?

[Michael Slusser]

There is nothing wrong with trying to "revise" the constitution. That is what amendments do.

That's right.  But it's not what justices do.  Or at least it's not what they are supposed to do.

Justice Scalia's dissents are legendary, but one of his greatest was PGA v. Martin, where he excoriated the 7 member majority, using both wit and ridicule.  I think my favorite argument is where he discussed the august Court weighing the prominent and heart-rending issue of whether walking is as essential to golf as having a 3-inch cup or 18 holes.  His parting shot:

"Complaints about this case are not "properly directed to Congress," ante, at 27-28, n. 51. They are properly directed to this Court's Kafkaesque determination that professional sports organizations, and the fields they rent for their exhibitions, are 'places of public accommodation' to the competing athletes, and the athletes themselves 'customers' of the organization that pays them; its Alice in Wonderland determination that there are such things as judicially determinable 'essential' and 'nonessential' rules of a made-up game; and its Animal Farm determination that fairness and the ADA mean that everyone gets to play by individualized rules which will assure that no one's lack of ability (or at least no one's lack of ability so pronounced that it amounts to a disability) will be a handicap. The year was 2001, and 'everybody was finally equal.' K. Vonnegut, Harrison Bergeron, in Animal Farm and Related Readings 129 (1997)."

The Court meddling where it ought not is what Scalia spent a career fighting against.  As a friend said the night he passed, "a life dedicated to answering a simple question: who decides?"

Yeah, that's a classic! Did Justice Scalia think that certiorari was improvidently granted? Or did he think that the Americans with Disabilities Act (if that was the statute at issue) should have required a different outcome?

Peace,
Michael

[Michael Slusser]

I see no statement yet from the USCCB, but the Archbishop of Washington, Cardinal Donald Wuerl, issued this brief statement:

Saturday, February 13, 2016

It was with great sorrow that I learned today of the death of U.S. Supreme Court Justice Antonin Scalia. I admired his strong and unwavering faith in the Lord and his dedication to serving our country by upholding the U.S. Constitution. Each year at our cathedral, the Red Mass is celebrated on the Sunday before the beginning of the Supreme Court's annual term to invoke God's blessings on those responsible for the administration of justice. Justice Scalia attended each year. I offer my prayers and sympathy to his wife Maureen and their family and ask the Lord to grant him eternal rest.

Peace,
Michael

[James_Gale]

There is nothing wrong with trying to "revise" the constitution. That is what amendments do.

That's right.  But it's not what justices do.  Or at least it's not what they are supposed to do.

Justice Scalia's dissents are legendary, but one of his greatest was PGA v. Martin, where he excoriated the 7 member majority, using both wit and ridicule.  I think my favorite argument is where he discussed the august Court weighing the prominent and heart-rending issue of whether walking is as essential to golf as having a 3-inch cup or 18 holes.  His parting shot:

"Complaints about this case are not "properly directed to Congress," ante, at 27-28, n. 51. They are properly directed to this Court's Kafkaesque determination that professional sports organizations, and the fields they rent for their exhibitions, are 'places of public accommodation' to the competing athletes, and the athletes themselves 'customers' of the organization that pays them; its Alice in Wonderland determination that there are such things as judicially determinable 'essential' and 'nonessential' rules of a made-up game; and its Animal Farm determination that fairness and the ADA mean that everyone gets to play by individualized rules which will assure that no one's lack of ability (or at least no one's lack of ability so pronounced that it amounts to a disability) will be a handicap. The year was 2001, and 'everybody was finally equal.' K. Vonnegut, Harrison Bergeron, in Animal Farm and Related Readings 129 (1997)."

The Court meddling where it ought not is what Scalia spent a career fighting against.  As a friend said the night he passed, "a life dedicated to answering a simple question: who decides?"

Yeah, that's a classic! Did Justice Scalia think that certiorari was improvidently granted? Or did he think that the Americans with Disabilities Act (if that was the statute at issue) should have required a different outcome?

Peace,
Michael

It's hard to say whether Justice Scalia supported the grant of certiorari.  The Supreme Court affirmed the ruling of the Court of Appeals.  Thus, Scalia obviously disagreed with the ruling below.  However, that is not the standard for supporting certiorari.  More often than not, even when a justice disagrees with a ruling below, that justice opposes certiorari.  The Supreme Court takes relatively few cases and is careful in selecting them.  Thus, even though he disagreed with the Ninth Circuit's ruling, it's possible that Justice Scalia would have been content to let it stand.


Here's a link to Justice Scalia's dissent, which begins as follows:

In my view today's opinion exercises a benevolent compassion that the law does not place it within our power to impose. The judgment distorts the text of Title III, the structure of the ADA, and common sense. I respectfully dissent.

[John_Hannah]

(No more Matthew Becker like hasty and unlawful expulsions, please)   

Peace, JOHN

What was so hasty about it?

And what was "unlawful"?

HASTY:  There were only a couple of months from the "pronouncement" on social media to suspension.

UNLAWFUL: Not based on the "original constitution" (that is, The Book of Concord).

Peace, JOHN

[David Garner]

There is nothing wrong with trying to "revise" the constitution. That is what amendments do.

That's right.  But it's not what justices do.  Or at least it's not what they are supposed to do.

Justice Scalia's dissents are legendary, but one of his greatest was PGA v. Martin, where he excoriated the 7 member majority, using both wit and ridicule.  I think my favorite argument is where he discussed the august Court weighing the prominent and heart-rending issue of whether walking is as essential to golf as having a 3-inch cup or 18 holes.  His parting shot:

"Complaints about this case are not "properly directed to Congress," ante, at 27-28, n. 51. They are properly directed to this Court's Kafkaesque determination that professional sports organizations, and the fields they rent for their exhibitions, are 'places of public accommodation' to the competing athletes, and the athletes themselves 'customers' of the organization that pays them; its Alice in Wonderland determination that there are such things as judicially determinable 'essential' and 'nonessential' rules of a made-up game; and its Animal Farm determination that fairness and the ADA mean that everyone gets to play by individualized rules which will assure that no one's lack of ability (or at least no one's lack of ability so pronounced that it amounts to a disability) will be a handicap. The year was 2001, and 'everybody was finally equal.' K. Vonnegut, Harrison Bergeron, in Animal Farm and Related Readings 129 (1997)."

The Court meddling where it ought not is what Scalia spent a career fighting against.  As a friend said the night he passed, "a life dedicated to answering a simple question: who decides?"

Yeah, that's a classic! Did Justice Scalia think that certiorari was improvidently granted? Or did he think that the Americans with Disabilities Act (if that was the statute at issue) should have required a different outcome?

Peace,
Michael

I don't know about cert, but he definitely thought the ADA not only did not compel that result, but in fact foreclosed it.  The essence of it is this -- the Court melded two different provisions, the first dealing with employers and protecting employees and the second with public accommodations and protecting customers, and used the "sweeping purpose of the Act" to fashion a remedy.  The Court found that Martin was a "customer" of the PGA.  Scalia said Martin was an independent contractor, and finding him to be a "customer" was absurd (he was right about that).  He said since he is not an employee, the ADA doesn't cover him under Title I, and since he is not a customer the ADA doesn't cover him under Title III.

But the better argument, and the one I cite above, is that even if one found the ADA ought to apply, how does the Court fashion a remedy to determine what is and is not essential to a game with made up rules that are completely arbitrary?  It's not the same as saying one must be able to see in order to be a motorcycle cop, but it's also not quite the same as saying one can still be a desk cop if one must sit at the desk in a wheelchair.  That's because there are specific duties required of those jobs, and the Court can fashion a remedy by determining whether a reasonable accommodation is possible.

But in this case, what is a "reasonable accommodation" for a professional golfer?  Let's say a woman wants to play on the mens' tour.  Can she demand to hit from the ladies tees?  May she use an otherwise illegal club?  May she play with a handicap of, say, 10 strokes?  How is that even judicially determinable?  As Scalia said, his opinion was not that the PGA should not fashion a remedy for Martin.  He noted even professional golfers differ widely on that question.  The question was whether the ADA compels the PGA to fashion such a remedy, and barring one, whether the Court therefore could mandate one.  He answered that, properly IMHO, in the negative.

[peter_speckhard]

(No more Matthew Becker like hasty and unlawful expulsions, please)   

Peace, JOHN

What was so hasty about it?

And what was "unlawful"?

HASTY:  There were only a couple of months from the "pronouncement" on social media to suspension.

UNLAWFUL: Not based on the "original constitution" (that is, The Book of Concord).

Peace, JOHN

Whom does the "constitution" (i.e. the BoC) entrust to determine whether a teaching or ruling is based on the BoC? Is anyone who says he is teaching according to the Confessions thereby automatically correct about that? Is it possible to remove anyone from the clergy roster if they personally believe their teaching is in accord with the BoC. Because I am closely connected to two former LCMS pastors who swore/swear that nothing they taught contradicted the Confessions while the LCMS concluded otherwise, and in both cases my guess is that you would agree with the LCMS. 

[Michael Slusser]

Scotusblog has marshaled the 20th century data about Supreme Court appointments in election years:
http://www.scotusblog.com/2016/02/supreme-court-vacancies-in-presidential-election-years/

In short, there is no precedent for letting a seat remain vacant in an election year.

Peace,
Michael

[James_Gale]

Scotusblog has marshaled the 20th century data about Supreme Court appointments in election years:
http://www.scotusblog.com/2016/02/supreme-court-vacancies-in-presidential-election-years/

In short, there is no precedent for letting a seat remain vacant in an election year.

Peace,
Michael

My very strong bet is that such a precedent will exist by the end of 2016.  The Senate obviously is not bound by this kind of precedent.  Moreover, if they think they need it, comments by Democratic senators at the end of the Bush years provide rhetorical cover to Republicans who want to "give the voters a voice" in determining the Court's direction.[size=78%]  [/size]

[John_Hannah]

Whom does the "constitution" (i.e. the BoC) entrust to determine whether a teaching or ruling is based on the BoC? Is anyone who says he is teaching according to the Confessions thereby automatically correct about that? Is it possible to remove anyone from the clergy roster if they personally believe their teaching is in accord with the BoC. Because I am closely connected to two former LCMS pastors who swore/swear that nothing they taught contradicted the Confessions while the LCMS concluded otherwise, and in both cases my guess is that you would agree with the LCMS.

Justice Scalia would probably say, then amend your constitution. If he wouldn't I will say it, "Amend the constitution."

Peace, JOHN

[peter_speckhard]

Whom does the "constitution" (i.e. the BoC) entrust to determine whether a teaching or ruling is based on the BoC? Is anyone who says he is teaching according to the Confessions thereby automatically correct about that? Is it possible to remove anyone from the clergy roster if they personally believe their teaching is in accord with the BoC. Because I am closely connected to two former LCMS pastors who swore/swear that nothing they taught contradicted the Confessions while the LCMS concluded otherwise, and in both cases my guess is that you would agree with the LCMS.

Justice Scalia would probably say, then amend your constitution. If he wouldn't I will say it, "Amend the constitution."

Peace, JOHN

Who? How? How will we know it is sufficiently amended? The simple fact is that if it is not the responsibility of the church to determine if a particular doctrine or practice is in accord with the confessions, then they aren't worth the paper they're printed on.

Paul Bretscher is in very poor health, but for years after he published Christianity's Unknown Gospel he maintained that nothing in his teaching contradicted the Confessions. Nothing can be done about that by your understanding. It would always be unlawful to remove him because according to him he didn't violate the confessions.

You might say the case is different because Bretscher actually did violate the Confessions while Becker did not. But that is your opinion, not the opinion of the LCMS.

[Steven W Bohler]

Whom does the "constitution" (i.e. the BoC) entrust to determine whether a teaching or ruling is based on the BoC? Is anyone who says he is teaching according to the Confessions thereby automatically correct about that? Is it possible to remove anyone from the clergy roster if they personally believe their teaching is in accord with the BoC. Because I am closely connected to two former LCMS pastors who swore/swear that nothing they taught contradicted the Confessions while the LCMS concluded otherwise, and in both cases my guess is that you would agree with the LCMS.

Justice Scalia would probably say, then amend your constitution. If he wouldn't I will say it, "Amend the constitution."

Peace, JOHN

Don't the bylaws, in effect, do that?  Well, not amend it but explain how it is to be applied.  And weren't the bylaws followed?

[Norman Teigen]

Here is a link to a fascinating review of Scalia's concept of originalism.   http://www.newyorker.com/news/news-desk/scalias-contradictory-originalism?intcid=mod-yml

[James S. Rustad]

Justice Scalia was a strict constructionist concerning the U.S.  Constitution.
He interpreted it according to the original meaning of the words in this
document.  Obviously, his voice was one of letting the Constitution interpret
itself.  May his contribution to the Supreme Court be remembered as one
who respected the Constitution and did not try to revise it.

There is nothing wrong with trying to "revise" the constitution. That is what amendments do.

And again you persist in misreading and misrepresenting another's comments.  There is a HUGE difference in attempting to "revise" the constitution by re-interpreting the language to mean what you want and amending it.  The twisting of other's comments in this thread decreases my respect for you even more than any of your previous comments have.

[Charles Austin]

So we have the Constitution. And we have amendments to it, those amendments having exactly the same "standing" in law as the Constitution itself. If that is not "revising" the Constitution, then what in the name of Aunt Gertie's goat is it?
Furthermore, "interpretations" of the constitution by the courts have varied.
But I despair... BFN