Speaking of being called to a higher law and speaking of speaking....

In the previous post, we're talking about what Jesus wrote in the sand and what he said out loud, in the New Testament story where the scribes and Pharisees present Jesus with the question of what to do with a woman who was caught in the act of adultery. In the Gospel text, we're told Jesus that wrote on the ground, but not what he wrote, and we're told that he subsequently spoke and said "Let him who is without sin among you be the first to throw a stone at her."

I'm putting up a separate post because I found the scene that sydney said he loved in the movie "The King of Kings." Made in 1927, it's a silent movie, so no one is saying anything out loud. We see what Jesus says written out on the intertitles, and we also see what he writes in the sand.



Beautiful filmmaking, particularly as the sand-words, not written in Roman letters, transform into our English words, naming the sins that the men in the crowd realize they've committed, and that's why they all turn and walk away.

That's not an accurate depiction of what happens in the biblical text though. The movie shows a mob on the verge of stoning the woman and Jesus intervenes and announces his rule about casting the first stone. Only thereafter, does he write the names of the sins in the sand. But in the Bible story, there is no angry mob with stones in hand. There are scribes and Pharisees demanding that Jesus deliver a legal opinion. Jesus bends down and writes on the ground instead of answering the question.  Only after they persist does he stand up and pronounce his new rule, which causes the scribes and Pharisees to walk away — "beginning with the older ones." The movie would have you see the members of the mob acknowledging their sins and their consequent lack of qualification to cast the first stone. But the text has intellectuals trying to box Jesus in on a question of law, and Jesus getting the better of a conversation he didn't want to have in the first place.

It's not surprising that a movie plays up the visible drama, and it's also not surprising that when I — a law professor — read the text, I see something akin to a law school class. The professors try to stump the student and the student transcends their tricky game. To me, the part where Jesus bends over and writes in the sand is like what happens in a law school class when the lawprof poses a difficult hypothetical and the students bend their heads down and go through motions of writing. They don't want to answer. It's not that they're writing something magically revelatory and startling. But if the lawprof keeps pushing and calls on someone, an answer will be spoken out loud.

I guess the law-professorly interpretation of the text isn't terribly cinematic. It's no wonder the movies present an angry mob with stones in hand and Jesus miraculously knowing and changing the hearts of the sinners. (And the adulteress is an actress evincing exactly the form of sexiness that was fashionable in the year the movie was made. I love the eyeliner!)

But to me the lawprof interpretation is thrilling and dramatic. The professors think they've got the upper hand. They know the legal text and it's tough. And then the brilliant student who will soon be the greatest professor of all gets on top of the dialogue and says something they must accept as correct: If you're going to have strict rules and severe mechanisms of enforcement, you must apply them equally to everyone. This is the structural safeguard of equal protection of the laws that is the necessary component of a democratic system. If there can't be exceptions and special treatment for preferred people, legislatures will resist imposing harsh rules and painful punishments.

In this context, let me give you my favorite Justice Scalia quote, which happens to include one of the key words of Christianity: "Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me."

The State of the Union "has turned into a childish spectacle."

"I don’t want to be there to lend dignity to it," said Justice Scalia.

Is government an "impetuous vortex" or a "hideous monster [with] devouring jaws"?

Reading the Obamacare case in class preparation today, I notice those 2 metaphors, both taken from the Federalist Papers, both used in the process of saying that the Commerce Power doesn't support the requirement that everyone buy health insurance. "Impetuous vortex" — from The Federalist No. 48, written by James Madison — is quoted in  Chief Justice Roberts's opinion:

The Government’s theory [of the scope of the commerce power] would erode those limits, permitting Congress to reach beyond the natural extent of its authority, “everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.”

The "hideous monster [with] devouring jaws" — written by Alexander Hamilton in The Federalist No. 33 — appears in Justice Scalia's opinion:

If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, “the hideous monster whose devouring jaws... spare neither sex nor age, nor high nor low, nor sacred nor profane.” The Federalist No. 33, p. 202 (C. Rossiter ed. 1961).

Many have noted that Scalia (joined by Kennedy, Thomas, and Alito) did not join the Roberts opinion on the Commerce Clause, even though they said basically the same thing about it. Their spirit of resistance shows even through their choice of a different Federalist Paper with a different author and a different metaphor for government's voracious maw.

"I think Justice Scalia would correct you and say it was a Saint Thomas More hat, rather than a Sir Thomas More hat."

Said Astro in the comments to the post about the hat Scalia wore to the inauguration.

I responded saying that "the truth is that the reason I used 'Sir' is that it was the caption on the Hans Holbein painting," but the comment got me researching what's the right way to refer to More, and Wikipedia's article begins: "Sir Thomas More... known to Catholics as Saint Thomas More...." So, it seems that the failure to say "Saint" is the shibboleth that reveals that I'm not Catholic. In which case, I don't think Scalia would correct me.

Notice my tendency to reinforce my original choice — which involved little thought — with additional reasons. That's the lawyer instinct. What happened happened, and now that I'm challenged, I furiously brainstorm reasons why it was correct. (What's not lawyer-like is to concede that and display it like this.)

Another reinforcement for my choice is, as I wrote in the comments at the first link:

It's a Sir Thomas More hat, that is, a hat that he wore in his role as a knight. There is no "saint hat," or if there is — maybe you get issued a hat in Heaven — it's not that hat.

It's like, say a cowboy died and was later beatified and we had a picture of him in his cowboy hat. Cowboy Bob. If I adopted his hat, it would be a Cowboy Bob hat, not a St. Bob hat.

I'd like to think Justice Scalia would be intrigued by this language usage question, whether the noun hat calls for the modifier Sir rather than Saint — even for those who revere him as a saint — because it's not a saint hat.

ADDED: Astro did a Google images search for "saint hat," with hilarious results. Before clicking on the link try to guess what 3 types of hats come up most often. It's not this:

Justice Scalia was wearing his Sir Thomas More hat.

Did you notice?

"How likely is it Antonin Scalia will die in the next four years?"

Asks Slate jauntily, offering what it calls "The Supreme Court Justice Death Calculator."

Why are people having so much trouble understanding rhetorical devices?

You may remember Justice Scalia the other day tweaking the kids at Princeton for not being able to handle reductio ad absurdum:

It's a form of argument that I thought you would have known, which is called the 'reduction to the absurd'...

It can't be, of course, that the Princeton students never get argument that comes in the form of taking a principle you know your interlocutor holds dear and presenting him with other things that could fall within the principle that you know he'll object to. It's irritating to be on the receiving end. The one who wields that argument is playing with ideas, fun-loving, and challenging. The one on the receiving end doesn't want to play along. He may get super-serious and offended: How dare you talk about something I hold dear alongside those horrible things that all decent people loathe?! It's an argument with which older, calmer people needle the emotional young.

Scalia never said homosexuality is like bestiality. Here's the passage in his dissenting opinion in Lawrence v. Texas that heats up his opponents:

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are... sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.

Now, it's rhetoric to act like he equated homosexuality with bestiality. It's rhetoric to say — as the Princeton student did — "Do you have any regret or shame for drawing these comparisons you did in your dissents?"

It's rhetoric to respond to that question — a demand for an account of Scalia's inner life — by mocking the student's inability to understand rhetoric. That was cold, intentionally cold. Hey, you Princeton guys are supposed to be smart. But Scalia could have chosen a warmer approach without selling himself out. That question could have been answered:

Actually, I do have feelings and I know that many of the opinions I write upset people, but what would cause me regret or shame would be to let things like that sway me from deciding the cases according to the law. I'm a judge, and when I'm doing my judge work, I have to stick to being a judge. And part of being a judge is to demand that a case express a rule that can be applied to other things that are similar. The question in Lawrence was whether moral feeling, standing alone, is enough to support a law. If the majority was saying no, then it needed to commit to that proposition across the board, and I was testing that, and a test really does need to be sharp and probing. I get that it pains you, but step up and argue with me. Tell me why bestiality is different from the other things on the morality-only list. Actually, it's pretty easy: The animal has feelings. We have feelings. Animals have feelings. Feelings matter. But as a judge, I can't do feelings. Come on, have some empathy for me in my plight!

I've gone on quite long about Scalia, but Scalia wasn't the inspiration for this post. What got me started on this track was the difficulty readers had with 2 of yesterday's posts that entailed the use of rhetorical devices. One consisted of 2 quotes: "What is the gun community going to do about this tragedy?"/"I dunno. What is the gay community going to do about Penn State?" This linked to Instapundit, who provided the source of the quotes and who now has a couple updates that suggest he's getting pushback similar to some of what I see in my long comments thread, e.g., "Professor Althouse, the comparison is absurd, bigoted and offensive any way you cut it. You should be ashamed of yourself for linking to it with approval."

See? Shame on you! I am offended! Come on, think about it. Figure out the puzzle. It's an analogy, pithily phrased, and thus an occasion to pick apart the ways in which the 2 statements are/are not parallel. Many readers in my comments thread did understand the rhetoric and deal with the coherence of the analogy, but many fell into the sort of expression of outrage that's so common and so dull these days. At least show you understand the rhetoric and then tell me it's in bad taste to be humorous and challenging over topics so raw and painful.

The second post that got me started on this topic was the one that linked to this Matt K. Lewis item "The media should be ashamed of its Connecticut coverage." I'd quoted only the last few lines of that piece, where he proposed "some common sense media control." He's doing a twist on the post-Newtown gun control arguments, switching the right under threat from the 2d Amendment to the 1st Amendment. I thought that was clever and thought-provoking, but unfortunately some readers didn't get it. One said: "Professor Althouse, I'm not sure whether you got punked or if you get that this article is satire and are endorsing it's [sic] specious point." Oh, jeez, that's annoying! I like to keep things crisp around here. Are people going to be so dull that all humor will need arrows pointing at it saying it's humor?

Actually, I see that the 2 comments I've selected for quotation here are by the same person. Maybe he's simply pretending to be dull and doing the Theater of Outrage. That's rhetoric too, and I need to get it.

"If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?"

Justice Scalia is out and about, antagonizing — antoninonizing — students, this time at Princeton, with "a form of argument that I thought you would have known, which is called the 'reduction to the absurd.'"

Scalia said he is not equating sodomy with murder but drawing a parallel between the bans on both.

Then he deadpanned: "I'm surprised you aren't persuaded."

[The student] said afterward that he was not persuaded by Scalia's answer. He said he believes Scalia's writings tend to "dehumanize" gays.

Actually, he's humanizing you by crediting you with the capacity to comprehend rhetoric and engage in an on-the-fly verbal interchange. But it is easier to dehumanize your adversary. Afterwards.

What do they teach you at Princeton?

ADDED: Jaltcoh has 3 thoughts about this.

AND: David Lat reminds us about what Judge Posner said about horse meat: "a state is permitted, within reason, to express disgust..."

"Justice Antonin Scalia believes the law can and should enforce moral standards," says David Savage, incorrectly.

In the L.A. Times. Why is it so hard to read Scalia's Lawrence v. Texas dissent? Experts — purported experts — like Savage, insist on seeing something that Scalia directly tells us he is not saying. He says laws may rest on morality, not that they should:

Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best.... I would no more require a State to criminalize homosexual acts – or, for that matter, display any moral disapprobation of them – than I would forbid it to do so....

And by the way, Scalia has already committed to the proposition that Lawrence dictates the end of the exclusion of gay couples from legal marriage:

If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution”? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. 

The majority had claimed that Lawrence did not "involve” the issue of gay marriage, and Scalia said that could only make sense if you think "principle and logic have nothing to do with the decisions of this Court." (Of course, Scalia dissented in Lawrence and may decline to adhere to it, but it won't be because he thinks laws should enforce morality. It will be because he thinks courts should not strike down laws simply because there is no support for them other than morality.)

ADDED: Another post about Scalia, law, and morality, and I rather laboriously spell out some legal distinctions in the comments, here.

"A challenge to a federal law that authorized intercepting international communications involving Americans appeared to face an uphill climb at the Supreme Court..."

"... on Monday, but not one quite as steep as many had anticipated," observes Adam Liptak at the NYT.

The question in the case was whether journalists, lawyers and human rights advocates could show they had been harmed and so had standing to sue, and several justices seemed open to the idea....

The possibility that the courts may never rule on the constitutionality of the law seemed to rankle some of the justices. “Is there anybody who has standing?” Justice Sonia Sotomayor asked....

Justice Antonin Scalia [said] “We’ve had cases in the past where it is clear that nobody would have standing to challenge what is brought before this court... That just proves that under our system of separated powers, it is none of our business.”

Here's the transcript.

Linda Greenhouse is embarrassed for the Supreme Court and for Texas.

After reading/listening to the oral argument in Fisher v. University of Texas.

Roberts and Scalia were obviously trying "to make the university’s commitment to assembling a diverse student body look silly."

"So what you're saying is that what counts is race above all.... You want underprivileged of a certain race and privileged of a certain race. So that's race."

Said Justice Anthony Kennedy at during the oral argument over the the University of Texas affirmative action policy. UT, following state law, automatically admits everyone who graduates from a Texas high school in the top 10%, a colorblind policy that produces a certain amount of racial diversity, especially since there are many high schools in Texas that have a very high proportion of black or Hispanic students.

So why does UT do any additional affirmative action as it fills up the portion of the entering class not admitted through the 10% program? You've already got a lot of diversity, so why do you need more? The additional affirmative action is precisely to bring in privileged black and Hispanic students, that is, the black and Hispanic students who did not attend racially isolated schools. If white students get too many of the top 10% spots at those schools, then the 10% program does not bring enough of these minority students into UT.

The university says... that the highest-ranked students at a disadvantaged school have lower SAT scores than some in the middle of the pack at a more competitive suburban high school. UT's affirmative-action program aims to open doors for minority applicants from middle-class or professional families. Such students can "help dispel stereotypical assumptions…which actually may be reinforced" by minorities admitted only because of the top-10% plan, UT said in its brief.

Justice Samuel Alito seized on that point. "I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don't think I've ever seen before," he said.

Actually, under the Court's case law, the diversity that is considered a compelling interest (which is what the state needs to defend race discrimination) is not about boosting the underprivileged. In Grutter v. Bollinger, the majority approved of the idea of  assembling a class that includes "a 'critical mass' of minority students," which does not mean "racial balancing, which is patently unconstitutional" but is "defined by reference to the educational benefits that diversity is designed to produce."

These benefits are substantial. As the District Court emphasized, the Law School’s admissions policy promotes “cross-racial understanding,” helps to break down racial stereotypes, and “enables [students] to better understand persons of different races.”...These benefits are “important and laudable,” because “classroom discussion is livelier, more spirited, and simply more enlightening and interesting” when the students have “the greatest possible variety of backgrounds.” ...

The Law School does not premise its need for critical mass on “any belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.”... To the contrary, diminishing the force of such stereotypes is both a crucial part of the Law School’s mission, and one that it cannot accomplish with only token numbers of minority students. Just as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters.

If it's about breaking down stereotypes, the 10% approach creates a problem: The minority students in the classroom tend to come from the racially isolated schools, the less privileged Texans. So, it seems, the additional affirmative action is needed to get a more varied group of minority students, in which case, the point is to bring in privileged minority students, because these are the students who — in Grutter terms — might provide the classroom benefit of teaching all the students that minority students don't have "some characteristic minority viewpoint."

Obviously, there were dissenting opinions in Grutter. For example, Justice Scalia scoffed at that idea of the compelling interest: The lesson taught by classroom diversity is "essentially the same lesson taught to (or rather learned by, for it cannot be 'taught' in the usual sense) people three feet shorter and twenty years younger than the full-grown adults at the University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school kindergartens."

I'm not taking a position on whether UT's admissions policy is good or whether it's constitutional. (Do not assume you know what I think. You don't.) All I am saying is that if Grutter is to be applied (and not limited or overruled), an affirmative action program that's all about boosting the most privileged minority students actually makes sense.

Did Justice Alito not see that (or was he mainly expressing disapproval)? Here's his quote (along with Justice Kennedy's), put in context, beginning at page 43 of the PDF transcript:

JUSTICE ALITO: Well, I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don't think I've ever seen before. The top 10 percent plan admits lots of African Americans -- lots of Hispanics and a fair number of African Americans. But you say, well, it's -- it's faulty, because it doesn't admit enough African Americans and Hispanics who come from privileged backgrounds. And you specifically have the example of the child of successful professionals in Dallas. Now, that's your argument? If you have -­ you have an applicant whose parents are -- let's say they're -- one of them is a partner in your law firm in Texas, another one is a part -- is another corporate lawyer. They have income that puts them in the top 1 percent of earners in the country, and they have -­ parents both have graduate degrees. They deserve a leg-up against, let's say, an Asian or a white applicant whose parents are absolutely average in terms of education and income?

[GREGORY G. GARRE, counsel for the University of Texas]: No, Your Honor. And let me -­ let me answer the question. First of all, the example comes almost word for word from the Harvard plan that this Court approved in Grutter and that Justice Powell held out in Bakke.

JUSTICE ALITO: Well, how that question be no, because being an African American or being a Hispanic is a plus factor.

MR. GARRE: Because, Your Honor, our point is, is that we want minorities from different backgrounds. We go out of our way to recruit minorities from disadvantaged backgrounds.

JUSTICE KENNEDY: So what you're saying is that what counts is race above all.

MR. GARRE: No, Your Honor, what counts is different experiences -­

JUSTICE KENNEDY: Well, that's the necessary -- that's the necessary response to Justice Alito's question.

MR. GARRE: Well, Your Honor, what we want is different experiences that are going to -- that are going to come on campus -­

JUSTICE KENNEDY: You want underprivileged of a certain race and privileged of a certain race. So that's race.

MR. GARRE: No, Your Honors, it's -- it's not race. It's just the opposite. I mean, in the LUAC decision, for example, this Court said that failing to take into account differences among members of the same race does a disservice -­

JUSTICE KENNEDY: But the reason you're reaching for the privileged is so that members of that race who are privileged can be representative, and that's race. I just -­

MR. GARRE: It's -- it's members racial group, Your Honor, bringing different experiences. And to say that -- if you took group, if you had an admissions process that to admit from a -- people from a particular background or perspective, you would want people from different perspectives.

CHIEF JUSTICE ROBERTS: Counsel -­

MR. GARRE: And that's -- that's the interests that we're discussing here. It's the interests that the Harvard plan specifically adopts and lays out -­

"The death penalty? Give me a break. It's easy. Abortion? Absolutely easy."

"Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state."

And it's easy to reel off statements like that if you're Antonin Scalia. He's got a theory that makes so many of the cases that are hard for others easy. And he seems to have a grand time traveling about telling people so.

"Years ago, I knew two kids. One was a tall and wispy twerp whose arrogance exceeded his stratospheric brilliance."

"The other was a squat punk whose beautiful mind spewed quips like switchblades."

By three orders of magnitude, these two were far smarter than the rest of us.

It was on the playground where they struggled. The twerp found that being haughty prompted a vigorous ass kicking. The punk learned that being mouthy got you pantsed in front of the girls. But, over time, the playground changed them. Each kid started to act normally. With that, the rest of us came to respect and even appreciate them. More importantly, their socialization prompted us to consider what they had to say.

Maybe I’m wrong, but perhaps Posner and Scalia (and their snarly stand-ins) should visit a playground.

The writer of that snark is himself a federal judge, I note — with a nudge to a colleague of mine who was chastising me for analyzing the psychology of judges. (How do I know their motives? I don't. I speculate!)

But I'm fascinated to see a judge opine that other judges are guys who failed to get enough bullying when they were kids! Who's exercising the momentous power to say what they law is and inflict their opinion on the rest of us? Abnormal people who could've used a good ass-kicking... a good pantsing in front of the girls.

"Well, at least one person is getting annoyed by the endless back and forth between Posner and Scalia."

"But that’s just one person. We’ll continue to beat that horse until it’s extra dead."

I must say I find the ongoing back and forth between these 2 judges irritating.

Both know what the other is saying, which is what he's been saying for years. Why must they act out their diva drama in public… if TNR may be considered public.

"The Republicans are smart enough to get the ‘pope of America,’ and the Democrats are stupid enough not to invite him."

"The Catholic vote is the most critical vote. They’re the wild card... So, why wouldn’t you ingratiate yourself to the pope of America and send a wink and a nod to Catholics?"

Who's the "pope of America"? It's Archbishop of New York Timothy Dolan:

He's also a scholar and a passionate defender of the church's traditional views on what he calls "settled questions." If you've ever wondered why exactly the Catholic church opposes gay marriage and ordination of women as priests, listen to Dolan articulate the church's beliefs. It's far from a simple matter of saying "no."...

For example, here's the archbishop on gay marriage: "I have a strong desire to play shortstop for the Yankees. I don't have a right to because I don't have what it takes. And that would be what the church would say about marriage."

I was playing the video on that, and Meade said: "He sounds like Scalia." And I said: "That's what I thought!"

And here's Dolan arguing against the ordination of women as priests: "Jesus gave women positions of responsibility. The only ones at the foot of the cross except for St. John? Women. The people that discovered his resurrection? Women. The people that were with him on his journeys? Women. People say, 'This guy was kind of a pioneer in women's rights.' So, if he were going to intend them for the priesthood, he woulda done it. And he didn't."

Got that?

"If my rule-breaking is ethical and safe (and Idaho-legal), why does it annoy anyone?"

Asks Randy Cohen, the original NYT "ethicist," who admits to treating stop signals as yield signals when he's on his bicycle.

I choose my riding style mindful of my own safety and that of my neighbors, but also in pursuit of happiness. Uninterrupted motion, gliding silently and swiftly, is a joy. 

And you ask why it annoys anyone! There will always be some people who are annoyed by somebody else having fun — you know, the people H.L. Mencken was knocking when he defined Puritanism as "The haunting fear that someone, somewhere, may be happy." But there's something else about rule-following that matters. If there's a system of rules, individuals can always subjectively, flexibly, pragmatically spin out all sorts of applicable exceptions that let them do what they want. Randy Cohen has used his big brain to determine that he's right about the unnecessary severity of the rule in this case, but he's promoting a style of thinking, an approach to ethics, that others will use in all sorts of self-serving ways. If we're not going to follow the rules anymore... then what?

Interestingly, Cohen ends his little essay with a quote from Supreme Court Justice Stephen Breyer, who, we're told sometimes bikes to work:

“The advantages? Exercise, no parking problems, gas prices, it’s fun. An automobile is expensive. You have to find a place to park and it’s not fun. So why not ride a bicycle? I recommend it.” 

Now, Breyer isn't saying anything about whether or not he follows the rules, and Cohen seems to be injecting relevance by quipping: "I don’t know if he runs red lights. I hope so." But if you know a few things about Supreme Court Justices and their theories of interpretation, you shouldn't think Cohen dragged in Breyer because he's some random celebrity who, like Cohen, bikes for fun.

Breyer is not a rules guy:

Breyer has six interpretive tools—text, history, tradition, precedent, the purpose of a statute, and the consequences. In his view, it's a mistake to ignore the last two. Scalia replies that to look at either the purpose or the consequence of a statute is to invite subjectivity and beg the question.

And yet, Scalia admits he's "exceeded the speed limit on — on occasion."

PIERS MORGAN: Have you ever been caught?

SCALIA: Oh, yes. I've gotten tickets. None -- none recently.

MORGAN: That's it? That's -- that's the only criminal act..

SCALIA: Yes. I...

MORGAN: -- in your life?

SCALIA: -- I am pretty much a law-abiding sort.

MORGAN: I like the phrase "pretty much." It gives me somewhere to go.

SCALIA: No I -- I'm a law-abiding citizen.

6 highlights from Chris Wallace's great interview with Justice Scalia.

From the transcript of this morning's Fox News Sunday (and video).

1. Obamacare. Since Scalia is on the show to promote his new book, Wallace duly begins with a quote from the book: "A statute should be interpreted in a way that avoids placing its constitutionality in doubt." Now, doesn't that undercut Scalia's criticism of Chief Justice Roberts's decision in the Obamacare case? Roberts found that what was called a "penalty" (for failure to acquire health insurance) was actually a tax, and reading the statute that way avoided the constitutional problem. Scalia responded that his principle of interpretation only allows the judge "to find a meaning that the language will bear":

You don't interpret a penalty to be a pig. It can't be a pig. And what my dissent said in the... Affordable Care Act was simply that there is no way to regard this penalty as a tax. It simply doesn't bear that meaning. You cannot give -- in order to save the constitutionality, you cannot give the text a meaning it will not bear.

How does one know what the language will bear and will not bear? Yes, it's not a pig, but why isn't it a tax? There wasn't any pursuit of that line of inquiry, but later in the interview, Wallace came back to the case, that time to ask about the new reports that said Roberts changed his mind in the middle of working on the Obamacare opinion. Wallace introduced the topic by asking if Scalia himself had ever changed his mind after voting in conference. Scalia said:

I have not only done that, I have changed my mind after have been assigned to write the majority opinion. I've written the opinion the other way, it just wouldn't write.... There is... nothing wrong with that.

Wallace then asked "Did Chief Justice Roberts change his mind in the ObamaCare case?" Scalia says he doesn't know — "You'll have to ask him." And Wallace tries again, asking whether at some point Scalia had a majority. Again, Scalia refuses: "I don't talk about internal court proceedings." Wallace resorts to the cutesy: "Just this once?" And Scalia responds in a similarly childish form: "No, never ever. Never ever." But when Wallace accepts the pushback and just says "OK," Scalia opens up:

And, listen, those who do, you shouldn't believe what you read about internal court proceedings, because the reporter who reports that is either: A, lying, which can be done with impunity, because as you know, we don't respond. It's the tradition of common law judges to lay back and take it. You don't respond in the press. Or B, that reporter had the information from some who was [sic] breaking the oath of confidentiality, which means that's an unreliable person. So, either way, you should not -- you should not put any stock in reports about what was going on in the secrecy of the court.

Take that Jan Crawford!

2. Second Amendment. Wallace asked about the scope of the right protected by the Second Amendment (which the Supreme Court did not detail in Heller). Scalia says:

What the opinion Heller said is that it will have to be decided in future cases. What limitations upon the right to bear arms are permissible. Some undoubtedly are, because there were some that were acknowledged at the time. For example, there was a tort called affrighting, which if you carried around a really horrible weapon just to scare people, like a head ax or something, that was I believe a misdemeanor.... My starting point and ending point probably will be what limitations are within the understood limitations that the society had at the time. They had some limitation on the nature of arms that could be born. So, we'll see what those limitations are as applied to modern weapons. 

It's clear, he says, as a matter of textualism, that the Second Amendment doesn't "apply to arms that cannot be hand-carried." But that doesn't mean it does apply to everything that can be hand-carried, for example, "handheld rocket launchers that can bring down airplanes." These are matters yet to be decided.

3. "How political is the court?" Scalia — unsurprisingly — says the Court isn't political at all, even though these days, the conservative/liberal split aligns with Republican appointees and Democratic appointees:

That... shows that they had been selected because of their judicial philosophy. The Republicans have been looking for, you know, originalist and textualist and restrained judges for 50 years. And the Democrats have been looking for the opposite, for people who believe in Roe versus Wade. Why should it be a surprise that after, you know, assiduously trying to get people with these philosophies, they end up with th[ese] philosophies?

4. Obama and the Court. Wallace invited Scalia to comment on Obama's criticizing the Supreme Court, first with video of 2010 State of the Union speech with Obama calling out the Justices who were sitting right in front of him. Scalia said that's why he doesn't attend. Second, Wallace showed video of Obama "jawboning" the Court while the Obamacare case was pending. Scalia called it "unusual" — "But as I say, I don't criticize the president publicly and he normally doesn't criticize me."

WALLACE: Did you feel any pressure as a result of that to vote a certain way?

SCALIA: Yes. What can he do to me? Or to any of us? We have life tenure and we have it precisely so that we will not be influenced by politics, by threats from anybody.

The "yes" didn't mean "yes" other than yes, I get what you're asking. It was absolutely clear in the video that he didn't feel at all threatened.

WALLACE: Did you view that as a threat?

SCALIA: I didn't view it as a threat. I'm not even sure I heard it.

WALLACE: Well, you heard it now.

SCALIA: You brought it to my attention.

Ha ha. That was a little theater, acting out his attitude that the President is over there in his branch, doing whatever it is he does, and I'm here in mine, fully insulated.

5. Dissing Judge Posner. Wallace quoted Posner's saying that part of Scalia's dissenting opinion in the Arizona immigration case had "the air of a campaign speech." Scalia went comically snobby:

SCALIA: He is a court of the appeals judge, isn't he?

WALLACE: Yes.

SCALIA: He doesn't sit in judgment of my opinions as far as I'm concerned.

WALLACE: You sit in judgment of his opinion?

SCALIA: That's what happens.

Wallace commented that Scalia knew how to "push people's buttons," and Scalia said "It's fun to push the buttons." Wallace pursued him — "Is it?... Why" — and Scalia basically says Posner started it: "When Richard Posner comes out with a statement like that, I should fire back a statement equally provocative."

6. He's 76, but is he a fool?

WALLACE: You are 76 years old. Will you time your retirement so that a more conservative president can appoint a like-minded justice?

SCALIA: I don't know. I haven't decided when to retire.

WALLACE: But I mean, does it go through your mind, if I retire, I'd like to see, since you talk about Republicans appointing one kind of justice and Democrats another, that you would want somebody who would adhere to your view...?

SCALIA: No, of course, I would not like to be replaced by someone who immediately sets about undoing everything that I've tried to do for 25 years, 26 years, sure. I mean, I shouldn't have to tell you that. Unless you think I'm a fool.

See how cagey Wallace was? Scalia didn't want to answer the question about timing his retirement to give the appointment to a conservative President, but then Wallace asked the question a different way, referring to the earlier discussion about why it seems — wrongly! — that the Court is political, and that caused Scalia to give the answer, which is of course he's going to time it. It amused me that he tacked on the ending "Unless you think I'm a fool," because Wallace actually did fool him into answering the question he didn't want to answer and because Wallace extracted that answer — which makes Scalia look political — by referring to the earlier discussion of why the Court looks political — but isn't!

Brian Lamb asks Justice Scalia why he's "so sensitive."

Why are you judges so sensitive about what they say when they have life tenure?



Scalia says everything he has to say is in the opinions, and it's fine for people to "paw over" the opinions, but he doesn't need to be there while us animals do that.

And here he is on cameras in the Supreme Court:



Basically, his point is the public would get "educated" if they'd look at the video the right way, which is watch all of the arguments on all of the cases, including all the really boring things about ERISA and so forth. But since the video would end up in edited sound bites, that would not be educational, and therefore we shouldn't be allowed to get our hands — should I say paws? — on it.

My position, you may remember, is that video would impose some accountability on the Justices, who do, as Lamb noted, have life tenure and may very well stay beyond the point of competency. Obviously, the written opinions aren't much good in this regard, since the Justices have excellent help writing the opinions.