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from: Dahlia Lithwick
to: Walter Dellinger

Scalia Makes My Face Hurt

Posted Thursday, June 20, 2002, at 7:18 PM ET

Who are these people?

Dear Walter,

First off, congratulations on your impressive victory in Utah v. Evans, the Census case! You must be thrilled to have helped North Carolina score a congressional seat from Utah. To me, the most striking aspect of this case is that tiny fractions of a single percentage point of the population can so radically alter the apportionment of congressional seats. That'll teach Utahans to stay home next time the Census people come 'round.

I know you're swamped today but I've been obsessively rereading the opinion in Atkins v. Virginia—prohibiting the execution of the mentally retarded as cruel and unusual punishment. Like everyone else, I've been struck by the scorching dissents. Justice Scalia read his from the bench and his disgust with the majority reasoning made my face hurt. My, but he does have a way of making his arguments seem flawless and dispassionate, even when—as is the case here—he's completely and thoroughly pissed off. Scalia's greatest gift as a jurist is his ability to almost persuade anyone who differs with him on any issue, that it's merely due to the fact they are colossal and irredeemable morons.

Justice Stevens' majority opinion gets the job done, but barely. As Chief Justice Rehnquist points out in his dissent, there is far too much chatter in the system about how this and that group feel about executing the mentally retarded. Both Rehnquist and Scalia point out that arguments about how the rest of the world condemn us as barbaric are constitutionally immaterial. To quote Scalia's dissent:

But the Prize for the Court's Most Feeble Effort to fabricate "national consensus" must go to its appeal (deservedly relegated to a footnote) to the views of assorted professional and religious organizations, members of the so-called "world community," and respondents to opinion polls. … I agree with the Chief Justice … that the views of professional and religious organizations and the results of opinion polls are irrelevant. Equally irrelevant are the practices of the "world community," whose notions of justice are (thankfully) not always those of our people.

It's just not a good day at the office unless you get a slam in on that world community …

The reason Stevens gets it right has nothing to do with world consensus though. Eighth Amendment jurisprudence allows the court to take "evolving standards of decency" into account, and, yes, it also allows the judgment of the court to factor into that calculus. At its heart, the dissent plays the same stupid math tricks they played at oral argument. They try to say that only 18 states oppose executing the mentally retarded by totally ignoring those 12 states that ban capital punishment altogether. Scalia factors those 12 states out of his calculations—suggesting that they're somehow agnostic as to this issue. The trick implicit is transparent: Scalia wants us to assume those 12 states have no ethical problem executing the mentally retarded, despite the fact that they're unwilling to execute anyone. This is disingenuous to the point of being laughable.

But underpinning much of Justice Scalia's furious dissent is his objection to ever taking evolving standards of anything into account for constitutional purposes. Suggesting that human standards of decency are so fluid as to be without meaning, he cites to the almost 120-year progression in this country (starting in 1846) toward banning capital punishment altogether; a trend which has reversed itself in the recent past. To Scalia this reveals "the peril of riding a trend, but also the peril of discerning a consensus where there is none." Of course, applying his logic, there can never be a national consensus about anything, since even 120 years of evolving values, might always jog back to the morality of the framers. Who knows? We may still find a place in our hearts for reinstating public floggings outside the Super Kmart.

Professor Richard Garnett just wrote a thoughtful piece in the National Review suggesting the court's real sin in Atkins was arrogating legislative power to itself, instead of allowing the states to decide this issue. Which sounds nice, but suggests that the interpretation of the Eighth Amendment is to be decided solely by majority rules. Did I miss that day of Con. Law?

I look forward to more "off-the-top-of-your-head Internet writing" on Monday. Not to worry, I don't think it precludes anyone from being on any high court short-list. I think you need to appear on Celebrity Boxing before that happens.

Dahlia

the breakfast table
entries
12345678910111213141516
from: Dahlia Lithwick
to: Walter Dellinger

Scalia Makes My Face Hurt

Posted Thursday, June 20, 2002, at 7:18 PM ET
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Walter Dellinger is an attorney in Washington, D.C. and the Douglas B. Maggs professor of law at Duke. Dahlia Lithwick is a Slate senior editor.
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Notes From the Fray Editor:

The Breakfast Table Fray has remained a shining example for all. The Table moved from discussions of the merits of Atkins to broader discussions of the nature of court representation. The Fray moved along with it. Several incisive debates about the nature of contemporary judicial federalism and Dellinger's "rule of three" have ensued. One of the best Frays ever began with Dira Necessitas's supposition that Lithwick would stop her Scalia-bashing—a harmless introduction to a fascinating juridico-psychoanalysis (or psycho-juridical analysis).

Notes From the Fray:

[Dellinger] has the good sense to understand that judicial overreaching is not a liberal or a conservative problem but an institutional one that should be resisted by everyone who has a shred of faith in democracy and, in particular, in the increasingly quaint idea that popular legislatures should make legislative decisions….

There is a longer-term insidious consequence of judicial overreaching, too, that takes the form of executives and legislatures dallying about nearly everything really controversial in the hope -- increasingly realized -- that they will be relieved of the hot potatoes by the courts, especially the SCOTUS.

-- Publius

(To reply, click here.)


I challenge [Lithwick's] shorthand characterization of that Federalism jurisprudence as "efforts at curbing congressional overreaching (often to give powers back to the states)".

That portrays some of the less controversial of the Court's Federalist opinions. But the most controversial and decidedly activist sequence of the Federalist opinions -- their so-called Eleventh Amendment jurisprudence, named for the Amendment that they now admit does not say what they earlier said it says -- has nothing to do with Congressional overreaching. The issue in the cases I was referring to in the quoted paragraphs above (including the case that the Court agreed this morning to hear) and which I believe Dellinger was referring to did not concern federal legislation whose purpose was to usurp for the federal government powers traditionally held by the states. The statutes at issue have broad applicability not just to state governments but to private entities also.

The Court's conservative narrow majority says the Constitution protects states from being subject to such legislation, this notwithstanding their recent acknowledgment that the text of the Constitution actually contains no such protection.

-- Beverly Mann

(To reply, click here.)


Let's apply Dellinger's analysis to Castillo's streak. The reason that the "Latin American record" was noted and celebrated was that it matters enormously to an important group of baseball fans - Latin Americans in their native countries. Prowess in baseball is an important signal to many in those countries that they belong (maybe more important than prowess in soccer, because the Dominican Republic et al. have great success in placing players in the best professional baseball league). That's why people in Latin American countries know which Latin American players have the most career hits, career wins, the best batting average, etc. Until they stop paying attention to the success of Latin American players compared to other Latin American players, then it's reasonable for baseball to do so, even under Dellinger's analysis.

Besides, it's good marketing.

-- randy khan

(To reply, click here.)

(7/25)

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