He didn't actually say that, and I'm not sure how it spread.
However, he's still a terrible person, and here's the quote yours spawned from:
“There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.”
edit: This was originally in reply to a misquote that has now been deleted. Mods have now made it a parent comment.
The combination of incivility and internet buzzphrase is toxic for HN. Please don't do this when commenting here, regardless of how you feel about someone.
Just on a purely objective level, isn't "terrible" a reasonable adjective to describe someone who wrote this?
“There is no basis in text, tradition, or even in
contemporary practice (if that were enough), for finding
in the Constitution a right to demand judicial
consideration of newly discovered evidence of innocence
brought forward after conviction.”
Scalia could easily have stated that the Eighth Amendment's prohibition of cruel and unusual punishment would apply to a case where a defendant was denied the benefit of evidence discovered after conviction. No one could possibly have argued with that reasoning, or with his right to apply it. But he didn't.
A good person would have done a very different thing.
If I may, I respectfully disagree in this particular case.
If you deny, capriciously, justice to wrongfully convicted humans, it is not just something you write about. It is that you personally are this person who denies these people justice for no particular reason except that you can. You are a terrible person.
The phrase is appropriate, and that it is often used flippantly in other less fitting contexts doesn't matter.
You do a terrific job moderating HN, and I respect your decisions. Godspeed!
> If you deny, capriciously, justice to wrongfully convicted humans, it is not just something you write about.
The quote is from a concurrence on a certiorari Herrera v. Collins[1], and Justice Scalia was indeed "just writing" about it. The certiorari was granted, so he didn't "deny justice".
Dang is right, I got it wrong, and my conclusions are hogwash—for which I apologize.
As I stated, the Eighth Amendment alone would have sufficed.
Basically, Scalia was always steadfastly loyal to the Constitution's original intent, except when it conflicted with his religion, his political ideology, or his personal opinion. It's unfortunate to see all these hagiographies being written about him.
The long term of imprisonment of innocent people in the USA is disturbing and perhaps if I was on the Supreme Court I would ave allowed it. But. It sounds like the 8th amendment applies to events after conviction, even if you're not guilty. So the letter of the law has been applied.
Put it this way; if the law is never wrong because you can rely on the good people on the Supreme Court to fix things, then the law will never be changed.
But. It sounds like the 8th amendment applies to events after conviction, even if you're not guilty. So the letter of the law has been applied.
I'm afraid I don't follow you. If you're still being punished after evidence comes to light that you aren't guilty, then you're being "cruelly and unusually punished" by any sane person's definition. The Eighth is applicable, and should have been cited by Scalia to draw the opposite conclusion that he came to.
Since at other times he is a veritable balloon animal artist able to make the constitution support whatever conclusion he wants, I do find him refusing to do it in cases when he could remedy manifest injustice with a stroke of a pen capricious.
I don't mean that we've all written something like that, but that we've all (or practically all) done something as bad as that. No doubt the impact is many times worse when one is a Supreme Court justice, but that doesn't change the kind of person one is, it just amplifies it.
I find the requirement of "civility" over "truth" to be rather off-putting. The direct line here is Scalia's belief that justice is trumped by tradition, and therefore an innocent person has no right to be declared so by new evidence.
This makes him a terrible person, because he is directly standing between an innocent person (or people) and their freedom and the justice this country promises.
It's calling a spade a spade. Civility doesn't (edit: shouldn't) trump that.
Statements like "X is a terrible person" don't come from a concern for the truth, they come from our desire to see the people we identify against as evil. Whatever truth is, the ability to suspend this motive in oneself is sine qua non for it.
> I find the requirement of "civility" over "truth" to be rather off-putting.
That would of course be absurd, and there's no such requirement.
People regularly conflate judgment made from strong feeling with truth, and so they blast out the former with a righteous sense of legitimacy. Those with the opposite judgment feel equally so entitled. This dynamic is destructive, both of civil discourse and of the search for truth, so we needn't choose between the two.
Did you know him personally, or know someone who knew him personally, or is there some other reason beyond "you profoundly disagreed with him" that would lead you to calling him a "terrible person"?
> Did you know him personally, or know someone who knew him personally, or is there some other reason beyond "you profoundly disagreed with him" that would lead you to calling him a "terrible person"?
Is there anyone you would call a terrible person? "No" is an OK answer here.
Are any of them people you did not know? Again, "no" is an OK answer here.
I'm not the poster you're responding to, and I'm sympathetic to the idea that it's not constructive to call someone a "terrible person", but if we are to ever call people terrible, it seems like there are some public policy actions that might be sufficiently cruel or immoral to justify calling someone a public figure who sought and used extreme power for extreme evil a "terrible person" even without having first-hand knowledge of that person's day-to-day life.
Or we could limit our condemnation to their actions and advocacy, not their whole person.
Would I say it on the day their death was announced? Tougher question.
Candidly: if I felt like most of the people calling Scalia a "terrible person" were well acquainted with his work, beyond sound bites like "opposed marriage equality" or "thought we should shoot condemned convicts first and then hear their appeals", I wouldn't chide. But it seems like the more cut-and-dry an opinion you get about Scalia, the less well-informed and helpful it turns out to be.
Yes, your own history say you think "49% of [laywers] are terrible" and 'The most useful shorthand is "all recruiters are terrible"', believe 'The TSA is obviously terrible' and say the US supported a 'terrible Pakastani dictator'.
Here's a cut-and-dry piece by Richard A. Posner titled "The Incoherence of Antonin Scalia". Some of the choice quotes are: "OMITTING CONTRARY evidence turns out to be Scalia and Garner’s favorite rhetorical device", "Scalia and Garner are capable of reveling in absurdity", and "most professional historians reject the historical analysis in Scalia’s opinion".
For one of many given examples of incoherence, while Scalia says he is a textual originalist, "the eighteenth-century concept of freedom of speech was much narrower than the modern concept, and burning cloth is not a modern technological innovation", so why did he vote "to hold a federal statute forbidding the burning of the American flag unconstitutional"? As Posner writes, "an understanding of free speech that embraces flag burning is exceedingly unoriginalist. It is the product of freewheeling Supreme Court decisions within the last century."
Here's an op-ed by Erwin Chemerinsky titled "Justice Scalia: Why he's a bad influence" which starts "Justice Antonin Scalia is setting a terrible example for young lawyers. Ignore, for now, his jurisprudence, his famously strict originalism; it's his tone that's the problem." Other parts include "Such mockery does not amount to a legal argument; it's nothing more than an attack on the author's writing technique. A litigator who compared an opponent's brief to a fortune cookie likely would be, and should be, sanctioned by the court." and "Scalia's browbeating is childish, even vain; like a harshly negative book critic, he revels in his own turns of phrase. And his attitude, just like his legal theory, affects the profession as a whole."
Being so detached from humanity and so attached to his principles that he was willing to let someone die when he had the power to decide, that alone makes him a terrible person. I'm not going to get into my other issues with him because I don't have the time right now, but even if I were completely ignorant of the other terrible things he's said both in his writing and speeches, he's still a terrible person for that statement alone.
Text and tradition are uniquely important to the Supreme Court, whose members hold almost absolutely unaccountable lifetime appointments and the power to overrule Congress and thus shape the actions of the administration. Without rigorous traditions and principles, they're a panel of philosopher-kings.
More so than in any other government position, it is possible for a Supreme Court justice to be wrong on the substance of an issue and right on the process, and even for the process to outweigh the substance if it means 10, 50, 100 future cases are handled better.
The HN timing is interesting what with the sci-hub story still being on the front page. It's in that very thread that there was intense (and quite correct) discussion on the difference between justice and law.
Texts, traditions and principles are references. Sometimes they're wrong. Also, as a non-american I find it absolutely absurd that for a lot of people there is this fascination with "the constitution" as being this all-powerful scripture and that's what the supreme court is supposed to defend, not the more abstract aspects of morality.
It's all nonsense of course - all supreme justices know exactly what kind of power they have, why they have it and how to use it ... and the constitution is really just a reference.
I remember reading some of Scalia's comments (I believe on marriage equality) explaining away how the supreme court should not "redefine" etc but as another poster said, it's easy to say that when convenient and forget it when even more convenient. Those comments could be applied to just about every single case...
> Also, as a non-american I find it absolutely absurd that for a lot of people there is this fascination with "the constitution" as being this all-powerful scripture and that's what the supreme court is supposed to defend, not the more abstract aspects of morality.
People have very large disagreements over what is morally right.
In the American system of government, it's the role of the legislature to ensure that the laws represent some consensus of justice and morality. It's the role of the judiciary to resolve ambiguity and contradiction in those laws. If the judiciary were to rule based on their subjective views of morality, it would subvert the will of the people, as expressed in laws and constitutional amendments passed by the legislature (and legislatures of the states).
The courts are courts of law instead of courts of morality or justice, largely due to interpretation of morality and justice being much more problematic and arbitrary than interpretation of laws. It's the role of the legislature, not the judiciary, to determine consensus views of justice and morality.
No no no. This thinking is sideways. The injustice of the removal of freedom from an innocent person trumps tradition.
The Founding Fathers et al so disliked the injustice of tradition they started a new country.
To your other point about being unaccountable, the Supreme Court is checked by the balance of power between the three branches as much as the other two are. They aren't all-powerful beings, and I've seen it around this discussion that they hold unmatched power - which just isn't true.
Guys like Scalia see the role of the justice system as systematically enforcing the laws as written. They believe that as they are unelected, they have no moral right to simply make things up as they go along, and thus that their work should be mechanical and predictable - even if it results in a suboptimal outcome.
Now, the implications of the above quote are pretty disturbing, at the same time, can I really disagree with it? I am not a constitutional scholar and don't know if it's accurate, but if the constitution really has nothing in that allows for a retrial if new evidence comes to light, that sounds like a bug in the constitution and would need to be fixed. If you skip that bit and ask judges to just do what makes sense to them instead of what's written, then the democratic process ends up being bypassed.
So even if someone disagrees with that point of view, I'd hope they can at least understand it.
The problem with that line of argument is that it is trivially hypocritical. As someone else has pointed out, the constitutional prohibition of "cruel and unusual punishment" would have been sufficient grounds.
It is also more complexly hypocritical, as his opinions are constrained by the Constitution only as much as those of the other justices, which is to say only when convenient.
Remember, there's a reason that the process and traditions are followed. It helps provide (theoretically) a uniformity of enforcement.
In the case of your quote, the exact same mechanism for "evidence found after the trial changes to innocence" is quite possibly used for "evidence found after the trial changes to guilty". It nudges up against double-jeopardy.
The Fifth Amendment (which bars double jeopardy) is asymmetric. (I believe it is so by design and intent.)
A slippery slope evidentiary argument that would tend to exonerate is not a concern that it would later be applied to retry or change to guilty a previous acquittal, IMO. The courts have been quite clear on this.
However, he's still a terrible person, and here's the quote yours spawned from:
“There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.”
edit: This was originally in reply to a misquote that has now been deleted. Mods have now made it a parent comment.