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Made in us
Most Glorious Grey Seer





Everett, WA

 d-usa wrote:
 Breotan wrote:

I suppose some in the Left wing will also become energized by the opportunity to change the makeup of the court for a long time to come but I don't see that energy being as strong as with the Right.

The 4 - 4 tie currently predicted for one of the biggest abortion cases in decades will bring out the Left. As will the upcoming case about Executive Orders with Climate Change and Immigration. Add on the feelings about Citizens United and Guns and you have a mix that will get both sides fired up.

Even more critical than the Presidency is keeping control of the Senate. The Senators take office on the fist of January which would give President Obama 21 days to fill this vacancy with a "friendly" nomination even if there was an incoming Republican President.


 
   
Made in us
Colonel





This Is Where the Fish Lives

Here's a good article that touches on what Ouze was saying earlier in the thread:

Slate wrote:
Antonin Scalia Will Be Remembered as One of the Greats

When news of Supreme Court Justice Antonin Scalia’s death at age 79 broke on Saturday afternoon, the partisan split over the justice’s legacy was immediately obvious. Some liberals were quick to use his death as an occasion to jeer Scalia’s tenure, largely dwelling on his vociferous opposition to minority rights. Meanwhile, conservatives mourned the loss of their greatest judicial advocate, lauding Scalia as a giant of constitutional law. That’s fine and fair: Scalia was a political lightning rod, repulsing Democrats as much as he beguiled Republicans. But as time goes on and the sharp partisan contours of his most famous rulings blur, I have little doubt that Scalia will be remembered as one of the truly great justices on the United States Supreme Court.

Liberals—and, as a shorthand, many journalists—labeled Scalia a “conservative.” That was true as far as political temperament went; from his notorious friendship with Dick Cheney to his thinly veiled delight at the outcome of Bush v. Gore, Scalia was a Republican at heart. But to call him nothing more than a “conservative” would be to overlook the remarkable nuance and complexity of his jurisprudence. Scalia cast a decisive vote in the most important free speech case of the 1980s, Texas v. Johnson, which held that flag burning qualified as constitutionally protected expression. He wrote the landmark majority opinion in 2011’s Brown v. EMA, a double victory for First Amendment advocates that protected both depictions of violence and minors’ rights. And he dissented in Maryland v. King, arguing that the Fourth Amendment forbids law enforcement from collecting DNA from arrestees. (His fierce dissent sounds like it could have sprung from the pen of Edward Snowden.)

Despite his King vote, Scalia was widely viewed by many Americans as a harshly law-and-order justice. Again, that label is simply inaccurate. In many contexts, Scalia was extraordinarily protective of Americans’ right to privacy—though he himself would never use that term. He wrote the majority opinion in Kyllo v. United States, a 5-4 ruling that barred police from peeping into a home with a thermal-imaging device. He also wrote the majority opinion in Florida v. Jardines (another 5-4 decision), barring police from entering private property with a drug-sniffing dog without a warrant. Time and time again, he cast votes to protect drivers from intrusive car searches by law enforcement. Just last term, he sided against the police in a landmark ruling that restored constitutional rights to motorists illegally detained by cops.

And then there’s his view of the Confrontation Clause, which guarantees every criminal defendant the right “to be confronted with the witnesses against him.” The Framers of the Constitution intended the clause to forbid hearsay in the courtroom, allowing every defendant to cross-examine, under oath, those who offer testimonial evidence against him. Before Scalia joined the court, this crucial safeguard against faulty trial testimony had been reduced to a constitutional vestigial limb. As a justice, Scalia embarked on an astonishing and almost entirely successful crusade to restore the clause’s place in the pantheon of civil liberties. In a series of landmark rulings—many authored by Scalia himself—he endeavored to halt the trend of prosecutors introducing dubious hearsay evidence against defendants. This crusade often aligned the justice with unexpected allies, such as Ruth Bader Ginsburg (with whom he was great friends) and Sonia Sotomayor (with whom he was not). And just last term, Scalia took on his frequent ideological bedmate, Justice Samuel Alito, when he sensed Alito “shoveling … fresh dirt” on the newly restored right. The Confrontation Clause was Scalia’s fight; if had to vote with Sotomayor or against Alito to reach the right result, so be it.

Any honest assessment of Scalia’s legacy, of course, must contend with his vehement opposition to the rights of historically oppressed groups—namely women’s rights (especially abortion) and gay rights. And yet reading over Scalia’s abortion dissents, it is difficult not to feel a twinge of respect for his consistent constitutional views. Nobody doubts that Scalia personally abhorred abortion. But his abortion opinions read less like the rants of an arch pro-lifer and more like the pained cries of a dedicated textualist who believed, as a matter of pragmatism and constitutional law, that such contentious issues can only be truly resolved by the democratic process. Here’s the despairing peroration of Scalia’s dissent in Planned Parenthood v. Casey:

"There is a poignant aspect to today's opinion. Its length, and what might be called its epic tone, suggest that its authors believe they are bringing to an end a troublesome era in the history of our Nation and of our Court. … [But] by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.
We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining."

Scalia attempted to take the same let the people decide tack on gay rights—but admittedly, it’s harder to view Scalia’s gay rights dissents with cerebral esteem. Scalia’s apparent disdain for gay people bled into his first two gay rights opinions, which compared gays with drug dealers, prostitutes, and animal abusers. In his (still startling) dissent in Lawrence v. Texas, which invalidated Texas’ same-sex sodomy ban, Scalia accused the court of “largely sign[ing] on to the so-called homosexual agenda” and “tak[ing] sides in the culture war.” He wrote in defense of the “many Americans” who view homosexuality as “a lifestyle that they believe to be immoral and destructive” and championed their right pass laws that strip gays of rights and benefits. The Constitution, Scalia insisted, permitted such raw legislative bigotry.

Plenty of people, myself included, have cited these passages as proof that Scalia was little more than a bitter homophobe. And even now, I’m confident Scalia’s anti-gay beliefs will remain as a lasting blotch on his legacy. But in a few decades—when a majority of Americans can’t remember a time when the Constitution did not guarantee gay people the same fundamental rights as heterosexuals—the sting of this rhetoric will dwindle. Scalia, after all, was writing in dissent; his words had little impact on the country. (Any impact they did have was surely positive: Scalia’s first gay marriage dissent accidentally expedited the invalidation of state-level same-sex marriage bans.) Memories of his regrettable prejudices will recede, and in their place will emerge the image of a titan of constitutional law, a deeply principled, sincerely dedicated man who devoted his life to the court he loved.

When I was younger and angrier, I expected to cheer Scalia’s retirement, elated by his absence from the court. Today, I only feel overwhelming sadness. In my time covering the court, I’ve grown to admire the gruff, cantankerous man who lobs bombs and quips at nervous lawyers and bemused justices alike. Scalia was the justice you either loved or hated, relentlessly opinionated, representative of everything that was right or wrong with the Supreme Court. He was witty, unpredictable, caustic, indignant, and brilliant. He was an American original. And after the partisan howling over his legacy fades, that is how his country will remember him.

 d-usa wrote:
"When the Internet sends its people, they're not sending their best. They're not sending you. They're not sending you. They're sending posters that have lots of problems, and they're bringing those problems with us. They're bringing strawmen. They're bringing spam. They're trolls. And some, I assume, are good people."
 
   
Made in us
5th God of Chaos! (Ho-hum)





Curb stomping in the Eye of Terror!

Some of his best quotes/zingers:
http://websage.us/law/scalia.htm
‘Of thought & expression’
"The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so. Of course the opinion’s showy profundities are often profoundly incoherent.”
— Obergefell v. Hodges, Scalia, J., dissenting.


Raw Power’
“As Justice Stevens has elsewhere explained, ‘this Court’s power to require state courts to exclude probative self-incriminatory statements rests entirely on the premise that the use of such evidence violates the Federal Constitution. ... If the Court does not accept that premise, it must regard the holding in the Miranda case itself, as well as all of the federal jurisprudence that has evolved from that decision, as nothing more than an illegitimate exercise of raw judicial power.’ Quite so.”
— Dickerson v. United States, 530 U.S. 428, 456-457 (2000) (citing Oregon v. Elstad, 470 U.S. at 370 (dissenting opinion).


‘The wicked flee’
“California conceded below that Officer Pertoso did not have the ‘reasonable suspicion’ required to justify stopping Hodari. That it would be unreasonable to stop, for brief inquiry, young men who scatter in panic upon the mere sighting of the police is not self-evident, and arguably contradicts proverbial common sense. See Proverbs 28:1 (‘The wicked flee when no man pursueth’). We do not decide that point here, but rely entirely upon the State’s concession.”
— Cal. v. Hodari D., 499 U.S. 621, 624 (1991)


In the court of King Canute
“The [Court] majority ... pussyfoots around the lack of coercion by invalidating the Leadership Act for ‘requiring recipients to profess a specific belief’ and ‘demanding that funding recipients adopt—as their own—the Government’s view on an issue of public concern.’ But like King Cnut’s commanding of the tides, here the Government’s ‘requiring’ and ‘demanding’ have no coercive effect.”
— Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc., 133 S. Ct. 2321, 2333-2335 (2013)


‘As night [divides] the day’
“The Framers did not like corporations, the dissent concludes, and therefore it follows (as night the day) that corporations had no rights of free speech. Of course the Framers' personal affection or disaffection for corporations is relevant only insofar as it can be thought to be reflected in the understood meaning of the text they enacted -- not, as the dissent suggests, as a freestanding substitute for that text. But the dissent's distortion of proper analysis is even worse than that. ...”
— Citizens United v. FEC, 558 U.S. 310, 386 (2010) (Scalia, J., concurring)


‘Distorted view’
“The Court’s distorted view creates an expansive exception to the Confrontation Clause for violent crimes. Because Bryant posed a continuing threat to public safety in the Court’s imagination, the emergency persisted for confrontation purposes at least until the police learned his ‘motive for and location after the shooting.’ ... This is a dangerous definition of emergency ...
— Michigan v. Bryant, 131 S. Ct. 1143, (2011) (Scalia, J., dissenting)


‘A cloud of obfuscating smoke’
“Justice Stevens also appeals to the undoubted fact that some in the founding generation thought that the Religion Clauses of the First Amendment should have a narrower meaning, protecting only the Christian religion or perhaps only Protestantism. I am at a loss to see how this helps his case, except by providing a cloud of obfuscating smoke.”
— McCreary County v. ACLU, 545 U.S. 844 (2005)


‘Just for the devil of it’
“In a way, using unreliable legislative history to confirm what the statute plainly says anyway (or what the record plainly shows) is less objectionable since, after all, it has absolutely no effect upon the outcome. But in a way, this utter lack of necessity makes it even worse – calling to mind St. Augustine’s enormous remorse at stealing pears when he was not even hungry, and just for the devil of it (‘not seeking aught through the shame, but the shame itself!’). The Confessions, Book 2, P9, in 18 Great Books of the Western World 10-11 (1952).
— Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 391 (2000)


‘Bedeviled’
“Our Religion Clause jurisprudence has become bedeviled (so to speak) by reliance on formulaic abstractions that are not derived from, but positively conflict with, our long-accepted constitutional traditions.”
— Lee v. Weisman, 505 U.S. 577, 644 (1992)


‘Happy’
“Imagine, for instance, special place-and-manner restrictions on all speech except that which ‘conveys a sense of contentment or happiness.’ This ‘happy speech’ limitation would not be ‘viewpoint-based’ – citizens would be able to express their joy in equal measure at either the rise or fall of the NASDAQ, at either the success or the failure of the Republican Party – and would not discriminate on the basis of subject matter, since gratification could be expressed about anything at all.”
— Hill v. Colo., 530 U.S. 703, 743 (2000)


‘Sheep’
“The premise of the First Amendment is that the American people are neither sheep nor fools, and hence fully capable of considering both the substance of the speech presented to them and its proximate and ultimate source. If that premise is wrong, our democracy has a much greater problem to overcome than merely the influence of amassed wealth. Given the premises of democracy, there is no such thing as too much speech.”
— McConnell v. FEC, 540 U.S. 93, 258-259 (2003)


‘Juice not worth the squeeze’
“If the Bill of Rights had intended an exception to the freedom of speech in order to combat this malign proclivity of the officeholder to agree with those who agree with him, and to speak more with his supporters than his opponents, it would surely have said so. It did not do so, I think, because the juice is not worth the squeeze.”
— McConnell v. FEC, 540 U.S. 93, 259 (2003)


Virtuosic
“So, what appears to have happened is that the plurality has facially invalidated not § 18.2-423, but its own hypothetical interpretation of § 18.2-423, and has then remanded to the Virginia Supreme Court to learn the actual interpretation of § 18.2-423. Words cannot express my wonderment at this virtuoso performance.”
— Virginia v. Black, 538 U.S. 343, 379 (U.S. 2003)


‘Avant-garde’
“Those who wish to create indecent and disrespectful art are as unconstrained now as they were before the enactment of this statute. Avant-garde artistes such as respondents remain entirely free to épater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it. It is preposterous to equate the denial of taxpayer subsidy with measures aimed at the suppression of dangerous ideas.”
— National Endowment for the Arts v. Finley, 525 U.S. 569 (1998) (Scalia, J., concurring)


‘Mea culpa’
“I come, finally, to the Court’s stinging observation that I joined the majority opinion in Standard Fire Ins. Co. v. Knowles, 568 U. S. ___ (2013)—a case that arose in the same posture as this one, but that was resolved without reference to the question whether the appellate courtabused its discretion. ... As for my own culpability in overlooking the issue, I must accept that and will take it with me to the grave. But its irrelevance to my vote in the present case has been well expressed by Justice Jackson, in a passage quoted by the author of today’s opinion: ‘I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.’ Massachusetts v. United States, 333 U.S. 611, 639–640 (1948) (dissenting opinion).”
— Dart Cherokee Basin Operating Co. v. Owens, 574 U. S. __ (2014)


‘Pasties and g-strings’
“I am highly skeptical, to tell the truth, that the addition of pasties and g-strings will at all reduce the tendency of establishments such as Kandyland to attract crime and prostitution, and hence to foster sexually transmitted disease. The traditional power of government to foster good morals (bonos mores), and the acceptability of the traditional judgment (if Erie wishes to endorse it) that nude public dancing itself is immoral, have not been repealed by the First Amendment.”
— City of Erie v. Pap's A.M., 529 U.S. 277, 310 (2000)


‘Prophylactic’
“And so, to justify today's agreed-upon result, the Court must adopt a significant new, if not entirely comprehensible, principle of constitutional law … that this Court has the power, not merely to apply the Constitution but to expand it, imposing what it regards as useful ‘prophylactic’ restrictions upon Congress and the States. That is an immense and frightening antidemocratic power, and it does not exist.”
— Dickerson v. United States, 530 U.S. 428, 445-446 (2000)


‘Naked’
“This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ ‘reasoned judgment.’ A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
— Obergefell v. Hodges, Scalia, J., dissenting


‘Naked Eye’
“Thermal imagers detect infrared radiation, which virtually all objects emit but which is not visible to the naked eye. … The present case involves officers on a public street engaged in more than naked-eye surveillance of a home. … While it is certainly possible to conclude from the videotape of the thermal imaging that occurred in this case that no significant compromise of the homeowner’s privacy has occurred, we must take the long view, from the original meaning of the Fourth Amendment forward. … Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a search and is presumptively unreasonable without a warrant.”
— Kyllo v. United States, 389 U.S. 27 (2001)


‘O’er’
“Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the ‘least dangerous’ of the federal branches because it has ‘neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm’ and the States, even for the efficacy of its judgments. With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court—we move one step closer to being reminded of our impotence.”
— Obergefell v. Hodges, Scalia, J., dissenting


‘Vain’
“In its vain attempt to make the incredible plausible, however—or perhaps as an intended second goal—today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort.”
— Michigan v. Bryant, 131 S. Ct. 1143, (2011) (Scalia, J., dissenting)


‘Under a cloud’
“... And any officers appointed in those circumstances would have served under a cloud, unable to determine with any degree of confidence whether their appointments were valid. Fumbling for some textually grounded standard, the majority seizes on the Adjournments Clause, which bars either House from adjourning for more than three days without the other’s consent. ... It goes without saying that nothing in the constitutional text supports that disposition.”
— NLRB v. Canning, 134 S. Ct. 2550, 2598 (2014) (Scalia, J., concurring)


Senate on siesta
“To avoid the absurd results that follow from its colloquial reading of ‘the Recess,’ the majority ... identifies no textual basis whatsoever ... It is inconceivable that the Framers would have left the circumstances in which the President could exercise such a significant and potentially dangerous power so utterly indeterminate. ... Yet on the majority’s view, when the first Senate considered taking a 1-month break, a 3-day weekend, or a half-hour siesta, it had no way of knowing whether the President would be constitutionally authorized to appoint officers in its absence. ...
— NLRB v. Canning, 134 S. Ct. 2550, 2598 (2014) (Scalia, J., concurring)


‘Sphinx of judicial arrogance’
“Today’s judgment converts Miranda from a milestone of judicial overreaching into the very Cheops’ Pyramid (or perhaps the Sphinx would be a better analogue) of judicial arrogance. In imposing its Court-made code upon the States, the original opinion at least asserted that it was demanded by the Constitution. Today’s decision does not pretend that it is—and yet still asserts the right to impose it against the will of the people’s representatives in Congress.”
— Dickerson v. United States, 530 U.S. 428, 465 (2000)


‘Nine-headed Caesar’
“The issue, however, is not whether court rules are ‘mutable’; they assuredly are. It is not whether, in the light of ‘various circumstances,’ they can be ‘modified’; they assuredly can. The issue is whether, as mutated and modified, they must make sense. The requirement that they do so is the only thing that prevents this Court from being some sort of nine-headed Caesar, giving thumbs-up or thumbs-down to whatever outcome, case by case, suits or offends its collective fancy.”
— Dickerson v. United States, 530 U.S. 428, 455 (2000)


The boss is always right
“There was in my view no basis for holding that patronage-based dismissals violated the First Amendment – much less for holding, as the Court does today, that even patronage hiring does so. … The Court holds that the governmental benefits of patronage cannot reasonably be thought to outweigh its ‘coercive’ effects … It seems to me that that categorical pronouncement reflects a naive vision of politics and an inadequate appreciation of the systemic effects of patronage in promoting political stability.”
— Rutan v. Republican Party, 497 U.S. 62, 97, 103-104 (1990)


The horror
“As to the Court's invocation of the Lemon test: Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. ... Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart.”
— Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993)


‘Psycho-journey’
“A few citations of ‘research in psychology’ that have no particular bearing upon the precise issue here, cannot disguise the fact that the Court has gone beyond the realm where judges know what they are doing. But interior decorating is a rock-hard science compared to psychology practiced by amateurs. … Whatever the merit of those cases [cited by the majority as precedent], they do not support, much less compel, the Court’s psycho-journey.”
— Lee v. Weisman, 505 U.S. 577, 636 (1992)


‘More Hannibal than Hamlet’
“When it has come to determining what areas fall beyond our Article III authority to adjudicate, this Court’s practice, from the earliest days of the Republic to the present, has been more reminiscent of Hannibal than of Hamlet.”
— Vieth v. Jubelirer, 124 S. Ct. 1769, 1790 (2004)


‘Twilight Zone’
“It has come to this. Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires? Needless to say (except that this case obliges us to say it), the question answers itself. ‘The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.’ Grutter v. Bollinger, 539 U.S. 306, 349 (2003) (Scalia, J., concurring in part and dissenting in part). It is precisely this understanding—the correct understanding—of the federal Equal Protection Clause that the people of the State of Michigan have adopted for their own fundamental law. By adopting it, they did not simultaneously offend it.”
— Schuette v. Coalition to Defend Affirmative Action, 572 U.S. ____ (2014) (Scalia, J., concurring in judgment.)


‘Outer limits’
“In sum, if this case is, as the Court suggests, within the central core of ‘deterrence’ standing, it is impossible to imagine what the ‘outer limits’ could possibly be. The Court’s expressed reluctance to define those outer limits serves only to disguise the fact that it has promulgated a revolutionary new doctrine of standing that will permit the entire body of public civil penalties to be handed over to enforcement by private interests.”
— Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 208 (2000)


‘Hideous monster’
“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).”
— Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2623 (2012) (Scalia, J., dissenting)


‘Bulldozer of social engineering’
“As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless, and boundlessly manipulable, test of psychological coercion, which promises to do for the Establishment Clause what the Durham rule did for the insanity defense. Today’s opinion shows more forcefully than volumes of argumentation why our Nation’s protection, that fortress which is our Constitution, cannot possibly rest upon the changeable philosophical predilections of the Justices of this Court, but must have deep foundations in the historic practices of our people.”
— Lee v. Weisman, 505 U.S. 577, 631-632 (1992)


Grim fairy tales
“Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers ‘till she fell dead on the floor, a sad example of envy and jealousy.’ Cinderella’s evil stepsisters have their eyes pecked out by doves. And Hansel and Gretel (children!) kill their captor by baking her in an oven.”
— Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2736 (2011)


‘Torturing logic’
“And the argument not only tortures logic, it also distorts reality, resting as it does on the premise that henceforth no ‘responsible attorney’ will fail to include evidence supporting federal jurisdiction in a notice of removal. Even discounting the existence of irresponsible attorneys, but responsible attorneys, and even responsible judges, sometimes make mistakes.”
— Dart Cherokee Basin Operating Co. v. Owens, 574 U. S. __ (2014)


‘Orwellian’
“Despite the Court’s Orwellian assertion to the contrary, it is undeniable that later cases (discussed above) have undermined Miranda’s doctrinal underpinnings.”
— Dickerson v. United States, 530 U.S. 428 (2000)


Responsible lawyers
“Even in the legal utopia imagined by the Court—a world in which all lawyers are responsible and no lawyers make mistakes—it is easy to imagine ways in which the issue could come back to the circuit court.”
— Dart Cherokee Basin Operating Co. v. Owens, 574 U. S. __ (2014)


‘Special solicitude’ for lawyers
“The Court’s decision displays not only an improper special solicitude for our own profession; it also displays, I think, the very fondness for ‘reform through the courts’ – the making of innumerable social judgments through judge-pronounced constitutional imperatives – that prompted Congress to restrict publicly funded litigation of this sort.”
— Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 562 (2001)


‘Surely, you can’t be serious’
“Governmental ‘neutrality’ between religion and nonreligion? Who says so? Surely not the words of the Constitution. Surely not the history and traditions that reflect our society’s constant understanding of those words. Surely not even the current sense of our society, recently reflected in an Act of Congress criticizing a Court of Appeals opinion that had held ‘under God’ in the Pledge of Allegiance unconstitutional.”
— McCreary County v. ACLU, 545 U.S. 844 (2005)


Elementary
“As the Court colorfully puts it, if the dog of legislative history has not barked nothing of great significance can have transpired. Apart from the questionable wisdom of assuming that dogs will bark when something important is happening, we have forcefully and explicitly rejected the Conan Doyle approach to statutory construction in the past. In ascertaining the meaning of a statute, a court cannot, in the manner of Sherlock Holmes, pursue the theory of the dog that did not bark. We are here to apply the statute, not legislative history, and certainly not the absence of legislative history. Statutes are the law though sleeping dogs lie.”
—Chisom v. Roemer, 501 U.S. 380, 406 (1991)


‘Illogical’; ‘obvious non sequitur’
“The Court, however, says (quite illogically) that it means the Tenth Circuit must have agreed with the District Court’s incorrect legal analysis. It is hard to imagine a more obvious non sequitur.”
— Dart Cherokee Basin Operating Co. v. Owens, 574 U. S. __ (2014)


‘Solomonic’
“The judgment in today’s case has an appearance of moderation and Solomonic wisdom, upholding as it does some portions of the injunction while disallowing others. That appearance is deceptive. The entire injunction in this case departs so far from the established course of our jurisprudence that in any other context it would have been regarded as a candidate for summary reversal.”
— Madsen v. Women's Health Ctr., 512 U.S. 753 (1994)


Omar the Tentmaker
“If forbidding peaceful, nonthreatening, but uninvited speech from a distance closer than eight feet is a ‘narrowly tailored’ means of preventing the obstruction of entrance to medical facilities (the governmental interest the State asserts), narrow tailoring must refer not to the standards of Versace, but to those of Omar the Tentmaker.”
— Hill v. Colo., 530 U.S. 703, 749 (2000)


‘Hollow’
“The Framers could not have envisioned such a hollow constitutional guarantee. No framing-era confrontation case that I know of, neither here nor in England, took such an enfeebled view of the right to confrontation ...

‘Transparently false’
“Today’s tale—a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose—is so transparently false that professing to believe it demeans this institution ...

‘Faux’
“Today’s decision is not only a gross distortion of the facts. It is a gross distortion of the law—a revisionist narrative in which reliability continues to guide our Confrontation Clause jurisprudence, at least where emergencies and faux emergencies are concerned.”

‘Judicial mischief’
“But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand ...
— Michigan v. Bryant, 131 S. Ct. 1143, (2011) (Scalia, J., dissenting)

‘Steamrolling’
“JUSTICE SOUTER’s steamrolling of the difference between civil authority held by a church and civil authority held by members of a church is breathtaking.…

‘Not logical’
“JUSTICE SOUTER not only does not adopt the logical assumption, he does not even give the New York Legislature the benefit of the doubt. The following is the level of his analysis…

‘Facile’
“I turn, next, to JUSTICE SOUTER’s second justification for finding an establishment of religion: his facile conclusion that the New York Legislature’s creation of the Kiryas Joel school district was religiously motivated. But in the Land of the Free, democratically adopted laws are not so easily impeached by unelected judges …

Diverse & multicultural
“I have little doubt that JUSTICE SOUTER would laud this humanitarian legislation if all of the distinctiveness of the students of Kiryas Joel were attributable to the fact that their parents were nonreligious commune dwellers, or American Indians, or gypsies. The creation of a special, one-culture school district for the benefit of those children would pose no problem …”
— Bd. of Educ. v. Grumet, 512 U.S. 687 (1994)


‘Sham’
“By accepting plaintiffs’ vague, contradictory, and unsubstantiated allegations of ‘concern’ about the environment as adequate to prove injury in fact, and accepting them even in the face of a finding that the environment was not demonstrably harmed, the Court makes the injury-in-fact requirement a sham. If there are permit violations, and a member of a plaintiff environmental organization lives near the offending plant, it would be difficult not to satisfy today’s lenient standard.”
— Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.(TOC),Inc., 528 U.S. 167 (2000) (Scalia, J., dissenting)


‘Cavalier’
“The Court’s treatment of the redressability requirement–which would have been unnecessary if it resolved the injury-in-fact question correctly–is equally cavalier.”
— Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.(TOC),Inc., 528 U.S. 167 (2000) (Scalia, J., dissenting)


‘Unprincipled’
“The Court attempts to bolster its conclusion with an unprincipled and unequal application of the waiver doctrine.”
— Dart Cherokee Basin Operating Co. v. Owens, 574 U. S. __ (2014)


‘Irrational’
“To avoid the question of Roe v. Wade’s validity, with the attendant costs that this will have for the Court and for the principles of self-governance, on the basis of a standard that offers no guide but the Court’s own discretion, merely adds to the irrationality of what we do today. Similarly irrational is the new concept that Justice O’Connor introduces into the law in order to achieve her result, the notion of a State’s ‘interest in potential life when viability is possible.’ Since ‘viability’ means the mere possibility (not the certainty) of survivability outside the womb, ‘possible viability’ must mean the possibility of a possibility of survivability outside the womb.”
— Webster v. Reprod. Health Servs., 492 U.S. 490, 532 (1989)


‘Fortunate fit of stupidity’
“The Constitution is not, unlike the Miranda majority, offended by a criminal’s commendable qualm of conscience or fortunate fit of stupidity.”
— Dickerson v. United States, 530 U.S. 428, 449-450 (2000)


Rights for man, not polar bears
“All the provisions of the Bill of Rights set forth the rights of individual men and women – not, for example, of trees or polar bears.”
— Citizens United v. FEC, 558 U.S. 310, 391-392 (2010)


‘Boutique of wonderful litigation’
“And in other areas, of course, a whole new boutique of wonderful First Amendment litigation opens its doors. Must a parade permit, for example, be issued to a group that refuses to provide its identity, or that agrees to do so only under assurance that the identity will not be made public? Must a municipally owned theater that is leased for private productions book anonymously sponsored presentations? Must a government periodical that has a ‘letters to the editor’ column disavow the policy that most newspapers have against the publication of anonymous letters? Must a public university that makes its facilities available for a speech by Louis Farrakhan or David Duke refuse to disclose the on-campus or off-campus group that has sponsored or paid for the speech? Must a municipal ‘public-access’ cable channel permit anonymous (and masked) performers? The silliness that follows upon a generalized right to anonymous speech has no end.”
— McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 381 (1995)


If you abhor it, it must be unconstitutional
“The interpretive philosophy of the ‘living constitution’ – a document whose meaning changes to suit the times, as the Supreme Court sees the times – continues to predominate in the courts, and in the law schools. Indeed, it even predominates in the perception of the ordinary citizen, who has come to believe that what he violently abhors must be unconstitutional.”
— Antonin Scalia, Forword to Originalism: A Quarter-Century of Debate, 43 (Steven G. Calabresi, ed. Regnery Publishing 2007).


‘More than doubly ... plus a little’
CHIEF JUSTICE ROBERTS: You think the Treaty gives you a more compelling governmental interest than the Controlled Substances Act?
MR. KNEEDLER: I certainly do. And the two together, I think, are doubly compelling, because the Government -- the United States has a compelling interest in encouraging this, and section 801(a) --
JUSTICE SCALIA: More than doubly. It has to be doubly, plus a little, if you said that one is even more than the other.
— Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, 2005 U.S. Trans. LEXIS 48 (U.S. Trans. 2005)

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What a shame. He was a lion on Second Amendment issues.
   
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People will rightfully say that I'm not American, nor am I a lawyer or an expert on American constitutional law, but I believe his judgement on the Heller case woefully misinterpreted the original intent of the 2nd amendment, as written by James Madison.


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 Do_I_Not_Like_That wrote:
People will rightfully say that I'm not American, nor am I a lawyer or an expert on American constitutional law, but I believe his judgement on the Heller case woefully misinterpreted the original intent of the 2nd amendment, as written by James Madison.


You do know that James Madison wasn't he only founder of the US Constitution... right?

Scalia's Heller ruling is text book definition of a "Constitutional Interpretation". And, that is, that this right is inalienable. It belongs to individuals. It belongs to citizens.
It is a right on which no government can infringe... without consequence.

Same thing as his Kelo Eminent Domain ruling... which was an epic dissent.

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The same way that "life, liberty, and the pursuit of happiness" are inalienable rights until someone gets jailed?

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Curb stomping in the Eye of Terror!

 AlmightyWalrus wrote:
The same way that "life, liberty, and the pursuit of happiness" are inalienable rights until someone gets jailed?

I'm not sure what you're asking here...

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 whembly wrote:
Scalia's Heller ruling is text book definition of a "Constitutional Interpretation". And, that is, that this right is inalienable. It belongs to individuals. It belongs to citizens.
It is a right on which no government can infringe... without consequence.
In affirming that the Second Amendment granted citizens to right to own a firearm unconnected to service in a militia, the Court also held that it is not an absolute right.

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Curb stomping in the Eye of Terror!

 ScootyPuffJunior wrote:
 whembly wrote:
Scalia's Heller ruling is text book definition of a "Constitutional Interpretation". And, that is, that this right is inalienable. It belongs to individuals. It belongs to citizens.
It is a right on which no government can infringe... without consequence.
In affirming that the Second Amendment granted citizens to right to own a firearm unconnected to service in a militia, the Court also held that it is not an absolute right.

Almost right... have a read of the Heller opinion here. That's a lot of golden nuggets in that (many written by Scalia).

Here's a few:
“The Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed’ … this is not a right granted by the Constitution.

An important distinction... no?

And for those who tries to correlate "the people" is only "the militia", the court found:
“Nowhere else in the Constitution does a ‘right’ attributed to ‘the people’ refer to anything other than an individual right.”


Hence why the framers made a big deal about “inalienable” rights. As such, inalienable rights cannot be created, altered, limited, or removed by man-made laws or governments.

Hence why the legal term of strict scrutiny is very much a thing. Which is how Maryland's Assault Weapons ban was overturned recently.

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 whembly wrote:
 AlmightyWalrus wrote:
The same way that "life, liberty, and the pursuit of happiness" are inalienable rights until someone gets jailed?

I'm not sure what you're asking here...


The US is supposedly founded on the idea of inalienable human rights, as laid out in the Declaration of Independence, but these inalienable rights were apparently alienable enough that imprisonment wasn't banned by the constitution. Why is the right to own guns inalienable when the very reason for the US existing as a sovereign nation in the first place isn't?

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Curb stomping in the Eye of Terror!

 AlmightyWalrus wrote:
 whembly wrote:
 AlmightyWalrus wrote:
The same way that "life, liberty, and the pursuit of happiness" are inalienable rights until someone gets jailed?

I'm not sure what you're asking here...


The US is supposedly founded on the idea of inalienable human rights, as laid out in the Declaration of Independence, but these inalienable rights were apparently alienable enough that imprisonment wasn't banned by the constitution. Why is the right to own guns inalienable when the very reason for the US existing as a sovereign nation in the first place isn't?

You're still not make any sense. Sorry.

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How much clearer can I get? If the US was founded with the belief that there are inalienable, universal rights, as the Declaration of Independence claims, and the state is allowed to take away two of the three "inalienable" rights used as examples (life and liberty), how is the right to own guns inalienable? Why is it that guns are sacrosanct when life and liberty clearly are not?

EDIT: I suppose I'm arguing against a dead man. We're getting closer to yet another gun thread, so I'll drop it.

This message was edited 1 time. Last update was at 2016/02/14 18:18:58


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Curb stomping in the Eye of Terror!

Oh, I see what you mean. But I think you're on the wrong track here.

But, yes, let's drop it here and if you want, ask away in that Political thread.

This message was edited 1 time. Last update was at 2016/02/14 18:27:28


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-

 whembly wrote:
 Do_I_Not_Like_That wrote:
People will rightfully say that I'm not American, nor am I a lawyer or an expert on American constitutional law, but I believe his judgement on the Heller case woefully misinterpreted the original intent of the 2nd amendment, as written by James Madison.


You do know that James Madison wasn't he only founder of the US Constitution... right?

Scalia's Heller ruling is text book definition of a "Constitutional Interpretation". And, that is, that this right is inalienable. It belongs to individuals. It belongs to citizens.
It is a right on which no government can infringe... without consequence.

Same thing as his Kelo Eminent Domain ruling... which was an epic dissent.


With all due respect, Whembley, we also know that there was four other members of the Jackson 5, but let's not pretend it was anything other than a vehicle for Michael!

The same thing is at work here with the constitution. Madison did most of the heavy lifting.

I agree with the other post that we shouldn't turn this into a gun thread. My views on the 2nd and what the militia element really means IMO (and for the record am I sympathetic to gun owners) can be found here. here, and here.



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Just heard that officials say he died of a heart attack.

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 AlmightyWalrus wrote:
How much clearer can I get? If the US was founded with the belief that there are inalienable, universal rights, as the Declaration of Independence claims, and the state is allowed to take away two of the three "inalienable" rights used as examples (life and liberty), how is the right to own guns inalienable? Why is it that guns are sacrosanct when life and liberty clearly are not?

The right to possess firearms is forfeited by a felon, just as the right to liberty is. So you're arguing from a false premise.

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Not a gun thread. Remotely. Let's leave the gun topic there.

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 djones520 wrote:
I doubt it. Going after Obama won't do much, since he's a "lame duck". Their going to continue hammering on Clinton/Sanders more.


It isn’t about ‘going after’ Obama. It’s about re-defining this election as a nomination for the Supreme Court, and it’s about the hope that the next appointment will be made by a Republican president, not a Democratic president.

Obama has a bit over 300 days of his presidency, the longest time an appointment to the US Supreme Court has taken is a bit over 100 days. If Republicans do hold an appointment up for 100 days, why not another 200 more after that?

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Because any argument to do so is not only hypocritical, but will fall flat on its face with voters.

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 whembly wrote:
Here's a few:
“The Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed’ … this is not a right granted by the Constitution.

An important distinction... no?


It's a clever piece of reading. Highly imaginative. Also quite ridiculous.

And I mean ridiculous not out of any desire to criticise the underlying belief in a gun rights, but as a means to criticise this incredibly stupid process in which people decide they want a thing. Gun rights, abortions, whatever, people decide which side of that debate they are on, and then they go about applying immense amounts of intellect to interpret plainly written documents to prove their desired thing is right there in the text.

It’s turned the act of reading in to a weapon of political attack. It’s bizarre. And every time I see it, I cannot see any difference between it and any of the endless rules debates on site’s like this one. Well, Scalia and the other guys who do it at that level are obviously much smarter so they do it much better than we manage on this site, but the end result is just as ridiculous.

“We may observe that the government in a civilized country is much more expensive than in a barbarous one; and when we say that one government is more expensive than another, it is the same as if we said that that one country is farther advanced in improvement than another. To say that the government is expensive and the people not oppressed is to say that the people are rich.”

Adam Smith, who must have been some kind of leftie or something. 
   
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Interesting article on what it took to pronounce him dead:

http://www.npr.org/sections/thetwo-way/2016/02/14/466745476/the-trials-of-pronouncing-antonin-scalia-dead-in-west-texas
   
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 Gordon Shumway wrote:
Because any argument to do so is not only hypocritical, but will fall flat on its face with voters.


To quote a great man...

 Ouze wrote:
Well, what do they have to lose? Their 12% approval rating?

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 sebster wrote:
Yes, indeed. What a terrible piece of cultural imperialism it is for me to say that a country shouldn't murder its own citizens
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Basically they went from a carrot and stick to a smaller carrot and flanged mace.
 
   
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 Co'tor Shas wrote:
 Gordon Shumway wrote:
Because any argument to do so is not only hypocritical, but will fall flat on its face with voters.


To quote a great man...

 Ouze wrote:
Well, what do they have to lose? Their 12% approval rating?


12% nationally, what are they looking like in their own districts where they actually have to get elected. Of course with the gerrymandering the way it is, it probably doesn't matter. Then again, a gerrymandering case is going up before the SC this year and with one less vote, it will likely get kicked back to the lower courts.

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 Gordon Shumway wrote:
12% nationally, what are they looking like in their own districts where they actually have to get elected. Of course with the gerrymandering the way it is, it probably doesn't matter. Then again, a gerrymandering case is going up before the SC this year and with one less vote, it will likely get kicked back to the lower courts.


It's the senate that approves. State lines are screwy at times, but it'd be a stretch to call them gerrymandered

“We may observe that the government in a civilized country is much more expensive than in a barbarous one; and when we say that one government is more expensive than another, it is the same as if we said that that one country is farther advanced in improvement than another. To say that the government is expensive and the people not oppressed is to say that the people are rich.”

Adam Smith, who must have been some kind of leftie or something. 
   
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Dragging out the approval process is a double edged sword. The GOP could easily screw themselves trying to drag it out given their already problematic reputation for wasting everyone times with prattle and stalling government functions and saying its Obama's fault. It could easily play against their nominee in the coming election.

I'd also argue the court isn't 4-4 right now. It's 3-1-4.

Kennedy while a fairly conservative jurist has come out as a dark horse on a number of cases and has swung the majority towards the 'liberal' side of the court. (and some of the most significant of the Roberts Court). You could easily lump Roberts into the same boat. He hasn't been the hawk of conservatism that he was initially pegged as.

It's highly unlikely the GOP can stall a nominee for 300 days. Obama is gonna pick someone and they're in all likely hood going to get in.

   
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 LordofHats wrote:
It's highly unlikely the GOP can stall a nominee for 300 days. Obama is gonna pick someone and they're in all likely hood going to get in.

As I said earlier, this would be true if the Democrats win the Presidential election. If that happens, confirmation would likely happen early in November because there really would be no point in dragging it out further. Otherwise look for the vacancy to be filled in late January.


 
   
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 AlmightyWalrus wrote:
How much clearer can I get? If the US was founded with the belief that there are inalienable, universal rights, as the Declaration of Independence claims, and the state is allowed to take away two of the three "inalienable" rights used as examples (life and liberty), how is the right to own guns inalienable? Why is it that guns are sacrosanct when life and liberty clearly are not?

EDIT: I suppose I'm arguing against a dead man. We're getting closer to yet another gun thread, so I'll drop it.


Those equal rights are only for the 1% and republicans!

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 Gordon Shumway wrote:
 Co'tor Shas wrote:
 Gordon Shumway wrote:
Because any argument to do so is not only hypocritical, but will fall flat on its face with voters.


To quote a great man...

 Ouze wrote:
Well, what do they have to lose? Their 12% approval rating?


12% nationally, what are they looking like in their own districts where they actually have to get elected. Of course with the gerrymandering the way it is, it probably doesn't matter. Then again, a gerrymandering case is going up before the SC this year and with one less vote, it will likely get kicked back to the lower courts.


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http://www.rightwingwatch.org/content/alex-jones-obama-murdered-justice-scalia-and-donald-trump-next


of course !


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