SCOTUS: Scalia, Fuck, California, Women, Gays, and an Exercise in Self-Restraint

What’s gay got to do — got to do with it?  What’s “Fuck” but a second-hand emotion?

No, not you, Justice Scalia. It's just an image. A gestalt. A zeitgeist, if you will. (Call me! You're pretty.)

I’m super busy y’all.  One of those busies where I try to avoid reading the news so that I can avoid ending up hating everything.  But I read an article in California Lawyer today (I’m a subscriber since I’m both a Lawyer and I live in California) and wouldntcha know, I got downright concerned.  The hazard of being a blogger who enjoys a good tirade is that sometimes my rant tendencies intersect with my lawyer tendencies, and not in a good way.  This is one of those times.

In a recent interview with California Lawyer, Antonin Scalia again made the case for originalism, which is the view that the Constitution should be upheld and interpreted as written; none of that namby pamby “living breathing document” crap.  Just look at what it says!  It’s all right there!

Scalia is deliciously arrogant.  He seems to think he and only he knows what’s right or wrong; what’s constitutional or un-.  It’s almost as if he wishes he could have been on the bench back when the Court decided Marbury v. Madison (1803) and could somehow remain on the bench until the end of time.  Life would be much simpler if it was All Up to Him, wouldn’t it?

The interview is a hoot.  First, Scalia says that the Constitution doesn’t prohibit discrimination on the basis of gender –so, suck it, ladies!  (Now, lest you think that it’s insane to think that it isn’t unconstitutional to discriminate against women, recall that the Lily Ledbetter Act was just signed into law, like, yesterday.) He practically calls the Burger Court a bunch of stupidheads.  Why?  Well because back in 1971 when women were starting to get all uppity bra-burny, SCOTUS — with Chief Justice Burger at the helm — ruled that the Fourteenth Amendment prohibits discrimination on the basis of sex.  (It was a case called Reed v. Reed and it was a travesty!  What idiots those justices were!  Yeah, I’m looking at you, Thurgood.  What were you thinking?  You weren’t, obvs.  That’s what we get for letting black people on the bench.)

As for equal rights for our gay brothers and sisters, well don’t even get him started.  The thrust of Scalia’s statements (as I view them) provides a snapshot of what his opinion on Prop 8 will be once that case makes its way to the Supremes.  Scalia’s viewpoint is nothing shocking, really; it’s not like anyone who has been paying attention doesn’t already know what his opinion will be. But for those of you who have been trapped under something heavy, here it is: The Fourteenth Amendment doesn’t protect ‘mos.

Sorry, queers.  You might as well go ahead and figure out which 2/5 of your person you don’t really need and join us black amputees at the back of the Constitutional Bus.

::exhale::

Man alive — The pressure in my brain is starting to build.  I feel a rant growing deep in my bowels (or wherever rants are stored) but I can’t let it out.  It’s stuck.  It has to be because I’ve got a couple of cases that very well may end up in SCOTUS.  It’s a rare thing for lawyers (and no, I’m not going to be arguing anything, but I certainly will get to write a couple brieves, and that in and of itself is pretty fucking sweet), but it might actually happen, which means I need to go about getting myself admitted to practice in SCOTUS pretty soon, which in turn means I need to find someone to sponsor me — like AA.  (It’s a small cross-eyed bear for the chance to get one of those cool certificates with the old timey calligraphy.)

The point is, I can’t go mouthing off about how certain Italian jurists who wear certain black robes make me feel a certain way about certain flammable items.  So I’m not gonna do it.  Wouldn’t be prudent — at this juncture.

Instead, I’m going to let you, dear reader, imagine what my reaction to Scalia’s comments would be.  Just fill in some fun words wherever you see blanks.  If you’re feeling ambitious, tell me what you came up with in the comment section. Consider this a mad lib blogging experiment.

If you hate it, just shut up about it, skip to the end, and watch the damn videos.

From California Lawyer [the unsullied version of the Q & A is first, and the mad lib version follows]:

Q. How would you characterize the role of the Supreme Court in American society, now that you’ve been a part of it for 24 years?

I think it’s a highly respected institution. It was when I came, and I don’t think I’ve destroyed it. I’ve been impressed that even when we come out with opinions that are highly unpopular or even highly—what should I say—emotion raising, the people accept them, as they should. The one that comes most to mind is the election case of Bush v. Gore. Nobody on the Court liked to wade into that controversy. But there was certainly no way that we could turn down the petition for certiorari. What are you going to say? The case isn’t important enough? And I think that the public ultimately realized that we had to take the case. … I was very, very proud of the way the Court’s reputation survived that, even though there are a lot of people who are probably still mad about it.

You believe in an enduring constitution rather than an evolving constitution. What does that mean to you?

In its most important aspects, the Constitution tells the current society that it cannot do [whatever] it wants to do. It is a decision that the society has made that in order to take certain actions, you need the extraordinary effort that it takes to amend the Constitution. Now if you give to those many provisions of the Constitution that are necessarily broad—such as due process of law, cruel and unusual punishments, equal protection of the laws—if you give them an evolving meaning so that they have whatever meaning the current society thinks they ought to have, they are no limitation on the current society at all. If the cruel and unusual punishments clause simply means that today’s society should not do anything that it considers cruel and unusual, it means nothing except, “To thine own self be true.”

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?

Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.

What do you do when the original meaning of a constitutional provision is either in doubt or is unknown?

I do not pretend that originalism is perfect. There are some questions you have no easy answer to, and you have to take your best shot. … We don’t have the answer to everything, but by God we have an answer to a lot of stuff … especially the most controversial: whether the death penalty is unconstitutional, whether there’s a constitutional right to abortion, to suicide, and I could go on. All the most controversial stuff. … I don’t even have to read the briefs, for Pete’s sake.

…

You’ve sometimes expressed thoughts about the culture in which we live. For example, in Lee v. Weisman you wrote that we indeed live in a vulgar age. What do you think accounts for our present civic vulgarity?

Gee, I don’t know. I occasionally watch movies or television shows in which the f-word is used constantly, not by the criminal class but by supposedly elegant, well-educated, well-to-do people. The society I move in doesn’t behave that way. Who imagines this? Maybe here in California. I don’t know, you guys really talk this way?

Q. How would you characterize the role of the Supreme Court in American society, now that you’ve been a part of it for 24 years?

I think it’s a highly respected institution. It was when I came, and I don’t think I’ve destroyed it. [What the ___?] I’ve been impressed that even when we come out with opinions that are highly unpopular or even highly—what should I say—emotion raising [No that's not what you should say; you should say ____.] , the people accept them, as they should.  [You know what you should do?  You should  ___ in a very __ ___.] The one that comes most to mind is the election case of Bush v. Gore.  Nobody on the Court liked to wade into that controversy.  [Oh really?  Then why the ___ did you ___ing  ___?] But there was certainly no way that we could turn down the petition for certiorari. [Are you __ing ___?  There was too a way!  You could easily have ___!  Go jump up your __ ___.] What are you going to say? The case isn’t important enough? [What about your ___ing love of ___ing states' rights!!??] And I think that the public ultimately realized that we had to take the case. [The ___ it did!  Half the country was so ____ that we couldn't even ___ without ___ing!] … I was very, very proud of the way the Court’s reputation survived that, even though there are a lot of people who are probably still mad about it. [You're ___ right we're still mad about it!  So are the eleventy billion brown people all over the world who we've bombed to ____ all in the name of ___ing Shock and Awe.  You're such a ___.  You really ought to consider ___ instead of telling people to "get over it [Bush v. Gore]; it’s so old by now.” It was ten ___ing years ago and we’re still ___ing suffering the consequence of your ___ery, for ___’s sake!]

You believe in an enduring constitution rather than an evolving constitution. What does that mean to you?

In its most important aspects, the Constitution tells the current society that it cannot do [whatever] it wants to do. It is a decision that the society has made that in order to take certain actions, you need the extraordinary effort that it takes to amend the Constitution. Now if you give to those many provisions of the Constitution that are necessarily broad—such as due process of law, cruel and unusual punishments, equal protection of the laws—if you give them an evolving meaning so that they have whatever meaning the current society thinks they ought to have, they are no limitation on the current society at all. If the cruel and unusual punishments clause simply means that today’s society should not do anything that it considers cruel and unusual, it means nothing except, “To thine own self be true.” [What the ___ are you ___ ___!!!!???]

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?

Yes, yes. Sorry, to tell you that. [ ___, please!] … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. [Oh my ___ing ___ you are such a ___!  You make me want to ___ myself with a ___ ___ right in my own ___.] Nobody ever thought that that’s what it meant. [Tell that to Justices Burger, Marshall, Black, Douglas, Harlan, Brennan, Stewart, White, and Blackmun, you ____wit.]

Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.  [How'd that work out  for the Little Rock 9, you ___ing  ___!!??] You don’t need a constitution to keep things up-to-date. [Then why have one at all for ___'s ___?] All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. [What the ___?!] Persuade your fellow citizens it’s a good idea and pass a law. [Or have the Mormon Church force its congregants to ____ ___ because if they don't they will ___ in ____ for all ___.] That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society. [ ___ F. ___.]

What do you do when the original meaning of a constitutional provision is either in doubt or is unknown?

I do not pretend that originalism is perfect. [Oh gee, thanks.  That's really ___ of you.] There are some questions you have no easy answer to, and you have to take your best shot. … We don’t have the answer to everything, but by God we have an answer to a lot of stuff … especially the most controversial: whether the death penalty is unconstitutional, whether there’s a constitutional right to abortion, to suicide, and I could go on. All the most controversial stuff. … I don’t even have to read the briefs, for Pete’s sake. [Jesus __ on a ___. ]

…

You’ve sometimes expressed thoughts about the culture in which we live. For example, in Lee v. Weisman you wrote that we indeed live in a vulgar age. What do you think accounts for our present civic vulgarity?

Gee, I don’t know. I occasionally watch movies or television shows in which the f-word is used constantly, not by the criminal class but by supposedly elegant, well-educated, well-to-do people. The society I move in doesn’t behave that way. [What society is that?  The ___ing  ____ who _____ all the ____-ing ____??!!] Who imagines this? Maybe here in California.  [Don't you ___ talk ___ about California.  We will ___ your ___ ___!!] I don’t know, you guys really talk this way? [FUCK YEAH WE DO!!!]¹

Now that you’ve had fun (or not — probably not) playing my little game, watch this video:

[bonus video after the jump]

Colbert for the win.  Per the yoozsh.

¹ Shorter: “Bitches and homos suck.  I rule.  Scalia out!” ::drops mic::

[cross-posted here at Balloon Juice.]

[ed. 6/12/11 to add unsullied version of Q&A]