Thursday, March 10, 2011

Nothing good to say?...

I have only one positive thought about Justice Antonin Scalia’s remarks about his fellow justices in his caustic dissent in Michigan v. Bryan, as reported by Linda Greenhouse in Thursday’s New York Times, viz. that he didn’t call anyone out by name.  He did everything short of that, though.  
Michigan v. Bryan concerns the Sixth Amendment to the constitution which states that an accused person has a right to confront his accuser.  Justice Scalia has long approached Sixth Amendment issues as a constitutional purist.  (And he wishes to be the purist of the pure.)  That is to say, he believes that this amendment should be applied as it was originally written and intended.  The present guiding precedent in the current court was written by Scalia in Crawford v. Washington, in which it was decided that if a statement was “testimonial” and the witness could not appear in court, the statement stayed out, unless the defendant had a previous opportunity to confront the witness.
Michigan v. Bryan was written by Justice Sonia Sotomayor and she was joined by 6 others.  Only Scalia and Ruth Bader Ginsburg dissented.  (Justice Elena Kagan did not vote.)  
The case involves the statements that were made to the police by a bleeding, dying man, lying in the parking lot of a gas station in Detroit in the midst of an ongoing police investigation or as Greenhouse explained:  [Here]
Rather than trying to obtain a dying man’s testimony for later use in a courtroom, [Sotomayor wrote that] the police were urgently investigating what they believed to be an ‘ongoing emergency,’ someone with a gun on the loose on the streets of Detroit. Under that view of the facts, the victim’s statements were not “testimonial,” meaning that their use at trial did not violate the defendant’s right under the Sixth Amendment to ‘confront’ an accuser who was unavailable for cross-examination.”
According to Greenhouse, this reasoning “enraged” Scalia.  He said it was obvious that the police were collecting evidence for a later trial and any other interpretation of the facts is “so transparently false that professing to believe it demeans this institution.”   He went on to rant about a “gross distortion of the facts,” “utter nonsense,” “unprincipled.”  Greenhouse pointed out that these were only a sampling of the “zingers the dyspeptic justice aimed at Justice Sotomayor’s opinion.”  
Yes, “dyspeptic justice” is what Linda Greenhouse wrote and who but Clarence Thomas could disagree, although we must note that Thomas did not join Scalia in the dissent this time.  Perhaps after Thomas’s recently widely publicized and equally dyspeptic remarks to a meeting of the conservative Federalist society, he is attempting to keep a low profile--and his day job. [Here]
Greenhouse listed some of the unnecessarily sharp language Scalia has thrown at the decisions of his colleagues in the past.  In 1989 he wrote that Justice Sandra Day O’Connor’s position in the Webster case (Webster v. Reproductive Health Services) was “irrational” and “cannot be taken seriously.”  Sexist?  Greenhouse begs the question by pointing out that Scalia has also been nasty to men on the court.  For instance, Scalia described a majority opinion written by Justice Alito as “incoherent.”  However, Greenhouse does acknowledge that in the climate of a gentler 1989, “the insults Scalia delivered to Justice O’Connor appeared shocking.” 
Greenhouse concludes by asking the same question that we all have.  What in heaven's name does Scalia think that he is accomplishing with these bullying, smarty pants barbs?  They certainly do not add weight and cogency to his decisions.  
Scalia was appointed to the bench in 1986 by Ronald Reagan and in all that time what has this longest-serving associate justice on the present court accomplished?  Surely, he can’t be proud of his judicial legacy and his recent lecture to Michelle Bachman’s Congressional caucus will not even be a footnote in any history book, unless he writes it himself. 
Linda Greenhouse reminds us that March 11th is Antonin Scalia’s 75th birthday.  What about retirement, Mr. Associate Justice???
My Mother would have had important advice for Justice Scalia:
  “If you have nothing good to say..."

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