Tuesday, October 29, 2013 3:08:22 AM
In Conversation: Antonin Scalia
(Photo: Platon)
On the eve of a new Supreme Court session, the firebrand justice discusses gay rights and media echo chambers, Seinfeld and the Devil, and how much he cares about his intellectual legacy (“I don’t”).
By Jennifer Senior
Published Oct 6, 2013
On September 26—a day that just happened to be the 27th anniversary of his swearing-in as associate justice—Antonin Scalia entered the Supreme Court’s enormous East Conference Room so casually that one might easily have missed him. He is smaller than his king-size persona suggests, and his manner more puckish than formal. Washingtonians may know Scalia as charming and disarming, but most outsiders tend to regard him as either a demigod on stilts or a menace to democracy, depending on which side of the aisle they sit. A singularity on the Court and an icon on the right, Scalia is perhaps more responsible than any American alive for the mainstreaming of conservative ideas about -jurisprudence—in particular the principles of originalism ¬(interpreting the Constitution as the framers intended it rather than as an evolving document) and textualism (that statutes must be ¬interpreted based on their words alone). And he has got to be the only justice to ever use the phrase “argle-bargle” in a dissent.
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You came to Washington as a lawyer during the Nixon administration, just before Watergate. What on Earth was that like?
It was a sad time. It was very depressing. Every day, the Washington Post would come out with something new—it trickled out bit by bit. Originally, you thought, It couldn’t be, but it obviously was. As a young man, you’re dazzled by the power of the White House and all that. But power tends to corrupt.
Then you served in the Ford administration. That must have been an awfully lonely time to be a young conservative.
It was a terrible time, not for the Republican Party, but for the presidency. It was such a wounded and enfeebled presidency, and Congress was just eating us alive. I mean, we had a president who had never been elected to anything except … what? A district in Michigan? Everything was in chaos.
It was a time when people were talking about “the imperial presidency.” I knew very well that the 900-pound gorilla in Washington is not the presidency. It’s Congress. If Congress can get its act together, it can roll over the president. That’s what the framers thought. They said you have to enlist your jealousy against the legislature in a ¬democracy—that will be the source of tyranny.
But weren’t you just saying that you learned from Watergate that presidents aren’t incorruptible?
What, and Congress is? I mean, they’re all human beings. Power tends to corrupt. But the power in Washington resides in Congress, if it wants to use it. It can do anything—it can stop the Vietnam War, it can make its will felt, if it can ever get its act together to do anything.
Had you already arrived at originalism as a philosophy?
I don’t know when I came to that view. I’ve always had it, as far as I know. Words have meaning. And their meaning doesn’t change. I mean, the notion that the Constitution should simply, by decree of the Court, mean something that it didn’t mean when the people voted for it—frankly, you should ask the other side the question! How did they ever get there?
But as law students, they were taught that the Constitution evolved, right? You got that same message consistently in class, yet you had other ideas.
I am something of a contrarian, I suppose. I feel less comfortable when everybody agrees with me. I say, “I better reexamine my position!” I probably believe that the worst opinions in my court have been unanimous. Because there’s nobody on the other side pointing out all the flaws.
Really? So if you had the chance to have eight other justices just like you, would you not want them to be your colleagues?
No. Just six.
That was a serious question!
What I do wish is that we were in agreement on the basic question of what we think we’re doing when we interpret the Constitution. I mean, that’s sort of rudimentary. It’s sort of an embarrassment, really, that we’re not. But some people think our job is to keep it up to date, give new meaning to whatever phrases it has. And others think it’s to give it the meaning the people ratified when they adopted it. Those are quite different views.
You’ve described yourself as a fainthearted originalist. But really, how fainthearted?
I described myself as that a long time ago. I repudiate that.
So you’re a stouthearted one.
I try to be. I try to be an honest originalist! I will take the bitter with the sweet! What I used “fainthearted” in reference to was—
Flogging, right?
Flogging. And what I would say now is, yes, if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional. I gave a talk once where I said they ought to pass out to all federal judges a stamp, and the stamp says—Whack! [Pounds his fist.]—STUPID BUT ¬CONSTITUTIONAL. Whack! [Pounds again.] STUPID BUT ¬CONSTITUTIONAL! Whack! ¬STUPID BUT ¬CONSTITUTIONAL … [Laughs.] And then somebody sent me one.
(Photo: Platon)
So are there things in the Constitution you find stupid? I remember Judge Bork saying that there were few people who understood what the Ninth Amendment meant, as if it was ¬partially covered by an inkblot.
You know, in the early years, the Bill of Rights referred to the first eight amendments. They didn’t even count the ninth. The Court didn’t use it for 200 years. If I’d been required to identify the Ninth Amendment when I was in law school or in the early years of my practice, and if my life depended on it, I couldn’t tell you what the Ninth Amendment was.
Do you think there are flaws in the Constitution?
The one provision that I would amend is the amendment provision. And that was not originally a flaw. But the country has changed so much. With the divergence in size between California and Rhode Island—I figured it out once, I think if you picked the smallest number necessary for a majority in the least ¬populous states, something like less than 2 percent of the population can prevent a constitutional amendment. But other than that, some things have not worked out the way the framers anticipated. But that’s been the fault of the courts, not the fault of the draftsmen.
What about sex discrimination? Do you think the Fourteenth Amendment covers it?
Of course it covers it! No, you can’t treat women differently, give them higher criminal sentences. Of course not.
A couple of years ago, I think you told California Lawyer something different.
What I was referring to is: The issue is not whether it prohibits discrimination on the basis of sex. Of course it does. The issue is, “What is discrimination?”
If there’s a reasonable basis for not ¬letting women do something—like going into combat or whatnot ...
Let’s put it this way: Do you think the same level of scrutiny that applies to race should apply to sex?
I am not a fan of different levels of scrutiny. Strict scrutiny, intermediate scrutiny, blah blah blah blah. That’s just a thumb on the scales.
But there are some intelligent reasons to treat women differently. I don’t think anybody would deny that. And there really is no, virtually no, intelligent reason to treat people differently on the basis of their skin.
What’s your media diet? Where do you get your news?
Well, we get newspapers in the morning.
“We” meaning the justices?
No! Maureen and I.
Oh, you and your wife …
I usually skim them. We just get The Wall Street Journal and the Washington Times. We used to get the Washington Post, but it just … went too far for me. I couldn’t handle it anymore.
What tipped you over the edge?
It was the treatment of almost any conservative issue. It was slanted and often nasty. And, you know, why should I get upset every morning? I don’t think I’m the only one. I think they lost subscriptions partly because they became so shrilly, shrilly liberal.
So no New York Times, either?
No New York Times, no Post.
And do you look at anything online?
I get most of my news, probably, driving back and forth to work, on the radio.
Not NPR?
Sometimes NPR. But not usually.
Talk guys?
Talk guys, usually.
Do you have a favorite?
You know who my favorite is? My good friend Bill Bennett. He’s off the air by the time I’m driving in, but I listen to him sometimes when I’m shaving. He has a wonderful talk show. It’s very thoughtful. He has good callers. I think they keep off stupid people.
That’s what producers get paid for.
That’s what’s wrong with those talk shows.
Let’s talk about the state of our politics for a moment. I know you haven’t been to a State of the Union address for a while, and I wanted to know why.
It’s childish.
When was the last time you went to one?
Oh, my goodness, I expect fifteen years. But I’m not the only one who didn’t go. John Paul Stevens never went, Bill Rehnquist never went during his later years. Because it is a childish spectacle. And we are trucked in just to give some dignity to the occasion. I mean, there are all these punch lines, and one side jumps up—¬Hooray! And they all cheer, and then another punch line, and the others stand up, Hooray! It is juvenile! And we have to sit there like bumps on a log. We can clap if somebody says, “The United States is the greatest country in the world.” Yay! But anything else, we have to look to the chief justice. Gee, is the chief gonna clap? It didn’t used to be that bad.
When?
The Gipper may have been the one who started it. He’s the one who brought in people he would recognize in the audience, and things of that sort—made it a television spectacle. And once it becomes a television spectacle, it’s nothing serious.
Of course, the press has the whole thing, and they’re up in the gallery—you can hear them turning pages as the president is speaking. Why doesn’t he just print it out and send it over?
It’s like the Haggadah.
In the years when I went, we used to take bets on how long the speech would be. Rehnquist loved to have betting pools—on football games, baseball games.
Did you ever win?
I never won.
It was recently reported that the justices don’t communicate with one another by e-mail. Do you go online at all?
Yeah. Sure, I use the Internet.
You’ve got grandkids. Do you feel like the Internet has coarsened our culture at all?
I’m nervous about our civic culture. I’m not sure the Internet is largely the cause of it. It’s certainly the cause of careless writing. People who get used to blurbing things on the Internet are never going to be good writers. And some things I don’t understand about it. For example, I don’t know why anyone would like to be “friended” on the network. I mean, what kind of a narcissistic society is it that ¬people want to put out there, This is my life, and this is what I did yesterday? I mean … good grief. Doesn’t that strike you as strange? I think it’s strange.
I’ve gotten used to it.
Well, I am glad that I am not raising kids today. And I’m rather pessimistic that my grandchildren will enjoy the great society that I’ve enjoyed in my lifetime. I really think it’s coarsened. It’s coarsened in so many ways.
Like what?
One of the things that upsets me about modern society is the coarseness of manners. You can’t go to a movie—or watch a television show for that matter—without hearing the constant use of the F-word—including, you know, ladies using it. People that I know don’t talk like that! But if you portray it a lot, the society’s going to become that way. It’s very sad.
And you can’t have a movie or a television show without a nude sex scene, very often having no relation to the plot. I don’t mind it when it is essential to the plot, as it sometimes is. But, my goodness! The society that watches that becomes a coarse society.
What do you make of the new pope?
He’s the Vicar of Christ. He’s the chief. I don’t run down the pope.
I’m not inviting you to run down the pope. But what do you think of his recent comments, that the church ought to focus less on divisive issues and more on helping the poor?
I think he’s absolutely right. I think the church ought to be more evangelistic.
But he also wanted to steer its emphasis away from homosexuality and abortion.
Yeah. But he hasn’t backed off the view of the church on those issues. He’s just saying, “Don’t spend all our time talking about that stuff. Talk about Jesus Christ and evangelize.” I think there’s no indication whatever that he’s changing doctrinally.
I spent my junior year in Switzerland. On the way back home, I spent some time in England, and I remember going to Hyde Park Corner. And there was a Roman Catholic priest in his collar, standing on a soapbox, preaching the Catholic faith and being heckled by a group. And I thought, My goodness. I thought that was admirable. I have often bemoaned the fact that the Catholic church has sort of lost that evangelistic spirit. And if this pope brings it back, all the better.
The one thing I did think, as he said those somewhat welcoming things to gay men and women, is, Huh, this really does show how much our world has changed. I was wondering what kind of personal exposure you might have had to this sea change.
I have friends that I know, or very much suspect, are homosexual. Everybody does.
Have any of them come out to you?
No. No. Not that I know of.
Has your personal attitude softened some?
Toward what?
Homosexuality.
I don’t think I’ve softened. I don’t know what you mean by softened.
If you talk to your grandchildren, they have different opinions from you about this, right?
I don’t know about my grandchildren. I know about my children. I don’t think they and I differ very much. But I’m not a hater of homosexuals at all.
I still think it’s Catholic teaching that it’s wrong. Okay? But I don’t hate the people that engage in it. In my legal opinions, all I’ve said is that I don’t think the Constitution requires the people to adopt one view or the other.
There was something different about your DOMA opinion, I thought. It was really pungent, yes, but you seemed more focused on your colleagues’ jurisprudence. You didn’t talk about a gay lobby, or about the fact that people have the right to determine what they consider moral. In Lawrence v. Texas, you said Americans were within their rights in “protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”
I would write that again. But that’s not saying that I personally think it’s destructive. Americans have a right to feel that way. They have a democratic right to do that, and if it is to change, it should change democratically, and not at the ukase of a Supreme Court.
The what?
U-K-A-S-E. Yeah. I think that’s how you say it. It’s a mandate. A decree.
Whatever you think of the opinion, Justice ¬Kennedy is now the Thurgood Marshall of gay rights.
[Nods.]
I don’t know how, by your lights, that’s going to be regarded in 50 years.
I don’t know either. And, frankly, I don’t care. Maybe the world is spinning toward a wider acceptance of homosexual rights, and here’s Scalia, standing athwart it. At least standing athwart it as a constitutional entitlement. But I have never been custodian of my legacy. When I’m dead and gone, I’ll either be sublimely happy or terribly unhappy.
You believe in heaven and hell?
Oh, of course I do. Don’t you believe in heaven and hell?
No.
Oh, my.
Does that mean I’m not going?
[Laughing.] Unfortunately not!
Wait, to heaven or hell?
It doesn’t mean you’re not going to hell, just because you don’t believe in it. That’s Catholic doctrine! Everyone is going one place or the other.
But you don’t have to be a Catholic to get into heaven? Or believe in it?
Of course not!
Oh. So you don’t know where I’m going. Thank God.
I don’t know where you’re going. I don’t even know whether Judas Iscariot is in hell. I mean, that’s what the pope meant when he said, “Who am I to judge?” He may have recanted and had severe penance just before he died. Who knows?
Can we talk about your drafting process—
[Leans in, stage-whispers.] I even believe in the Devil.
You do?
Of course! Yeah, he’s a real person. Hey, c’mon, that’s standard Catholic doctrine! Every Catholic believes that.
Every Catholic believes this? There’s a wide variety of Catholics out there …
If you are faithful to Catholic dogma, that is certainly a large part of it.
Have you seen evidence of the Devil lately?
You know, it is curious. In the Gospels, the Devil is doing all sorts of things. He’s making pigs run off cliffs, he’s possessing people and whatnot. And that doesn’t happen very much anymore.
No.
It’s because he’s smart.
So what’s he doing now?
What he’s doing now is getting people not to believe in him or in God. He’s much more successful that way.
That has really painful implications for atheists. Are you sure that’s the ¬Devil’s work?
I didn’t say atheists are the Devil’s work.
Well, you’re saying the Devil is ¬persuading people to not believe in God. Couldn’t there be other reasons to not believe?
Well, there certainly can be other reasons. But it certainly favors the Devil’s desires. I mean, c’mon, that’s the explanation for why there’s not demonic possession all over the place. That always puzzled me. What happened to the Devil, you know? He used to be all over the place. He used to be all over the New Testament.
Right.
What happened to him?
He just got wilier.
He got wilier.
Isn’t it terribly frightening to believe in the Devil?
You’re looking at me as though I’m weird. My God! Are you so out of touch with most of America, most of which believes in the Devil? I mean, Jesus Christ believed in the Devil! It’s in the Gospels! You travel in circles that are so, so removed from mainstream America that you are appalled that anybody would believe in the Devil! Most of mankind has believed in the Devil, for all of history. Many more intelligent people than you or me have believed in the Devil.
I hope you weren’t sensing contempt from me. It wasn’t your belief that surprised me so much as how boldly you expressed it.
I was offended by that. I really was.
I’m sorry to have offended you!
Have you read The Screwtape Letters?
Yes, I have.
So, there you are. That’s a great book. It really is, just as a study of human nature.
Can I ask about your engagement with regular pop culture?
I’m pretty bad on regular pop culture.
I know you watched the show 24. Do you also watch Homeland?
I don’t watch Homeland. I don’t even know what Homeland is. I watched one episode of—what is it? Duck Dynasty?
What?
I don’t watch it regularly, but I’m a hunter. I use duck calls …
Did you just stumble on it by accident?
No! So many people said “Oh, it’s a great show” that I thought I’d better look at it. Have you looked at it?
No. But there are three books on the New York Times’ best-seller list about Duck Dynasty.
Is that right?
Yes. Three. Did you watch The ¬Sopranos? Mad Men?
I watched The Sopranos, I saw a couple of episodes of Mad Men. I loved Seinfeld. In fact, I got some CDs of Seinfeld. ¬Seinfeld was hilarious. Oh, boy. The Nazi soup kitchen? No soup for you!
Speaking of Duck Dynasty, how does a nice boy from Queens become a hunter?
You know, it may be genetic. My grandfather—my namesake, his name is Antonino—he was an avid hunter. He used to disappear for a week—his family would be very upset—because he’d be off in the hills of Sicily, hunting. My last memories of him were—we had a bungalow, which he had built out on Long Island, back in the days when Long Island was really the country. I went in the woods hunting rabbits with him—there’s a photo of me holding a rabbit and his twelve-gauge shotgun. Then he got too old to go in the woods, but my uncle Frank had a large vegetable garden, and my grandfather would sit on the back porch of this bungalow, holding his twelve-gauge shotgun, and would wait for the rabbits to come to him in the vegetable garden. Boom! He would shoot them there.
There isn’t much sport in that.
Well, they’re hard to hit.
If you’re waiting for them to come to your garden?
Listen, when you’re 85 …
Fair enough.
And I inherited his gun. It was an L.C. Smith, which was a very expensive shotgun from the time. It’s corroded about six inches down from the end of the barrel, because that’s where he held it while he was waiting for the rabbits, and the salts from your hand corrode the barrel.
My grandfather is partly the answer. But I also got into it because my eldest son married a girl from Louisiana, whose father was an avid hunter. He got me into deer hunting up in Mississippi. There, I fell in with some Cajuns—including Louis Prejean, the brother of Sister Prejean. He’s as conservative as she is liberal.
I was going to ask.
I got in with them, and I got into goose hunting, duck hunting, redfish fishing—it has been a great addition to my later years. It gets me outside the Beltway with people of the sort I had never known before. They could live in the woods. Give ’em a gun, they could survive in the woods on their own. It’s nice to get in with a different crowd. None of them are lawyers. Or very few.
Here’s another thing I find unexpected about you: that you play poker. Do not take this the wrong way, but you strike me as the kind of person who would be a horrible poker player.
Shame on you! I’m a damn good poker player.
But aren’t you the kind of guy who always puts all of his cards on the table? I feel like you would be the worst bluffer ever.
You can talk to the people in my poker set.
Do you have a tell?
What?
A tell.
What’s a tell?
What’s a tell? Are you joking?
No.
A tic or behavior that betrays you’re bluffing.
Oh! That’s called a tell? No. I never … do you play poker?
Badly. But I feel like Washington has been playing a pretty high-stakes game lately. You’ve seen more Congresses than I have, and you’ve seen this nation go through more turbulent events than I have. But now seems an especially ¬acerbic moment.
It’s a nasty time. It’s a nasty time. When I was first in Washington, and even in my early years on this Court, I used to go to a lot of dinner parties at which there were people from both sides. Democrats, Republicans. Katharine Graham used to have dinner parties that really were quite representative of Washington. It doesn’t happen anymore.
True, though earlier you expressed your preference for conservative media, which itself can be isolating in its own way.
Oh, c’mon, c’mon, c’mon! [Laughs.] Social intercourse is quite different from those intellectual outlets I respect and those that I don’t respect. I read newspapers that I think are good newspapers, or if they’re not good, at least they don’t make me angry, okay? That has nothing to do with social intercourse. That has to do with “selection of intellectual fodder,” if you will.
When was the last party you went to that had a nice healthy dose of both liberals and conservatives?
Geez, I can’t even remember. It’s been a long time.
Is that true on the Court as well? Are things tenser in this building? Were there ever more harmonious groupings of justices than others?
No. Everybody I’ve served with on the Court I’ve regarded as a friend. Some were closer than others, but I didn’t consider myself an enemy of any of them. Now, that hasn’t always been the case. Frankfurter and Douglas, the Harvard Law professor and the Yale Law professor, hated each other. They wouldn’t talk to each other. Imagine being on a committee of nine people where two of them won’t talk to each other! But it’s never been the case since I’ve been on the Court.
You were asked this summer about the most wrenching case you’ve decided, and you ¬answered, “Is Obamacare too recent?”
[Laughs.]
Is that true?
No. Probably the most wrenching was Morrison v. Olson, which involved the independent counsel. To take away the power to prosecute from the president and give it to somebody who’s not under his control is a terrible erosion of presidential power. And it was wrenching not only because it came out wrong—I was the sole dissenter—but because the opinion was written by Rehnquist, who had been head of the Office of Legal Counsel, before me, and who I thought would realize the importance of that power of the president to prosecute. And he not only wrote the opinion; he wrote it in a manner that was more extreme than I think Bill Brennan would have written it. That was wrenching.
That sheds new light on your famous odd-couple friendship with Ruth Bader Ginsburg. Do you think it’s easier to be close to a colleague who is so ¬ideologically different?
There may be something to that. If you have low expectations, you’re not disappointed. When it’s somebody who you think is basically on your side on these ideological controversies, and then that person goes over to the dark side, it does make you feel bad.
Who was or is your favorite sparring partner on the bench? The person who makes or made your ideas and opinions better?
Probably John Paul Stevens. There are some justices who adopt a magisterial approach to a dissent. Rehnquist used to do it. [He turns his nose up theatrically, flutters his hand in dismissal.] Just, Don’t even respond to the dissent. This is the opinion of the Court, and the hell with you. I am not like that. I think you should give the dissenter the respect to respond to the points that he makes. And so did John Stevens. So he and I used to go back and forth almost endlessly.
Are there any lawyers who you also consider really formidable?
That’s one of the biggest changes on the Court since I’ve been here. When I arrived, there really was not what you could call a Supreme Court bar—people who appear regularly. But now we have people who appear four, five times a term. What has happened is the big law firms have adopted Supreme Court practices. I’m not sure they make money on it, but they get prestige from it. So we get very good lawyers. Many of them ex–solicitor generals.
How does that change your job?
It makes my job easier. We are ¬dependent upon these people who have lived with the case for months—in many cases years—to clarify the facts and to clarify the law. I come to the thing maybe a month beforehand. These lawyers—the reason to listen to them is that they presumably know more about the subject than you do.
Another change is that many of the states have adopted a new office of solicitor general, so that the people who come to argue from the states are people who know how to conduct appellate argument. In the old days, it would be the attorney general—usually an elected attorney general. And if he gets a case into the Supreme Court [pumps his fist], he’s going to argue it himself! Get the press and whatnot. Some of them were just disasters. They were throwing away important points of law, not just for their state, but for the other 49.
Let’s talk about your opinions for a second. Do you draft them yourself? What’s your process?
I almost never do the first draft.
How do your clerks know your voice so well?
Oh, I edit it considerably between the first and the last.
How do you choose your clerks?
Very carefully. What I’m looking for is really smart people who don’t necessarily have to share my judicial philosophy, but they cannot be hostile to it. And can let me be me when they draft opinions, can write opinions that will follow my judicial philosophy rather than their own. And I’ve said often in the past that other things being equal, which they usually are not, I like to have one of the four clerks whose predispositions are quite the opposite of mine—who are social liberals rather than social conservatives. That kind of clerk will always be looking for the chinks in my armor, for the mistakes I’ve made in my opinion. That’s what clerks are for—to make sure I don’t make mistakes. The trouble is, I have found it hard to get liberals like that, who pay attention to text and are not playing in a policy sandbox all the time.
How picky are you about which law schools they come from?
Well, some law schools are better than others. You think they’re all the same?
Now, other things being equal, which they usually are not, I would like to select somebody from a lesser law school. And I have done that, but really only when I have former clerks on the faculty, whose recommendations I can be utterly confident of. Harvard, Yale, Stanford, Chicago, they’re sort of spoiled. It’s nice to get a kid who went to a lesser law school. He’s still got something to prove. But you can’t make a mistake. I mean, one dud will ruin your year.
While your opinions are delectable to read, I’m wondering: Do you ever regret their tone? Specifically, that your tone might have cost you a majority?
No. It never cost me a majority. And you ought to be reluctant to think that any justice of the Supreme Court would make a case come out the other way just to spite Scalia. Nobody would do that. You’re dealing with significant national issues. You’re dealing with real litigants—no. My tone is sometimes sharp. But I think sharpness is sometimes needed to demonstrate how much of a departure I believe the thing is. Especially in my dissents. Who do you think I write my dissents for?
Law students.
Exactly. And they will read dissents that are breezy and have some thrust to them. That’s who I write for.
Is your favorite one-liner still the ¬sausage one? “This case, involving legal requirements for the content and ¬labeling of meat products such as ¬frankfurters, affords a rare opportunity to explore simultaneously both parts of Bismarck’s aphorism that ‘No man should see how laws or sausages are made.’ ”
It’s the best opening line of an opinion.
It was a really good opinion.
Isn’t that good? I was on the Court of Appeals, that wasn’t even up here. But my favorite one-liner is from Morrison v. Olson: “But this wolf comes as a wolf.” You know the one I’m talking about?
Yes.
That’s a great one. You gotta read the whole paragraph. Boom. [Punches the air.] But I often worry when I go back and read one of my early opinions like ¬Morrison v. Olson. I say, “God, that’s a good opinion. I’m not sure I could write as good an opinion today.” You always wonder whether you’re losing your grip and whether your current opinions are not as good as your old ones.
Wasn’t it Stevens who said to Souter, “Tell me when I’m losing it and need to retire?”
No, it wasn’t Stevens. I think it was Holmes who asked Brandeis.
Oh, so I got it completely wrong.
[Smiles.] Completely wrong.
But how will you know when it’s time to go? It doesn’t seem like you have anything to worry about at the moment, but it’s interesting to hear you even flick at that.
Oh, I’ll know when I’m not hitting on all eight cylinders.
Are you sure? All these people in ¬public life—athletes in particular—never have a clue.
No, I’ll know.
What will the telltale sign be?
One will be that I won’t enjoy it as much as I do. I think that’s the beginning of the end. I was worried lately about the fact that the job seems easier. That I really don’t have to put in the excessively long hours that I used to. I still work hard. But it does seem easier than it used to. And that worried me. You know: Maybe I’m getting lazy. You know, I’m not doing it as thoroughly, or whatever. But after due reflection, I’ve decided the reason it’s getting easier is because so many of the cases that come before us present the issue of whether we should extend one of the opinions from the previous 27 years that I’ve been here, which I dissented from in the first place!
Yet today, you’re a conservative icon, and federalist societies abound on ¬university campuses, and originalism and textualism are no longer marginal. Do you feel like you’re winning or losing the battle for constitutional interpretation?
I don’t know how much progress I’ve made on originalism. That’s to be seen. I do think originalism is more respectable than it was. But there’s still only two justices up here who are thoroughgoing originalists. I do think things are better than they were. For example, I truly thought I’d never see an originalist on the faculty of Harvard Law School. You know, everybody copies Harvard—that’s the big ship. There are now three originalists on the faculty, and I think I heard that they’ve just hired, or are considering hiring, a fourth. I mean, that’s amazing to me. Elena Kagan did that, and the reason she did it is that you want to have on your faculty representatives of all responsible points of view. What it means is that at least originalism is now regarded as a respectable approach to constitutional interpretation. And it really wasn’t twenty years ago, it was not even worth talking about in serious academic circles.
An area where I think I have made more progress is textualism. I think the current Court pays much more attention to the words of a statute than the Court did in the eighties. And uses much less legislative history. If you read some of our opinions from the eighties, my God, two thirds of the opinions were discussing committee reports and floor statements and all that garbage. We don’t do much of that anymore. And I think I have assisted in that transition.
Fifty years from now, which decisions in your tenure do you think will be heroic?
Heroic?
Heroic.
Oh, my goodness. I have no idea. You know, for all I know, 50 years from now I may be the Justice Sutherland of the late-twentieth and early-21st century, who’s regarded as: “He was on the losing side of everything, an old fogey, the old view.” And I don’t care.
Do you think you’re headed in that direction?
I have no idea. There are those who think I am, I’m sure. I can see that happening, just as some of the justices in the early years of the New Deal are now painted as old fogies. It can happen.
Wow, it’s amazing your mind even went there. I ask about a triumph, and you give me another answer entirely, about the possibility of failure. I was expecting you to end on a high note. Do you want to try another stab at a heroic decision?
Heroic is probably the wrong word. I mean the most heroic opinion—maybe the only heroic opinion I ever issued— was my statement refusing to recuse.
From the case involving Vice-¬President Cheney, with whom you’d gone hunting?
I thought that took some guts. Most of my opinions don’t take guts. They take smarts. But not courage. And I was proud of that. I did the right thing and it let me in for a lot of criticism and it was the right thing to do and I was proud of that. So that’s the only heroic thing I’ve done.
As to which is the most impressive opinion: I still think Morrison v. Olson. But look, we have different standards, I suppose, for what’s a great opinion. I care about the reasoning. And the reasoning in Morrison, I thought, was devastating—devastating of the majority. If you ask me which of my opinions will have the most impact in the future, it probably won’t be that dissent; it’ll be some majority opinion. But it’ll have impact in the future not because it’s so beautifully reasoned and so well written. It’ll have impact in the future because it’s authoritative. That’s all that matters, unfortunately.
*
This interview was condensed and edited from two conversations, one in Washington, D.C., and one over the phone, on September 26 and October 3.
Copyright © 2013, New York Media LLC (emphasis in original)
http://nymag.com/news/features/antonin-scalia-2013-10/ [with comments]
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Minnesota Archbishop John Nienstedt Claims Satan Behind Gay Marriage, Condoms And Porn
Since the beginning of man's life on earth, the family has served as the cornerstone of society. The integrity of the family set the standard for society from the beginning of time as the underpinning of our civilization, reflecting the beneficial differences between men and women and the complementarity of their hearts, minds, and bodies. Aristotle argued that the natural progression of human beings flowed from the family via small communities out to the polis. The role of family in today's culture is threatened by many forces, not the least of which is the confrontation between the conjugal view and a revisionist's view of marriage. Contraception, cohabitation and confusion over the influence of gender in the rearing of children contribute to this negative state of affairs. The loss of a Catholic culture supporting marriage and family must be confronted and efforts made to build the culture anew.
http://www.youtube.com/watch?v=QvH7NBAK89g [as embedded (without the detail)]
By Meredith Bennett-Smith
Posted: 09/15/2013 7:53 am EDT | Updated: 09/17/2013 8:13 am EDT
Fornicators beware: sodomy, condoms and pornography are the work of the devil.
That's the message of a speech posted online last week [above, as embedded] by the Catholic Archbishop of St. Paul and Minneapolis, John C. Nienstedt [ http://www.archspm.org/bishops/bishops-detail.php?intResourceID=901 ]. A controversial religious leader with a stridently anti-gay stance [ http://www.startribune.com/local/172975931.html ], Nienstedt originally made the comments while speaking to the conservative Napa Institute Conference on August 2 [ http://napa-institute.org/archbishop-nienstedts-2013-napa-institute-conference-talk/ ]. The speech detailed the importance of family, as well as the devil's multiple attempts to weaken the institution of heterosexual marriage [ http://www.advocate.com/politics/religion/2013/09/11/archbishop-marriage-equality-was-satans-creation ].
"Today, many evil forces have set their sights on the dissolution of marriage and the debasing of family life," Nienstedt said. "Sodomy, abortion, contraception, pornography, the redefinition of marriage, and the denial of objective truth are just some of the forces threatening the stability of our civilization. The source of these machinations is none other than the Father of Lies. Satan knows all too well the value that the family contributes to the fabric of a good solid society, as well as the future of God’s work on earth."
In Nienstedt's opinion of course [ http://www.legatusmagazine.org/family-as-the-foundation-of-culture/ ], "family" means specifically a union "comprised of one man and one woman." Delivered one day after Minnesota began issuing same-sex marriage licenses, the Napa Institute speech is consistent with the archbishop's public statements condemning gay marriage [ http://thenewcivilrightsmovement.com/us-archbishop-satan-is-the-source-of-same-sex-marriage/marriage/2013/09/10/74829 ], notes The New Civil Rights Movement.
Voted Minneapolis blog City Pages' Best Villain of the Twin Cities [ http://www.citypages.com/bestof/2013/award/best-villain-2779553/ ] in 2013, Nienstedt has "used his position to bully proponents and demonize fellow Catholics who disagreed with him," wrote the blog's Jesse Marx [ http://blogs.citypages.com/blotter/2013/09/archbishop_john_nienstedt_blames_the_devil_for_sodomy_condoms_and_marriage_equality.php ]. "He donated more than $650,000 of church money to the anti-gay-marriage cause."
In October of 2012, Nienstedt found himself at the center of a similar controversy when a letter he wrote surfaced in which he tells the mother a young gay man that she must reject her son or go to hell herself.
"I write to inform you that the teaching of the Catholic Church on homosexuality, as described in paragraphs 2357 and 2358 and 2359 of the Catechism of the Catholic Church is rooted in Scripture and based on the Natural Moral Law," Nienstedt wrote, according to ThinkProgress [ http://thinkprogress.org/lgbt/2012/10/09/976841/minnesota-archbishop-told-mother-to-reject-her-gay-son-or-go-to-hell/ ]. "Catholics are bound in conscience to believe this teaching. Those who do not cannot consider themselves to be Catholic and ought not to participate in the sacramental life of the Church... Your eternal salvation may well depend upon a conversation of heart on this topic."
h/t Raw Story [ http://www.rawstory.com/rs/2013/09/13/minneapolis-arch-bishop-blames-satan-for-marriage-equality/ ]
Copyright © 2013 TheHuffingtonPost.com, Inc.
http://www.huffingtonpost.com/2013/09/15/minneapolis-archbishop-gay-marriage-satan-john-nienstedt_n_3927615.html [with (over 5,000) comments]
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Do Bishops Run Your Hospital?
Illustration: Gérard DuBois
The Catholic Church is making health care decisions for more and more Americans—whether they know it or not.
By Stephanie Mencimer
November/December 2013 Issue
One morning in November 2010, an ambulance brought a woman who was 15 weeks pregnant to the emergency room at Sierra Vista Regional Health Center, 70 miles outside Tucson, Arizona. She had been carrying twins and had miscarried one at home in the bathtub. The chances of the second fetus making it were "minuscule," Dr. Robert Holder, the OB-GYN on call that day, later recalled in an affidavit [ http://www.motherjones.com/documents/798242-dr-robert-holder-affidavit ]. He told the woman and her husband that trying to continue the pregnancy would put her at risk of severe bleeding and infection. In short, she needed an emergency abortion.
But there was a problem: Sierra Vista was in the midst of a trial merger with a Catholic hospital company, Carondelet Health Network, which required its doctors to abide by the church's ethical and religious directives. Hospital administrators told Holder that because the surviving fetus still had a heartbeat, he could not perform an abortion. Holder had to send the patient to a hospital in Tucson—a three-hour delay that he believed put her at risk for life-threatening complications.
The doctors at Sierra Vista aren't the only ones to struggle with submitting their medical decisions to a higher authority. A growing number of patients are finding their health care options governed by the church's guidelines as Catholic hospitals, long major players in the health care market, have been on a merger streak, acquiring everything from local hospital systems to medical practices, nursing homes, and health insurance plans.
Between 2001 and 2011, the number of American hospitals affiliated with the Catholic Church grew 16 percent, even as the number of public hospitals and secular nonprofit hospitals dropped 31 percent and 12 percent, respectively, according to an upcoming report by the American Civil Liberties Union and MergerWatch [ http://www.mergerwatch.org/ ], a nonprofit that tracks religious health care mergers. In 2012, Catholic hospitals and health care systems were involved in 24 mergers or acquisitions, according to Irving Levin Associates, a market research firm. Ten of the 25 largest nonprofit hospital systems [ http://www.beckershospitalreview.com/lists/25-largest-non-profit-hospital-systems.html ] in the country are Catholic, and Catholic hospitals care for 1 in 6 [ http://www.chausa.org/docs/default-source/general-files/mini_profile-pdf.pdf?sfvrsn=0 ] American patients. In at least eight states, 30 percent or more of patient admissions are at Catholic facilities.
Catholic hospitals are required to follow health care directives [ http://motherjones.com/documents/798243-ethical-religious-directives-catholic-health ] handed down by the US Conference of Catholic Bishops [ http://www.usccb.org/about/bishops-and-dioceses/index.cfm ]—a group of celibate older men who have become increasingly conservative over the past few decades. (Recall the bishops' ongoing showdown [ http://www.usccb.org/news/2012/12-026.cfm ] with the White House over Obamacare's requirement that health insurance plans cover contraception.) The issues go far beyond abortion. The bishops' directives restrict how doctors in Catholic hospitals may treat everything from miscarriages to terminal illness. How this treatment differs [ http://www.nwlc.org/sites/default/files/pdfs/ibis_factsheet_final.pdf ] from that of secular hospitals is not always disclosed [ http://www.mergerwatch.org/disclosure/ ] to patients.
"When you go into a hospital or an ER, you do not think that there's a bishop between you and your doctor," says Linda McCarthy, CEO of a Planned Parenthood branch in western Washington. In 2010, Peter Sartain, a prominent bishop recently enlisted by the church to crack down on nuns deemed too liberal, was appointed to the Seattle diocese. Not long afterward, he told the Catholic hospital in McCarthy's area to stop performing lab work for Planned Parenthood that the hospital had handled for at least a decade, including tests unrelated to abortion, such as cholesterol screenings. McCarthy publicized the demand and the hospital backed off, for the time being.
"The Catholic bishops are seizing an opportunity to control the health care we all pay for, and they're being wildly successful," says Monica Harrington, the co-chair of Washington Women for Choice. A spate of proposed deals could leave Catholic facilities accounting for 50 percent of the state's hospital admissions. "We could very well end up with three conservative bishops overseeing health care for 6 million people," McCarthy says.
Abortion services are always quick to go when a Catholic hospital takes over, but the changes go much further. In many cases, doctors are prohibited from prescribing birth control, and hospital pharmacies won't sell it. Doctors may even be told not to counsel patients about it. Catholic hospitals have been reluctant to offer emergency contraception to rape victims, and when they do, they first require a pregnancy test to ensure the woman was not pregnant before the assault. The bishops' guidelines forbid tubal ligations and vasectomies. They also extend to end-of-life care: Catholic hospitals may ignore patients' requests to be removed from feeding tubes or life support, even if those wishes are expressed in living wills. And many states [ https://www.aclu.org/maps/non-discrimination-laws-state-state-information-map ] allow religious hospitals to discriminate [ http://www.thestranger.com/seattle/who-would-jesus-fire/Content?oid=16348670 ] against gays and lesbians, both as employees and as patients.
Dr. Bruce Silva, an OB-GYN at Sierra Vista, remembers that during his hospital's trial merger, church officials told doctors they could give chemotherapy to a pregnant woman with breast cancer, "even though you know it will kill the baby—but you can't give her a termination before, because that would kill the baby directly." Sierra Vista ultimately rejected the merger.
Catholic hospitals' treatment of miscarriage often diverges from the generally accepted standards of care followed in secular hospitals, according to Lori Freedman, an assistant professor of obstetrics at the University of California-San Francisco who published a study [ http://www.ansirh.org/_documents/library/freedman_ajob2013.pdf ] on the subject in 2012. Doctors told her about being forced to wait to intervene until a woman was at life-threatening risk. "We often tell patients that we can't do anything in the hospital but watch you get infected," one said.
The church also won't allow doctors to terminate ectopic pregnancies [ http://www.aafp.org/afp/2000/0215/p1080.html ] until a woman is in mortal danger. In these pregnancies, the embryo implants outside of the uterus, most often in a fallopian tube, where it grows and can rupture the tube, potentially causing fatal bleeding. The bishops consider ending these unviable pregnancies a "direct abortion" unless a woman's life is immediately at risk. A doctor quoted in a recent study commissioned by the National Women's Law Center (NWLC) reported seeing several near-fatal tubal ruptures at her Catholic-affiliated hospital.
Despite the dangers such policies pose to patients, Catholic hospitals often do not explain them to patients, and hospitals have fought efforts to require disclosure. The NWLC has accused Catholic hospitals [ http://www.nwlc.org/sites/default/files/pdfs/nwlc_cms_complaint_jan_2011.pdf ] of ignoring "their legal obligations to disclose all treatment options" under Medicare and Medicaid. As a result, "women don't always know what has happened," says Kelli Garcia, senior counsel at the NWLC. "So if their tube ruptures, they don't necessarily know that they could have had different treatment—because what happens within the Catholic hospitals, not only are they not providing treatment, they also aren't providing information about the treatment." The conference of bishops and the Catholic Health Association, which represents more than 600 hospitals, did not respond to requests for comment.
Even doctors who help women get pregnant are affected by the bishops' guidelines, which ban any infertility treatment that "separates procreation from the marital act." That includes in vitro fertilization, artificial insemination, or the use of donor eggs or sperm. Dr. Michael Thomas, a reproductive endocrinologist, had to close his practice in Kentucky and move across the river to the University of Cincinnati after the hospital he was affiliated with merged with [ http://www.stelizabeth.com/history.aspx ] a Catholic institution. Thomas says many people didn't realize the merger would affect not just abortion, but "a couple's ability to get pregnant in the state of Kentucky."
What happens if hospitals refuse to follow the bishops' directives? In 2009, doctors at St. Joseph's Hospital and Medical Center in Phoenix performed a life-saving abortion [ http://www.npr.org/templates/story/story.php?storyId=126985072 ] for a seriously ill mother of four. Afterward, the city's bishop excommunicated a nun on the ethics committee who had approved the procedure. He then demanded that the hospital sign an agreement [ https://www.aclu.org/files/assets/EMTALA-_ACLU_CMS_Follow_Up_Letter-St__Joseph-_12-22-2010_FINAL.pdf ] promising to never again provide emergency abortion care, even when a woman's life was at risk. Hospital administrators believed the agreement violated a federal law requiring hospitals to provide emergency treatment and refused to sign, so the bishop stripped the facility of its Catholic affiliation. The following year, a bishop revoked the Catholic status of a hospital in Bend, Oregon [ http://www.ncregister.com/daily-news/tip_of_the_iceberg_for_church-backed_hospitals/ ], that refused to stop performing tubal ligations.
In the face of blocked [ http://www.nrtoday.com/news/5912919-113/peacehealth-chi-health-based ] deals [ http://www.mergerwatch.org/mergerwatch-news/2012/10/15/its-official-waterbury-hospital-merger-called-off.html ] and growing opposition [ http://www.mergerwatch.org/mergerwatch-news/2012/1/3/louisville-merger-blocked-by-governor.html ] from women's and civil liberties groups, some hospital officials have downplayed the mergers' impact on reproductive care, even arguing that Planned Parenthood will take up the slack. A Washington hospital actually built a $2 million PP facility [ http://www.plannedparenthood.org/ppgnw/PPGNW-and-Swedish-Work-Together-32833.htm ] next door to facilitate its merger with a Catholic hospital. But Planned Parenthood can't replace hospitals for medically sensitive abortions, says Sheila Reynertson, the advocacy coordinator at MergerWatch: "They're in the hospital for a reason."
In the end, hospital mergers have allowed the bishops to accomplish in practice what they haven't been able to achieve through the political process: making abortion and contraception harder to access. In Wisconsin, for example, where nearly 30 percent of hospitals are Catholic, the Legislature passed a law [ http://www.aclu.org/files/assets/81__opinion__order.pdf ] requiring doctors who perform abortions to have admitting privileges at a local hospital. Because Catholic hospitals haven't granted those privileges on religious grounds, many of the state's abortion providers will not be able to meet the new requirements.
These types of conflicts will only grow as the merger trend continues. "Pretty soon, people may find that the only hospitals in their area are Catholic. And, regardless of their own religious beliefs, they will be unable to get the care they need," says the NWLC's Garcia. "It is going to be a real wake-up call."
*
Related
Businesses Refusing to Cover Contraception Because…Citizens United?!
Corporations argue that the Supreme Court has exempted them from a key part of Obamacare.
http://www.motherjones.com/politics/2013/10/citizens-united-contraception-corporations-religious-freedom
Obamacare Will Save Lives: Trying to Kill It Is Cruel, Stupid, and Deadly
Why Ted Cruz and the Republicans' anti-Obamacare crusade means life or death for millions of Americans—like me.
http://www.motherjones.com/politics/2013/10/skin-cancer-obamacare-ted-cruz
Obama 1, Catholic Bishops 0
The US Conference of Catholic Bishops declared something of a holy war on the Obama administration this year. Catholics voted for Obama anyway.
http://www.motherjones.com/mojo/2012/11/obama-catholic-bishops-2012
*
Copyright ©2013 Mother Jones and the Foundation for National Progress
http://www.motherjones.com/politics/2013/10/catholic-hospitals-bishops-contraception-abortion-health-care [with comments]
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Rev. Tom Pivinksi, Retired Catholic Priest, Gets Married To Partner Of 20 Years Malcolm Navias
10/24/2013
Retired Catholic priest the Rev. Tom Pivinski [ http://www.trinitynj.com/1staff.html#tomP ] and his partner of over 20 years, Malcolm Navias [ https://www.facebook.com/photo.php?fbid=10150970090926236&set=pb.799161235.-2207520000.1382547391.&type=3&theater ], celebrated a beautiful interfaith wedding on Monday at their home in Asbury Park, New Jersey. They wed on the very first day that same-sex marriage was allowed to happen in New Jersey after Governor Chris Christie dropped his appeal [ http://usnews.nbcnews.com/_news/2013/10/21/21058974-chris-christie-drops-challenge-to-same-sex-marriage-in-new-jersey ] to overturn legalization.
Pivinski had already officiated three marriages [ http://www.advocate.com/politics/marriage-equality/2013/10/21/watch-retired-roman-catholic-priest-weds-gay-nj-couples-hell ] in the wee hours of Monday morning, as couples didn't want to hesitate a minute more than they had already been waiting to finally become husband and husband or wife and wife.
He told the Ashbury Park Press (APP) [ http://www.usatoday.com/story/news/nation/2013/10/21/gay-couples-wed-as-nj-recognizes-nuptials/3141655/ ], "I think it's wonderful. I am just very grateful that the state has recognized the equality of all people."
[...]
http://www.huffingtonpost.com/2013/10/23/tom-pivinski-gay-interfaith-marriage_n_4149508.html [with embedded video report, and comments]
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Christian Couple’s Tip For ‘Excellent’ Waiter: ‘Queers Do Not Share In The Wealth Of GOD’
October 25, 2013
[...]
“Thank you for your service, it was excellent. That being said, we cannot in good conscience tip you, for your homosexual lifestyle is an affront to GOD. Queers do not share in the wealth of GOD, and you will not share in ours. We hope you will see the tip your fag choices made you lose out on, and plan accordingly. It is never too late for GOD’S love, but none shall be spared for fags. May GOD have mercy on you.”
[...]
http://thenewcivilrightsmovement.com/christian-couples-tip-for-excellent-waiter-queers-do-not-share-in-the-wealth-of-god/discrimination/2013/10/25/77413 [with embedded video report, and comments]
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Justice Scalia Is More Conservative Than You Think, And Further To The Right Than He’s Ever Been
By Ian Millhiser
October 7, 2013 at 11:58 am
A lot of headlines can be found in Jennifer Senior’s remarkable interview with Justice Antonin Scalia [ http://nymag.com/news/features/antonin-scalia-2013-10/ (first item this post)] — the fact that Scalia almost exclusively reads conservative media, his belief in the Devil, his squeamishness about the fact that Hollywood depicts “ladies” saying the “F-word.” The interview paints Scalia as an anachronism even among anachronisms. He’s Archie Bunker in a less comfy chair.
Indeed, the justice provides so much candy for headline writers eager to drive up their website’s traffic, that it is easy to miss what is probably the most significant part of the interview — he repudiates his own moderation from a quarter a century ago.
Two years after joining the Supreme Court, Scalia delivered a lecture entitled “Originalism: The Lesser Evil” where he laid out much of his philosophy of how judges should decide cases. Words have meaning, Scalia correctly asserted, and the words of the Constitution must be read as they would have been understood at the time they were enacted. This way, Scalia assured, unelected judges will not overstep their proper role in a democracy. Even if the Constitution were intended to allow the law to evolve with society’s values, Scalia saw “no basis for believing that supervision of the evolution would have been committed to the courts.” Scalia’s textualism, and his belief that a text’s meaning is fixed in time, were both grounded in notions of judicial restraint. If judges can change the meaning of the Constitution, their power is truly limitless.
Scalia’s own relationship with this judicial philosophy, however, is quite fraught. As Yale’s Jack Balkin [ http://digitalcommons.law.yale.edu/fss_papers/26/ ] and others have demonstrated, for example, there’s little support in the Constitution’s text or its original history for the idea that the federal government cannot regulate nationwide economic markets. And there’s strong [ http://www.americanprogress.org/wp-content/uploads/issues/2012/03/pdf/aca_clement.pdf ] originalist evidence [ http://aca-litigation.wikispaces.com/file/view/State+legislators+amicus+%2804.08.11%29.pdf ] supporting the constitutionality of the Affordable Care Act. Yet Scalia rejected this evidence to join an angry dissent [ http://thinkprogress.org/justice/2012/06/29/508522/dissenting-opinion-analysis-justice-kennedy-abandons-all-pretensions-of-being-a-moderate/ ] labeling Obamacare unconstitutional.
Moreover, as Scalia conceded in his 1988 lecture, it is not always easy to determine what the framing generation though a particular constitutional provision meant. And even when it is possible to read the minds of the founding generation, such cross-generational telepathy often reveals that the framers didn’t know the answer either. James Madison and Alexander Hamilton were very much at odds over the scope of federal power under the Constitution [ http://www.americanprogress.org/issues/civil-liberties/report/2011/05/27/9610/the-fake-james-madison/ ], even though they both men were present while the document was being drafted. Justice Scalia’s pro-gun opinion in District of Columbia v. Heller relies heavily on constitutional history [ http://www.law.cornell.edu/supct/html/07-290.ZO.html ] to expand the scope of the Second Amendment, but so does Justice Stevens’ dissent [ http://www.law.cornell.edu/supct/html/07-290.ZD.html ]. It’s easy to read Scalia’s Heller opinion (and, to be fair, the Stevens dissent) and conclude that its author started with the result he wanted, and then trolled through uncertain historical sources in order to find the ones that supported his view.
So, while the younger Scalia presented reliance on the Constitution’s original history as a cure to judges imposing their views on the American people, that’s not how Scalia’s originalism has actually worked in practice. In practice, he’s been more than capable of selecting the history he likes best — and even ignoring constitutional history that goes against his preferred result.
Yet, while Scalia’s desire to shape the law often exceed his principles, his “Lesser Evil” lecture did offer one sop to liberals afraid that he would comb through early American history, uncover abhorrent practices and then stamp the Court’s blessing upon them. Labeling himself a “faint-hearted originalist,” Scalia confesses that “I cannot imagine myself, any more than any other federal judge, upholding a statute that imposes the punishment of flogging.” There are some injustices that the younger Scalia would intervene to prevent, even if those injustices existed at the framing.
This is the part of the “Lesser Evil” lecture that Scalia abandons in his interview with Ms. Senior. When asked “how fainthearted” he truly is, Scalia responds “I described myself as that a long time ago. I repudiate that.” And lest there be any doubt, that means he would permit flogging — “what I would say now is, yes, if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional.”
This repudiation is not entirely surprising — while Scalia has not upheld flogging, he did join a dissent siding with three prison guards who handcuffed a prisoner to a hitching post in the hot sun and denied him water [ http://thinkprogress.org/justice/2013/04/17/1878001/sentencing-commission-nominee-supported-handcuffing-prisoners-to-hitching-posts-under-hot-sun/ ]. Nevertheless, his explicit willingness to sanction injustices he would have halted as a younger man provides reveals a great deal about his approach to the law in his later years.
When the lawsuits challenging the Affordable Care Act had just been filed, many legal observers mocked them as unlikely to prevail because Scalia authored an opinion in 2005 that left little doubt that the law was constitutional [ http://www.americanprogress.org/issues/civil-liberties/news/2012/03/07/11260/not-even-close/ ]. If even Scalia’s opinions supported a progressive law, how could any judge — or at least, any judge acting in good faith — deem the law unconstitutional? Scalia’s repudiation of his 1988 statement may reveal why so many attorneys were wrong to look to his past opinions and expect them to guide him in the future. In the winter of his years on the Court, Scalia looks back upon his past moderation and regrets it. It follows that his own more moderate opinions are no longer reliable predictors of Scalia’s current views.
This lurch to the right should scare liberals even more than Scalia already does. And it is not yet clear if anything remains of Scalia’s prior claims to judicial restraint. Indeed, during oral arguments on the Voting Rights Act case, Scalia not only labeled the landmark law a “perpetuation of racial entitlement,” he claimed for himself a sweeping power to correct what he viewed as a failure of the democratic process. The Scalia who once spoke eloquently about the limited role of a judge in a democracy is dead, replaced by a more activist Scalia who is far more willing to question the will of the people than his younger self.
© 2013 Center for American Progress Action Fund
http://thinkprogress.org/justice/2013/10/07/2740661/scalia-worse-than-you-think/ [with comments]
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Santorum: Satan Controls The Film Industry
Submitted by Brian Tashman on Thursday, 10/24/2013 4:15 pm
Rick Santorum is asking you to do your part to free movie theatres from the Devil’s clutches by purchasing tickets to his upcoming movie, The Christmas Candle. He appeared on the Trinity Broadcasting Network last week to plug the new movie of his film company EchoLight Studios, which apparently is in a state of internal strife [ http://blogs.dallasobserver.com/unfairpark/2013/10/theres_a_civil_war_at_rick_san.php ] after his arrival as CEO.
While speaking on a network where televangelists on a daily basis tell viewers that God will reward them financially if they send in contributions, the former senator and presidential candidate spent most of the time criticizing movies for being too materialistic.
Santorum, who has previously said that Satan has control over mainline Protestantism and universities [ http://www.rightwingwatch.org/content/santorum-satan-systematically-destroying-america ], thanked viewers in advance for seeing the movie.
“This is a tough business, this is something that we’re stepping out,” Santorum said, “and the Devil for a long, long time has had this, these screens, for his playground and he isn’t going to give it up easily.”
Watch [ http://www.youtube.com/watch?v=R63yutg7cjo (next below, as embedded)]:
*
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Santorum: GOP Support For Gay Marriage Will Be 'The Destruction Of Our Republic'
10/17/13 @ 11:44
Santorum: Contraception Mandate Is A 'Descendant Of The French Revolution'
10/11/13 @ 5:36
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© 2013 People For the American Way
http://www.rightwingwatch.org/content/santorum-satan-controls-film-industry
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Rick Santorum Becomes CEO of Faith-Based Film Studio
The former GOP presidential hopeful has raised millions of dollars to make faith-based, uplifting movies in the mode of "Soul Surfer," except that they won't "water down the truth."
6/24/2013
[...]
Santorum said Monday he has become CEO of EchoLight Studios, and the Texas-based firm is weeks away from closing a $20 million film fund that it will use to finance, produce and distribute faith-based and family-friendly movies.
[...]
The former senator from Pennsylvania says most of the investors in EchoLight and its film slate – which will consist of up to four movies annually – are wealthy Texans who are novices in film but are supportive of the message-movies EchoLight intends to make.
“Here’s what I think of Hollywood,” Santorum told The Hollywood Reporter. “We’re looking for talented people who want to make quality films, even though we won’t be spending tens of millions of dollars on each of them. We want good writers, actors and producers who want to make honest, uplifting content.”
EchoLight’s first film, due this year, is The Redemption of Henry Myers, a western about a left-for-dead bank robber who is nursed back to health by a widow and her young children (a trailer [ http://www.youtube.com/watch?v=igTO-GYHc-M ] is [next] below).
[...]
http://www.hollywoodreporter.com/news/rick-santorum-becomes-ceo-faith-574199 [with comments]
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Rick Santorum Claims Recently Fired Executives Tried to 'Sabotage' the Film Studio He Runs
EchoLight Studios, where the former GOP presidential candidate is CEO, is suing company "co-founders" Bobby Downes and Christopher Morrow.
10/2/2013
Rick Santorum has had a rocky first three months on the job as CEO of EchoLight Studios, a faith-based movie studio the former senator was tapped to run in June.
Insiders tell The Hollywood Reporter that Santorum butted heads with Bobby Downes and Christopher Morrow, who have identified themselves as co-founders of the studio, so severely that he fired them both about a week ago. Then on Tuesday, EchoLight sued the two former executives claiming they were orchestrating "a campaign of sabotage."
The lawsuit even claims that Morrow threatened to "malign" Santorum in "an upcoming Hollywood Reporter article," according to Courthouse News Service [ http://www.courthousenews.com/2013/10/01/61640.htm ]. The Hollywood Reporter is unaware of the alleged effort from Morrow.
"Bobby Downes and Christopher Morrow have been terminated from EchoLight due to both cause and nonperformance," a spokeswoman for the studio confirmed on Tuesday.
Morrow was chief global strategist before his termination at EchoLight and Downes was president, and they both reported to Santorum, a former Republican presidential candidate who was helping to raise $20 million in investment capital for EchoLight when the studio hired him as CEO.
Insiders said the fundraising process was touch and go for a while, with some prospective investors pulling out and others replacing them, but EchoLight said Tuesday it had gathered the funds it set out to raise, though the spokeswoman declined to specify an exact amount of money.
[...]
http://www.hollywoodreporter.com/news/rick-santorum-claims-fired-executives-640252 [with comments]
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Santorum: Satan is Systematically Destroying America
Submitted by Kyle Mantyla on Thursday, 2/16/2012 5:12 pm
Back in 2008, Rick Santorum traveled to Ave Maria University in Florida [ http://old.avemaria.edu/news/156.html ] to deliver an address to students attending the Catholic university founded by Domino's Pizza founder Tom Monaghan [ http://www.washingtonmonthly.com/college_guide/feature/pie_in_the_sky.php?page=all ] which he moved from Michigan as part of his effort to build [ http://www.naplesnews.com/news/ave-maria/town-without-vote/ ] his own personal theocracy in Naples.
Santorum told the students [ http://www.rightwingwatch.org/content/santorum-hails-ave-maria%E2%80%99s-religious-warriors ] at Ave Maria how lucky they were to be living in a time when God's Army is more needed than ever because all of the major institutions in society were under attack by Satan.
The audio of Santorum's remarks is still posted [ http://www.avemaria.edu/NewsEvents/Podcasts.aspx ] on the Ave Maria website and the bulk of his speech was dedicated to explaining how God had used him, his political career, and even the death of his son Gabriel [ http://www.amazon.com/Letters-Gabriel-Karen-Garver-Santorum/dp/1568145284 ] in the fight to outlaw abortion in America.
But Santorum began his remarks by explaining to the students in attendance how every institution in America has been destroyed by Satan; from academia to politics with even the church having fallen under His sway - not the Catholic church, of course, but "mainline Protestantism" which is in such "shambles" that it is not even Christian any longer [ http://www.youtube.com/watch?v=n4jopm7hYFk (next below, as embedded)]:
This is not a political war at all. This is not a cultural war. This is a spiritual war. And the Father of Lies has his sights on what you would think the Father of Lies would have his sights on: a good, decent, powerful, influential country - the United States of America. If you were Satan, who would you attack in this day and age. There is no one else to go after other than the United States and that has been the case now for almost two hundred years, once America's preeminence was sown by our great Founding Fathers.
He didn't have much success in the early days. Our foundation was very strong, in fact, is very strong. But over time, that great, acidic quality of time corrodes even the strongest foundations. And Satan has done so by attacking the great institutions of America, using those great vices of pride, vanity, and sensuality as the root to attack all of the strong plants that has so deeply rooted in the American tradition.
He was successful. He attacks all of us and he attacks all of our institutions. The place where he was, in my mind, the most successful and first successful was in academia. He understood pride of smart people. He attacked them at their weakest, that they were, in fact, smarter than everybody else and could come up with something new and different. Pursue new truths, deny the existence of truth, play with it because they're smart. And so academia, a long time ago, fell.
And you say "what could be the impact of academia falling?" Well, I would have the argument that the other structures that I'm going to talk about here had root of their destruction because of academia. Because what academia does is educate the elites in our society, educates the leaders in our society, particularly at the college level. And they were the first to fall.
And so what we saw this domino effect, once the colleges fell and those who were being education in our institutions, the next was the church. Now you’d say, ‘wait, the Catholic Church’? No. We all know that this country was founded on a Judeo-Christian ethic but the Judeo-Christian ethic was a Protestant Judeo-Christian ethic, sure the Catholics had some influence, but this was a Protestant country and the Protestant ethic, mainstream, mainline Protestantism, and of course we look at the shape of mainline Protestantism in this country and it is in shambles, it is gone from the world of Christianity as I see it. So they attacked mainline Protestantism, they attacked the Church, and what better way to go after smart people who also believe they’re pious to use both vanity and pride to also go after the Church.
After that, you start destroying the Church and you start destroying academia, the culture is where their next success was and I need not even go into the state of the popular culture today. Whether its sensuality of vanity of the famous in America, they are peacocks on display and they have taken their poor behavior and made it fashionable. The corruption of culture, the corruption of manners, the corruption of decency is now on display whether it’s the NBA or whether it’s a rock concert or whether it’s on a movie set.
The fourth, and this was harder, now I know you’re going to challenge me on this one, but politics and government was the next to fall. You say, ‘you would think they would be the first to fall, as fallible as we are in politics,’ but people in political life get elected by ordinary folks from lots of places all over the country where the foundations of this country are still strong. So while we may certainly have had examples, the body politic held up fairly well up until the last couple of decades, but it is falling too.
© 2012 People For the American Way
http://www.rightwingwatch.org/content/santorum-satan-systematically-destroying-america
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Santorum Says Satan Controls Hollywood
Lisa Derrick
Friday October 25, 2013 11:20 am
Rick Santorum spat a frothy mouthful [ http://www.youtube.com/watch?v=R63yutg7cjo (above, as embedded)] on the Trinity Broadcasting Network, plugging his first foray into film production, The Christmas Candle [ http://www.thechristmascandlemovie.com/ ], due out this holiday season. The movie, from EchoLight Studio, is a period piece set in a Thomas Kinkade-esque village and tackles modernity vs (Christian) tradition as electricity and progressive thinking threaten the town’s visit from a Christmas angel. Now the CEO of EchoLight, Santorum said, seeming a little uncomfortable [ http://www.rightwingwatch.org/content/santorum-satan-controls-film-industry (the first of these Santorum items above; this item also here cuz I like it)]:
This is a tough business, this is something that we’re stepping out, and the Devil for a long, long time has had this, these screens, for his playground and he isn’t going to give it up easily.
Shifty eyes much?
I’m not going to go into Santorum’s (il)logic about Satan controlling Hollywood which at some point will end up in a grand conspiracy, but ye gods and little fishes, if Satan controls the film business, why did the self-proclaimed White Witch of Los Angeles [ http://godismyboyfriend.com/ ] give a lecture [ http://www.youtube.com/watch?v=LMwcYPK4oWI (next below)]
And speaking of inconceivable, Santorum’s position on Satan in the film biz puts him at odds with fellow conservative Sen Ted Cruz who admitted [ http://www.desmoinesregister.com/article/20131024/NEWS09/310240112/Ted-Cruz-Q-senator-s-private-side ] that in addition to playing video games (also a tool of Satan [ http://proofsofaconspiracy.wordpress.com/2011/06/26/satanicilluminatioccult-imagery-extends-to-video-games/ ]):
I’m a huge movie buff. Love watching movies. So we’ll often go and watch a movie.
Cruz’s favorite movie? The Princess Bride which has a wizard bringing Westley back to life. Blasphemy!! Clearly Ted Cruz is thus a tool of Satan, which makes his opposition to the current administration a Satanic plot. But wait, conservatives think Obama is Satan, or at least the Anti-Christ…
Screw it, I’m gonna go watch an MK-Ultra produced, Illuminati/Satan mind control movie. Like Chitty Chitty Bang Bang [ http://mindcontrol101.blogspot.com/2010/02/pops-illuminati-top-10.html ] or Fantasia.
Copyright 2013 Firedoglake
http://lafiga.firedoglake.com/2013/10/25/santorum-says-satan-controls-hollywood/ [with comments]
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Does Justice Scalia Really Believe He's on the 'Losing Side of Everything'?
Reuters
By comparing himself with a New Deal obstructionist, the conservative judge raises questions about the Court's future—and his own legacy.
Andrew Cohen
Oct 9 2013, 9:32 AM ET
One of the many underreported facets of Jennifer Senior's fantastic New York Magazine interview [ http://nymag.com/news/features/antonin-scalia-2013-10/ (first item this post)] with United States Supreme Court Justice Antonin Scalia was his reference to Justice George Sutherland [ http://www.oyez.org/justices/george_sutherland ], the late, great conservative jurist best known for obstructing [ http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1946929 ] the New Deal. When Senior asked Justice Scalia near the end of their long, colorful riff, "Which decisions in your tenure do you think will be heroic?" he responded:
Oh, my goodness. I have no idea. You know, for all I know, 50 years from now I may be the Justice Sutherland of the late-twentieth and early-21st century, who's regarded as: "He was on the losing side of everything, an old fogey, the old view." And I don't care.
Sutherland, born in England, was a Mormon and a Republican who served in the House of Representatives before he was tapped for the Court by President Warren Harding. Along with fellow conservatives James Clark McReynolds [ http://www.pbs.org/wnet/supremecourt/capitalism/robes_mcreynolds.html ], Willis Van Devanter [ http://www.supremecourthistory.org/history-of-the-court/associate-justices/willis-van-devanter-1911-1937/ ], and Pierce Butler [ http://www.supremecourthistory.org/history-of-the-court/associate-justices/pierce-butler-1923-1939/ ], Sutherland struck down one major New Deal piece of legislation after another. In 1935, the Farm Bankruptcy Act [ http://supreme.justia.com/cases/federal/us/295/555/ ] fell. So did the Coal Conservation Act [ http://www.law.cornell.edu/supct/html/historics/USSC_CR_0298_0238_ZS.html ]. And the National Industrial Recovery Act [ http://www.law.cornell.edu/supct/html/historics/USSC_CR_0295_0495_ZS.html ]. In 1936, the Agricultural Adjustment Act [ http://www.law.cornell.edu/supct/html/historics/USSC_CR_0297_0001_ZS.html ] fell. It was these cases that prompted President Roosevelt to push his ill-conceived court-packing plan [ http://books.google.com/books/about/The_168_days.html?id=J_YdAAAAIAAJ ].
A conservative justice who joins with his fellow travelers in a yeoman effort to stop a Democratic president from implementing vital new reforms? It's no wonder that Justice Scalia cited Sutherland, right? Right. Except that Justice Sutherland in practice was far less conservative than is Justice Scalia. And Justice Scalia's perception/prediction that he may be "on the losing side of everything" is belied (so far anyway) by the fact that he and his fellow Republicans on the Court have presided over a monumental restoration of conservative jurisprudence.
Let's take Justice Sutherland first. Like millions of other conservatives, he hated what the New Deal stood for and did what he could to stop it. But he was not a hard-edged warrior. For example, it was Justice Sutherland, in 1932, who wrote the opinion in Powell v. Alabama [ http://www.law.cornell.edu/supct/html/historics/USSC_CR_0287_0045_ZS.html ], a decision that stills stands for the proposition that a criminal defendant cannot get a fair trial without assistance of counsel. It was Powell the Court cited in 1963 in Gideon v. Wainwright [ http://www.law.cornell.edu/supct/html/historics/USSC_CR_0372_0335_ZS.html ], the right to counsel case that has helped millions of Americans in the past 50 years get something resembling a fair shake in court.
Moreover, there is strong evidence that Justice Sutherland as an elected official before he reached the Court was remarkably progressive. From "The Secret Lives of the Four Horsemen [ http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1946929 ]," a 2011 law review article by Barry Cushman:
We discover that Sutherland's legislative career saw him support the eight-hour day, the Employers' Liability Act, the Pure Food and Drugs Act, the Hepburn Rate Bill, the Children's Bureau, the Seaman's Act of 1915, Postal Savings Banks, free coinage of silver, and the1896 presidential candidacy of the populist William Jennings Bryan. We even find Sutherland in the vanguard of the struggle for women's suffrage and a system of workmen's compensation for the employees of interstate carriers.
Now, Justice Scalia never held elected office so we will never know whether he would have supported progressive causes like these as a legislator. My guess, which is as good as your guess, is that he would not. We can, each of us, make this guess because we have a quarter of a century of Court opinions to sift through, as well as Justice Scalia's record as a lower appellate judge and executive branch official, all of which tell us that the jurisprudence of Justice Scalia has rarely favored women, or workers, or laws like the Affordable Care Act that seek to help the poor.
Indeed, Justice Scalia has been largely responsible for one conservative victory after another since joining the Court in 1986. He has helped restrict voting rights. He has restricted the rights of workers and employees and unions. He has limited the ability of plaintiffs to seek redress in court. He has helped make it more difficult for criminal defendants to seek and gain justice. He has opened the floodgates for money to pour into political campaigns. He has endorsed grand executive branch power.
On and on the litany of conservative achievement goes--with no end in sight. So does the justice truly believe that "his side" is losing or that, within the next 50 years, it will lose the constitutional battles it now is winning? Does he truly believe that the advance of gay rights--arguably the most significant setback he has seen since coming to the Court--trumps all the other areas of the law in which conservatism is ascendant? Was he merely being self-deprecating in citing Sutherland? Does he feel the need for future vindication even though the present sure looks to be treating him right?
Jeff Shesol, the author and historian who wrote Supreme Power[ http://www.npr.org/2010/03/31/125321024/fdr-vs-the-court-an-epic-power-struggle-relived ], the definitive modern book about Roosevelt and the Court, told me Monday that Justice McReynolds may have gotten all the heat 75 years ago but that it was Justice Sutherland who was the "intellectual architect" of the conservative fight against the New Deal. Maybe that's what Justice Scalia has in mind. Maybe he wants history to remember him as the "intellectual architect" of the modern fight against progressivism. That history, like all history, will be written by the winners. And I'm genuinely surprised that Justice Scalia is bracing himself for the possibility that his side in the fight won't be writing it.
Copyright © 2013 by The Atlantic Monthly Group
http://www.theatlantic.com/national/archive/2013/10/does-justice-scalia-really-believe-hes-on-the-losing-side-of-everything/280426/ [with comments]
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Herman Cain Has Found The Real Groper, And It Is ‘The Devil’
by Rebecca Schoenkopf
12:35 pm October 23, 2013
Herman Cain has spent the past two years trying to clear his name of wrongful accusations that he groped that lady, and the other lady, and that third chick, and we think two other ones as well it is hard to keep straight! That is, he has been working to clear his name for the past two years except for the part where he has done anything to try to clear his name. This is because when one is accused [ http://wonkette.com/477439/lady-who-sexed-herman-cain-for-13-years-types-about-that ] of sexxxxytime shenanigans and quid pro ew behaviors, it is important to stand and fight them in a timely manner, unless you don’t really have anything to back you up.
But Herman Cain does! He has “evidence [ http://www.realclearreligion.org/articles/2013/10/23/the_devil_and_herman_cain.htm ]”! And that “evidence” leads him to state unequivocally that he has found the real groper, and that groper is The Devil, squeezing and frottaging all up in those women’s brains until they all levitated from their beds and fingered Goody Cain (gross) for a witch! A sexxxxy witch! Let’s sexplore!
Cain said if he challenged the allegations at the time, “it would have been a huge distraction.” A presidential campaign “is like drinking from a fire hydrant” and so is a bad time to give a considered response scandalous allegations of that nature.
Yes, you definitely want to wait until a year after the campaign is over in which you are running for president to clear your name, because clearing your name in the middle of the campaign in which you are running for president would absolutely be a “distraction.” At least, it would be a “distraction” from the totally untrue allegations anyway.
The first charges that were reported, by a still-anonymous woman, “went to the [Equal Employment Opportunity Commission] and were dismissed,” Cain said.
Hmmm, we are not seeing anything on the Internet about that, not even at, like, ConservativeBlackPeopleOrAtLeastOneConservativeBlackGuyButWhatever.com. But we do know his job ponied up $80 thousand [ http://www.slate.com/articles/news_and_politics/explainer/2011/11/herman_cain_settlement_what_s_the_going_rate_for_sexual_harassment_claims_.html ] to two women who did not seem so much to enjoy working for him, because of the groping. So there is that?
Celebrity attorney Gloria Allred held a press conference for her client, Sharon Bialek, who accused Cain of groping her over a decade ago. During that presser, Allred waved around alleged affidavits that she said corroborated her client’s story. Cain said that no one has even seen Allred’s affidavits.
That seemed a stretch — an attorney waiving affidavits around at a press conference and reporters not insisting on verifying those documents. But after some digging, nothing. A search for it on the Smoking Gun website reveals a big goose egg, for instance.
Oh, wait, so the media is the real sexual harasser, for not asking to see Bialek’s affidavits about how Herman Cain grabbed her junk and asked her “you want a job, right?” Well, that is just Science Fact. We are looking at you, Richard Cohen [ http://wonkette.com/427960/richard-cohen-loves-sexual-harassment ]. And Bill O’Reilly [ http://www.thesmokinggun.com/documents/funny/oreilly-hit-sex-harass-suit ]. And fuck, the media really is the real groper!
As for the third woman, Ginger White, who accused Cain of an affair, Cain said she was in court for libel at the same time he ended his campaign. “She ultimately was found guilty and was assessed a judgment,” he told me with a good helping of contempt for the media for under-reporting it.
Ginger White did not show up to court, and a default judgment was ordered. You know what our mama always says: DO NOT fail to appear [ http://wonkette.com/514587/raise-less-corn-more-hell-2 ]!
Then he speculated as to who may have orchestrated the allegations: the Devil.
“It made me realize that there was a force bigger than right,” Cain said.
Well, we are convinced. Case closed, everybody! We look forward to Cain’s sexual harassment lawsuit, Herman Cain v. Beelzebub. Those depositions are going to be fuckin’ amazing.
©2013 Wonkette Media LLC (emphasis in original)
http://wonkette.com/532363/herman-cain-has-found-the-real-groper-and-it-is-the-devil [with comments]
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Herman Cain Blames The Devil For His Sexual Harassment Charges!
Posted by: Barbara Friedland
October 25, 2013
One time Godfather’s Pizza CEO and GOP candidate for President contends that the Devil was behind the sexual harassment charges that imploded his campaign. He also believes that those stories were the only impediment between him and the White House.
Where to begin?
Cain enjoyed being front-runner for a few weeks, as did every other crazy candidate vying for the Republican nomination. The GOP had to make it very clear to Mitt Romney that the majority neither liked nor trusted him so they made him work very very hard.
Also, if Cain believed he had any chance to be the Republican candidate then he clearly has not watched any interview he ever gave.
He basically had no idea about anything or just parroted 999.
(Maybe he was summoning Satan in code.)
But back the sexual harassment stories. Cain castigated the media for not doing their due diligence.
The egomaniacal belief that the devil would arise to prevent Cain from being elected President is beyond frightening.
He was a guy with a book, did some motivational speaking and wanted to juice up sales.
If he seriously wanted to be President, Cain would have actually studied the issues. Or a map.
Folks can laugh that the clownish Cain has made his sordid groping a matter of good versus the devil.
But he is right about one thing. The media did not vet him properly.
Or they would have written about his role as the head of the National Restaurant Association and his tireless efforts to keep the sub minimum wage in place for restaurant workers.
Now that’s a sin.
According to RealClearReligion [ http://www.realclearreligion.org/articles/2013/10/23/the_devil_and_herman_cain.html ]:
“It made me realize that there was a force bigger than right,” Cain said.
But that doesn’t mean Cain has given up. Nowadays, Cain fights against the Evil One from the pulpit. Cain has been a member of the same Baptist church in Atlanta — “a church in the hood” — since he was 10, where he now serves as an associate pastor.
Cain preaches that the Devil is “determined to destroy our culture” and that “the family is at the center of our culture and the center of the family is its religious beliefs.”
A recent sermon of his is entitled: “Don’t Give Up, Get Up!” He told the congregation that there are three ways to battle “give-up-itis. You get down on your knees and pray, you write down your blessings, and you turn down the noise in your life.” The noise in Cain’s life is considerably softer than it was two years ago, but he hasn’t called it in just yet.
Americans Against the Tea Party © Copyright 2013
http://aattp.org/herman-cain-blames-devil-sexual-harassment-charges/ [with comments]
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A Tree Grows in Canada
By LINDA GREENHOUSE
Published: October 16, 2013
This Friday is Persons Day in Canada, a special day on the country’s calendar that commemorates, of all things, a judicial decision. It was on Oct. 18, 1929, that the Privy Council, a court in London that served then as the highest appeals court for Canada, declared women to come within the definition of “persons” in Canada’s basic law, thus qualifying them for appointment to the national Senate. It was, Beverley McLachlin, the chief justice of Canada, said in a speech earlier this year, “the beginning of a rights revolution that would transform Canadian society.”
I’ve wanted to write about Persons Day and the intriguing Persons Case that it celebrates ever since I first heard about it years ago at a conference of Canadian lawyers. Every time Persons Day came around, however, something more pressing, or at least seemingly more directly relevant to the American legal scene, seemed to intervene. But this time, I’ll argue here, the Persons Case couldn’t be more germane to the current constitutional conversation on this side of the border. In fact, for reasons I’ll explain, if the Persons Case didn’t exist, those of us who believe in progressive constitutional interpretation might have to invent it.
First, a bit of history. The British North America Act, a law from 1867 that served as Canada’s constitution, provided for the appointment of “qualified persons” to the Senate. In the 1920s, with a growing feminist spirit abroad in the land, women had the temerity to assume that “qualified persons” might include them. When Emily Murphy, a leading feminist who was a judge in Alberta, sought an appointment, the prime minister turned her down on the ground that women were not “persons” within the meaning of the law.
Judge Murphy and four other Alberta women, who were to become known as the Famous Five, formally petitioned the federal government, which then put a question to the Supreme Court of Canada: “Does the word ‘Persons’ in Section 24 of the British North America Act include female persons?”
The Supreme Court said no, on grounds that would warm the heart of some current members of the United States Supreme Court. Whether it would be desirable for women to be eligible for senatorial appointment was beside the point, Chief Justice Frank Anglin wrote in his opinion. What mattered was what the drafters of the 1867 statute intended, and the words they wrote had to “bear today the same construction which the courts would, if then required to pass upon them, have given to them when they were first enacted.”
The five women then appealed to the Judicial Committee of the Privy Council in London, which as a vestige of empire served until 1949 as Canada’s court of last result. There the outcome was different. A newly appointed Lord Chancellor, John Sankey, rejected the originalist approach. It was wrong, he wrote in the 1929 decision, “to apply rigidly to Canada of today the decisions and the reasons therefor which commended themselves, probably rightly, to those who had to apply the law in different circumstances, in different centuries, to countries in different stages of development.” Driving the point home, Lord Sankey went on to say: “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.” Women, the court concluded, were indeed persons. Soon enough, they were senators as well.
The “living tree” metaphor languished, underappreciated, for years until 1982, when Canada adopted its modern constitution, the Charter of Rights and Freedoms, and Canadian judges needed an interpretive methodology. The living tree was there, waiting to be rediscovered and tended. Along the way, the Famous Five women came to be celebrated. Their larger-than-life statues adorn the grounds of Parliament in Ottawa, and for a few years early in the new century, their faces appeared on Canada’s $50 bill. Annual prizes are awarded in their names. As for the living tree, it’s simply taken for granted, part of Canada’s constitutional DNA. Although the original understanding of the 31-year-old Charter’s framers wouldn’t be hard to reconstruct, no one bothers. It’s beside the point.
I thought of the Persons Case the other day as I read Justice Antonin Scalia’s head-spinning interview [ http://nymag.com/news/features/antonin-scalia-2013-10/ (first item this post)] in New York magazine. No doubt many readers of this engrossing document, which printed out at 15 pages, couldn’t get beyond Justice Scalia’s comments about the wily ways of the Devil. I was equally struck by this colloquy between the justice and his interviewer, Jennifer Senior:
Question: You’ve described yourself as a fainthearted originalist. But really, how fainthearted?
Answer: I described myself as that a long time ago. I repudiate that.
Question: So you’re a stouthearted one.
Answer: I try to be. I try to be an honest originalist! I will take the bitter with the sweet! What I used “fainthearted” in reference to was –
Question: Flogging, right?
Answer: Flogging. And what I would say now is, yes, if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional.
For years, Justice Scalia liked to amuse himself and startle listeners by proclaiming that his Constitution wasn’t living, but “dead.” I heard this myself on several occasions. Recently, he’s softened his tone a bit [ http://frontburner.dmagazine.com/2013/01/31/bryan-garner-is-not-happy-with-the-dallas-morning-news/ ] to explain that by “dead” he doesn’t mean expired but rather “enduring” as opposed to “morphing” or “changing.” No matter. If Justice Scalia’s Constitution was a tree, it would be part of a petrified forest.
Justice Scalia’s mantra is so tired by now that only Justice Anthony M. Kennedy seems willing to offer much in the way of an off-the-bench response. “You have to recognize that if the framers knew all the specifics of a just society, they would have written them down,” Justice Kennedy told Jess Bravin of The Wall Street Journal in an appearance earlier this month at the University of California’s Washington Center. The Constitution’s framers, the justice said, “used words that appeal over time to our sense of justice and our sense of freedom.”
On the bench, of course, the two clashed recently over the meaning of equality in the context of the Defense of Marriage Act. Justice Kennedy wrote the court’s majority opinion in United States v. Windsor [ http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf ], declaring DOMA unconstitutional, while Justice Scalia wrote a stinging dissent. But a day earlier, the two were on the same side, voting with the 5-to-4 majority in Shelby County v. Holder [ http://cms.em.nytimes.com/content/edit/article/ ] to gut the Voting Rights Act of 1965.
The two decisions make a fascinating pair when viewed through the lens of the originalism debate. The point is that neither was originalist. As for the DOMA decision, “it does not take a constitutional historian to appreciate that the specific original meaning of due process/liberty and equal protection in both 1791 and 1868 do not support constitutional protection against sexual orientation discrimination in marriage laws, state or federal,” Professor Dawn Johnsen of Indiana University’s Maurer School of Law wrote in an essay [ http://www.acslaw.org/sites/default/files/Johnsen_-_Demise_of_Originalism.pdf ] published this month by the American Constitution Society [ http://www.acslaw.org/about ; http://www.acslaw.org/ ] (of which she and I are both national board members). The dates refer to the adoption of the Fifth and 14th Amendments.
And the Voting Rights Act decision, as Professor Johnsen goes on to point out, was likewise the opposite of originalist, rejecting the court’s longstanding deference to the role of Congress in enforcing the 15th Amendment’s guarantee of the right to vote. The conjunction of these two decisions was enough to make Professor Johnsen wonder (happily, I should note) whether we might be seeing, as she suggests in her essay’s title, “The Demise of Originalism.”
Will Justice Scalia’s personal petrified forest ever come to life? Clearly, for him, the answer is no. But on Persons Day 2013, it’s worth celebrating the fact that the constitutional tree is still alive on this side of the border, at least for now.
© 2013 The New York Times Company
http://www.nytimes.com/2013/10/17/opinion/greenhouse-a-tree-grows-in-canada.html [ http://www.nytimes.com/2013/10/17/opinion/greenhouse-a-tree-grows-in-canada.html?pagewanted=all ] [with comments]
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(Photo: Platon)
On the eve of a new Supreme Court session, the firebrand justice discusses gay rights and media echo chambers, Seinfeld and the Devil, and how much he cares about his intellectual legacy (“I don’t”).
By Jennifer Senior
Published Oct 6, 2013
On September 26—a day that just happened to be the 27th anniversary of his swearing-in as associate justice—Antonin Scalia entered the Supreme Court’s enormous East Conference Room so casually that one might easily have missed him. He is smaller than his king-size persona suggests, and his manner more puckish than formal. Washingtonians may know Scalia as charming and disarming, but most outsiders tend to regard him as either a demigod on stilts or a menace to democracy, depending on which side of the aisle they sit. A singularity on the Court and an icon on the right, Scalia is perhaps more responsible than any American alive for the mainstreaming of conservative ideas about -jurisprudence—in particular the principles of originalism ¬(interpreting the Constitution as the framers intended it rather than as an evolving document) and textualism (that statutes must be ¬interpreted based on their words alone). And he has got to be the only justice to ever use the phrase “argle-bargle” in a dissent.
*
You came to Washington as a lawyer during the Nixon administration, just before Watergate. What on Earth was that like?
It was a sad time. It was very depressing. Every day, the Washington Post would come out with something new—it trickled out bit by bit. Originally, you thought, It couldn’t be, but it obviously was. As a young man, you’re dazzled by the power of the White House and all that. But power tends to corrupt.
Then you served in the Ford administration. That must have been an awfully lonely time to be a young conservative.
It was a terrible time, not for the Republican Party, but for the presidency. It was such a wounded and enfeebled presidency, and Congress was just eating us alive. I mean, we had a president who had never been elected to anything except … what? A district in Michigan? Everything was in chaos.
It was a time when people were talking about “the imperial presidency.” I knew very well that the 900-pound gorilla in Washington is not the presidency. It’s Congress. If Congress can get its act together, it can roll over the president. That’s what the framers thought. They said you have to enlist your jealousy against the legislature in a ¬democracy—that will be the source of tyranny.
But weren’t you just saying that you learned from Watergate that presidents aren’t incorruptible?
What, and Congress is? I mean, they’re all human beings. Power tends to corrupt. But the power in Washington resides in Congress, if it wants to use it. It can do anything—it can stop the Vietnam War, it can make its will felt, if it can ever get its act together to do anything.
Had you already arrived at originalism as a philosophy?
I don’t know when I came to that view. I’ve always had it, as far as I know. Words have meaning. And their meaning doesn’t change. I mean, the notion that the Constitution should simply, by decree of the Court, mean something that it didn’t mean when the people voted for it—frankly, you should ask the other side the question! How did they ever get there?
But as law students, they were taught that the Constitution evolved, right? You got that same message consistently in class, yet you had other ideas.
I am something of a contrarian, I suppose. I feel less comfortable when everybody agrees with me. I say, “I better reexamine my position!” I probably believe that the worst opinions in my court have been unanimous. Because there’s nobody on the other side pointing out all the flaws.
Really? So if you had the chance to have eight other justices just like you, would you not want them to be your colleagues?
No. Just six.
That was a serious question!
What I do wish is that we were in agreement on the basic question of what we think we’re doing when we interpret the Constitution. I mean, that’s sort of rudimentary. It’s sort of an embarrassment, really, that we’re not. But some people think our job is to keep it up to date, give new meaning to whatever phrases it has. And others think it’s to give it the meaning the people ratified when they adopted it. Those are quite different views.
You’ve described yourself as a fainthearted originalist. But really, how fainthearted?
I described myself as that a long time ago. I repudiate that.
So you’re a stouthearted one.
I try to be. I try to be an honest originalist! I will take the bitter with the sweet! What I used “fainthearted” in reference to was—
Flogging, right?
Flogging. And what I would say now is, yes, if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional. I gave a talk once where I said they ought to pass out to all federal judges a stamp, and the stamp says—Whack! [Pounds his fist.]—STUPID BUT ¬CONSTITUTIONAL. Whack! [Pounds again.] STUPID BUT ¬CONSTITUTIONAL! Whack! ¬STUPID BUT ¬CONSTITUTIONAL … [Laughs.] And then somebody sent me one.
(Photo: Platon)
So are there things in the Constitution you find stupid? I remember Judge Bork saying that there were few people who understood what the Ninth Amendment meant, as if it was ¬partially covered by an inkblot.
You know, in the early years, the Bill of Rights referred to the first eight amendments. They didn’t even count the ninth. The Court didn’t use it for 200 years. If I’d been required to identify the Ninth Amendment when I was in law school or in the early years of my practice, and if my life depended on it, I couldn’t tell you what the Ninth Amendment was.
Do you think there are flaws in the Constitution?
The one provision that I would amend is the amendment provision. And that was not originally a flaw. But the country has changed so much. With the divergence in size between California and Rhode Island—I figured it out once, I think if you picked the smallest number necessary for a majority in the least ¬populous states, something like less than 2 percent of the population can prevent a constitutional amendment. But other than that, some things have not worked out the way the framers anticipated. But that’s been the fault of the courts, not the fault of the draftsmen.
What about sex discrimination? Do you think the Fourteenth Amendment covers it?
Of course it covers it! No, you can’t treat women differently, give them higher criminal sentences. Of course not.
A couple of years ago, I think you told California Lawyer something different.
What I was referring to is: The issue is not whether it prohibits discrimination on the basis of sex. Of course it does. The issue is, “What is discrimination?”
If there’s a reasonable basis for not ¬letting women do something—like going into combat or whatnot ...
Let’s put it this way: Do you think the same level of scrutiny that applies to race should apply to sex?
I am not a fan of different levels of scrutiny. Strict scrutiny, intermediate scrutiny, blah blah blah blah. That’s just a thumb on the scales.
But there are some intelligent reasons to treat women differently. I don’t think anybody would deny that. And there really is no, virtually no, intelligent reason to treat people differently on the basis of their skin.
What’s your media diet? Where do you get your news?
Well, we get newspapers in the morning.
“We” meaning the justices?
No! Maureen and I.
Oh, you and your wife …
I usually skim them. We just get The Wall Street Journal and the Washington Times. We used to get the Washington Post, but it just … went too far for me. I couldn’t handle it anymore.
What tipped you over the edge?
It was the treatment of almost any conservative issue. It was slanted and often nasty. And, you know, why should I get upset every morning? I don’t think I’m the only one. I think they lost subscriptions partly because they became so shrilly, shrilly liberal.
So no New York Times, either?
No New York Times, no Post.
And do you look at anything online?
I get most of my news, probably, driving back and forth to work, on the radio.
Not NPR?
Sometimes NPR. But not usually.
Talk guys?
Talk guys, usually.
Do you have a favorite?
You know who my favorite is? My good friend Bill Bennett. He’s off the air by the time I’m driving in, but I listen to him sometimes when I’m shaving. He has a wonderful talk show. It’s very thoughtful. He has good callers. I think they keep off stupid people.
That’s what producers get paid for.
That’s what’s wrong with those talk shows.
Let’s talk about the state of our politics for a moment. I know you haven’t been to a State of the Union address for a while, and I wanted to know why.
It’s childish.
When was the last time you went to one?
Oh, my goodness, I expect fifteen years. But I’m not the only one who didn’t go. John Paul Stevens never went, Bill Rehnquist never went during his later years. Because it is a childish spectacle. And we are trucked in just to give some dignity to the occasion. I mean, there are all these punch lines, and one side jumps up—¬Hooray! And they all cheer, and then another punch line, and the others stand up, Hooray! It is juvenile! And we have to sit there like bumps on a log. We can clap if somebody says, “The United States is the greatest country in the world.” Yay! But anything else, we have to look to the chief justice. Gee, is the chief gonna clap? It didn’t used to be that bad.
When?
The Gipper may have been the one who started it. He’s the one who brought in people he would recognize in the audience, and things of that sort—made it a television spectacle. And once it becomes a television spectacle, it’s nothing serious.
Of course, the press has the whole thing, and they’re up in the gallery—you can hear them turning pages as the president is speaking. Why doesn’t he just print it out and send it over?
It’s like the Haggadah.
In the years when I went, we used to take bets on how long the speech would be. Rehnquist loved to have betting pools—on football games, baseball games.
Did you ever win?
I never won.
It was recently reported that the justices don’t communicate with one another by e-mail. Do you go online at all?
Yeah. Sure, I use the Internet.
You’ve got grandkids. Do you feel like the Internet has coarsened our culture at all?
I’m nervous about our civic culture. I’m not sure the Internet is largely the cause of it. It’s certainly the cause of careless writing. People who get used to blurbing things on the Internet are never going to be good writers. And some things I don’t understand about it. For example, I don’t know why anyone would like to be “friended” on the network. I mean, what kind of a narcissistic society is it that ¬people want to put out there, This is my life, and this is what I did yesterday? I mean … good grief. Doesn’t that strike you as strange? I think it’s strange.
I’ve gotten used to it.
Well, I am glad that I am not raising kids today. And I’m rather pessimistic that my grandchildren will enjoy the great society that I’ve enjoyed in my lifetime. I really think it’s coarsened. It’s coarsened in so many ways.
Like what?
One of the things that upsets me about modern society is the coarseness of manners. You can’t go to a movie—or watch a television show for that matter—without hearing the constant use of the F-word—including, you know, ladies using it. People that I know don’t talk like that! But if you portray it a lot, the society’s going to become that way. It’s very sad.
And you can’t have a movie or a television show without a nude sex scene, very often having no relation to the plot. I don’t mind it when it is essential to the plot, as it sometimes is. But, my goodness! The society that watches that becomes a coarse society.
What do you make of the new pope?
He’s the Vicar of Christ. He’s the chief. I don’t run down the pope.
I’m not inviting you to run down the pope. But what do you think of his recent comments, that the church ought to focus less on divisive issues and more on helping the poor?
I think he’s absolutely right. I think the church ought to be more evangelistic.
But he also wanted to steer its emphasis away from homosexuality and abortion.
Yeah. But he hasn’t backed off the view of the church on those issues. He’s just saying, “Don’t spend all our time talking about that stuff. Talk about Jesus Christ and evangelize.” I think there’s no indication whatever that he’s changing doctrinally.
I spent my junior year in Switzerland. On the way back home, I spent some time in England, and I remember going to Hyde Park Corner. And there was a Roman Catholic priest in his collar, standing on a soapbox, preaching the Catholic faith and being heckled by a group. And I thought, My goodness. I thought that was admirable. I have often bemoaned the fact that the Catholic church has sort of lost that evangelistic spirit. And if this pope brings it back, all the better.
The one thing I did think, as he said those somewhat welcoming things to gay men and women, is, Huh, this really does show how much our world has changed. I was wondering what kind of personal exposure you might have had to this sea change.
I have friends that I know, or very much suspect, are homosexual. Everybody does.
Have any of them come out to you?
No. No. Not that I know of.
Has your personal attitude softened some?
Toward what?
Homosexuality.
I don’t think I’ve softened. I don’t know what you mean by softened.
If you talk to your grandchildren, they have different opinions from you about this, right?
I don’t know about my grandchildren. I know about my children. I don’t think they and I differ very much. But I’m not a hater of homosexuals at all.
I still think it’s Catholic teaching that it’s wrong. Okay? But I don’t hate the people that engage in it. In my legal opinions, all I’ve said is that I don’t think the Constitution requires the people to adopt one view or the other.
There was something different about your DOMA opinion, I thought. It was really pungent, yes, but you seemed more focused on your colleagues’ jurisprudence. You didn’t talk about a gay lobby, or about the fact that people have the right to determine what they consider moral. In Lawrence v. Texas, you said Americans were within their rights in “protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”
I would write that again. But that’s not saying that I personally think it’s destructive. Americans have a right to feel that way. They have a democratic right to do that, and if it is to change, it should change democratically, and not at the ukase of a Supreme Court.
The what?
U-K-A-S-E. Yeah. I think that’s how you say it. It’s a mandate. A decree.
Whatever you think of the opinion, Justice ¬Kennedy is now the Thurgood Marshall of gay rights.
[Nods.]
I don’t know how, by your lights, that’s going to be regarded in 50 years.
I don’t know either. And, frankly, I don’t care. Maybe the world is spinning toward a wider acceptance of homosexual rights, and here’s Scalia, standing athwart it. At least standing athwart it as a constitutional entitlement. But I have never been custodian of my legacy. When I’m dead and gone, I’ll either be sublimely happy or terribly unhappy.
You believe in heaven and hell?
Oh, of course I do. Don’t you believe in heaven and hell?
No.
Oh, my.
Does that mean I’m not going?
[Laughing.] Unfortunately not!
Wait, to heaven or hell?
It doesn’t mean you’re not going to hell, just because you don’t believe in it. That’s Catholic doctrine! Everyone is going one place or the other.
But you don’t have to be a Catholic to get into heaven? Or believe in it?
Of course not!
Oh. So you don’t know where I’m going. Thank God.
I don’t know where you’re going. I don’t even know whether Judas Iscariot is in hell. I mean, that’s what the pope meant when he said, “Who am I to judge?” He may have recanted and had severe penance just before he died. Who knows?
Can we talk about your drafting process—
[Leans in, stage-whispers.] I even believe in the Devil.
You do?
Of course! Yeah, he’s a real person. Hey, c’mon, that’s standard Catholic doctrine! Every Catholic believes that.
Every Catholic believes this? There’s a wide variety of Catholics out there …
If you are faithful to Catholic dogma, that is certainly a large part of it.
Have you seen evidence of the Devil lately?
You know, it is curious. In the Gospels, the Devil is doing all sorts of things. He’s making pigs run off cliffs, he’s possessing people and whatnot. And that doesn’t happen very much anymore.
No.
It’s because he’s smart.
So what’s he doing now?
What he’s doing now is getting people not to believe in him or in God. He’s much more successful that way.
That has really painful implications for atheists. Are you sure that’s the ¬Devil’s work?
I didn’t say atheists are the Devil’s work.
Well, you’re saying the Devil is ¬persuading people to not believe in God. Couldn’t there be other reasons to not believe?
Well, there certainly can be other reasons. But it certainly favors the Devil’s desires. I mean, c’mon, that’s the explanation for why there’s not demonic possession all over the place. That always puzzled me. What happened to the Devil, you know? He used to be all over the place. He used to be all over the New Testament.
Right.
What happened to him?
He just got wilier.
He got wilier.
Isn’t it terribly frightening to believe in the Devil?
You’re looking at me as though I’m weird. My God! Are you so out of touch with most of America, most of which believes in the Devil? I mean, Jesus Christ believed in the Devil! It’s in the Gospels! You travel in circles that are so, so removed from mainstream America that you are appalled that anybody would believe in the Devil! Most of mankind has believed in the Devil, for all of history. Many more intelligent people than you or me have believed in the Devil.
I hope you weren’t sensing contempt from me. It wasn’t your belief that surprised me so much as how boldly you expressed it.
I was offended by that. I really was.
I’m sorry to have offended you!
Have you read The Screwtape Letters?
Yes, I have.
So, there you are. That’s a great book. It really is, just as a study of human nature.
Can I ask about your engagement with regular pop culture?
I’m pretty bad on regular pop culture.
I know you watched the show 24. Do you also watch Homeland?
I don’t watch Homeland. I don’t even know what Homeland is. I watched one episode of—what is it? Duck Dynasty?
What?
I don’t watch it regularly, but I’m a hunter. I use duck calls …
Did you just stumble on it by accident?
No! So many people said “Oh, it’s a great show” that I thought I’d better look at it. Have you looked at it?
No. But there are three books on the New York Times’ best-seller list about Duck Dynasty.
Is that right?
Yes. Three. Did you watch The ¬Sopranos? Mad Men?
I watched The Sopranos, I saw a couple of episodes of Mad Men. I loved Seinfeld. In fact, I got some CDs of Seinfeld. ¬Seinfeld was hilarious. Oh, boy. The Nazi soup kitchen? No soup for you!
Speaking of Duck Dynasty, how does a nice boy from Queens become a hunter?
You know, it may be genetic. My grandfather—my namesake, his name is Antonino—he was an avid hunter. He used to disappear for a week—his family would be very upset—because he’d be off in the hills of Sicily, hunting. My last memories of him were—we had a bungalow, which he had built out on Long Island, back in the days when Long Island was really the country. I went in the woods hunting rabbits with him—there’s a photo of me holding a rabbit and his twelve-gauge shotgun. Then he got too old to go in the woods, but my uncle Frank had a large vegetable garden, and my grandfather would sit on the back porch of this bungalow, holding his twelve-gauge shotgun, and would wait for the rabbits to come to him in the vegetable garden. Boom! He would shoot them there.
There isn’t much sport in that.
Well, they’re hard to hit.
If you’re waiting for them to come to your garden?
Listen, when you’re 85 …
Fair enough.
And I inherited his gun. It was an L.C. Smith, which was a very expensive shotgun from the time. It’s corroded about six inches down from the end of the barrel, because that’s where he held it while he was waiting for the rabbits, and the salts from your hand corrode the barrel.
My grandfather is partly the answer. But I also got into it because my eldest son married a girl from Louisiana, whose father was an avid hunter. He got me into deer hunting up in Mississippi. There, I fell in with some Cajuns—including Louis Prejean, the brother of Sister Prejean. He’s as conservative as she is liberal.
I was going to ask.
I got in with them, and I got into goose hunting, duck hunting, redfish fishing—it has been a great addition to my later years. It gets me outside the Beltway with people of the sort I had never known before. They could live in the woods. Give ’em a gun, they could survive in the woods on their own. It’s nice to get in with a different crowd. None of them are lawyers. Or very few.
Here’s another thing I find unexpected about you: that you play poker. Do not take this the wrong way, but you strike me as the kind of person who would be a horrible poker player.
Shame on you! I’m a damn good poker player.
But aren’t you the kind of guy who always puts all of his cards on the table? I feel like you would be the worst bluffer ever.
You can talk to the people in my poker set.
Do you have a tell?
What?
A tell.
What’s a tell?
What’s a tell? Are you joking?
No.
A tic or behavior that betrays you’re bluffing.
Oh! That’s called a tell? No. I never … do you play poker?
Badly. But I feel like Washington has been playing a pretty high-stakes game lately. You’ve seen more Congresses than I have, and you’ve seen this nation go through more turbulent events than I have. But now seems an especially ¬acerbic moment.
It’s a nasty time. It’s a nasty time. When I was first in Washington, and even in my early years on this Court, I used to go to a lot of dinner parties at which there were people from both sides. Democrats, Republicans. Katharine Graham used to have dinner parties that really were quite representative of Washington. It doesn’t happen anymore.
True, though earlier you expressed your preference for conservative media, which itself can be isolating in its own way.
Oh, c’mon, c’mon, c’mon! [Laughs.] Social intercourse is quite different from those intellectual outlets I respect and those that I don’t respect. I read newspapers that I think are good newspapers, or if they’re not good, at least they don’t make me angry, okay? That has nothing to do with social intercourse. That has to do with “selection of intellectual fodder,” if you will.
When was the last party you went to that had a nice healthy dose of both liberals and conservatives?
Geez, I can’t even remember. It’s been a long time.
Is that true on the Court as well? Are things tenser in this building? Were there ever more harmonious groupings of justices than others?
No. Everybody I’ve served with on the Court I’ve regarded as a friend. Some were closer than others, but I didn’t consider myself an enemy of any of them. Now, that hasn’t always been the case. Frankfurter and Douglas, the Harvard Law professor and the Yale Law professor, hated each other. They wouldn’t talk to each other. Imagine being on a committee of nine people where two of them won’t talk to each other! But it’s never been the case since I’ve been on the Court.
You were asked this summer about the most wrenching case you’ve decided, and you ¬answered, “Is Obamacare too recent?”
[Laughs.]
Is that true?
No. Probably the most wrenching was Morrison v. Olson, which involved the independent counsel. To take away the power to prosecute from the president and give it to somebody who’s not under his control is a terrible erosion of presidential power. And it was wrenching not only because it came out wrong—I was the sole dissenter—but because the opinion was written by Rehnquist, who had been head of the Office of Legal Counsel, before me, and who I thought would realize the importance of that power of the president to prosecute. And he not only wrote the opinion; he wrote it in a manner that was more extreme than I think Bill Brennan would have written it. That was wrenching.
That sheds new light on your famous odd-couple friendship with Ruth Bader Ginsburg. Do you think it’s easier to be close to a colleague who is so ¬ideologically different?
There may be something to that. If you have low expectations, you’re not disappointed. When it’s somebody who you think is basically on your side on these ideological controversies, and then that person goes over to the dark side, it does make you feel bad.
Who was or is your favorite sparring partner on the bench? The person who makes or made your ideas and opinions better?
Probably John Paul Stevens. There are some justices who adopt a magisterial approach to a dissent. Rehnquist used to do it. [He turns his nose up theatrically, flutters his hand in dismissal.] Just, Don’t even respond to the dissent. This is the opinion of the Court, and the hell with you. I am not like that. I think you should give the dissenter the respect to respond to the points that he makes. And so did John Stevens. So he and I used to go back and forth almost endlessly.
Are there any lawyers who you also consider really formidable?
That’s one of the biggest changes on the Court since I’ve been here. When I arrived, there really was not what you could call a Supreme Court bar—people who appear regularly. But now we have people who appear four, five times a term. What has happened is the big law firms have adopted Supreme Court practices. I’m not sure they make money on it, but they get prestige from it. So we get very good lawyers. Many of them ex–solicitor generals.
How does that change your job?
It makes my job easier. We are ¬dependent upon these people who have lived with the case for months—in many cases years—to clarify the facts and to clarify the law. I come to the thing maybe a month beforehand. These lawyers—the reason to listen to them is that they presumably know more about the subject than you do.
Another change is that many of the states have adopted a new office of solicitor general, so that the people who come to argue from the states are people who know how to conduct appellate argument. In the old days, it would be the attorney general—usually an elected attorney general. And if he gets a case into the Supreme Court [pumps his fist], he’s going to argue it himself! Get the press and whatnot. Some of them were just disasters. They were throwing away important points of law, not just for their state, but for the other 49.
Let’s talk about your opinions for a second. Do you draft them yourself? What’s your process?
I almost never do the first draft.
How do your clerks know your voice so well?
Oh, I edit it considerably between the first and the last.
How do you choose your clerks?
Very carefully. What I’m looking for is really smart people who don’t necessarily have to share my judicial philosophy, but they cannot be hostile to it. And can let me be me when they draft opinions, can write opinions that will follow my judicial philosophy rather than their own. And I’ve said often in the past that other things being equal, which they usually are not, I like to have one of the four clerks whose predispositions are quite the opposite of mine—who are social liberals rather than social conservatives. That kind of clerk will always be looking for the chinks in my armor, for the mistakes I’ve made in my opinion. That’s what clerks are for—to make sure I don’t make mistakes. The trouble is, I have found it hard to get liberals like that, who pay attention to text and are not playing in a policy sandbox all the time.
How picky are you about which law schools they come from?
Well, some law schools are better than others. You think they’re all the same?
Now, other things being equal, which they usually are not, I would like to select somebody from a lesser law school. And I have done that, but really only when I have former clerks on the faculty, whose recommendations I can be utterly confident of. Harvard, Yale, Stanford, Chicago, they’re sort of spoiled. It’s nice to get a kid who went to a lesser law school. He’s still got something to prove. But you can’t make a mistake. I mean, one dud will ruin your year.
While your opinions are delectable to read, I’m wondering: Do you ever regret their tone? Specifically, that your tone might have cost you a majority?
No. It never cost me a majority. And you ought to be reluctant to think that any justice of the Supreme Court would make a case come out the other way just to spite Scalia. Nobody would do that. You’re dealing with significant national issues. You’re dealing with real litigants—no. My tone is sometimes sharp. But I think sharpness is sometimes needed to demonstrate how much of a departure I believe the thing is. Especially in my dissents. Who do you think I write my dissents for?
Law students.
Exactly. And they will read dissents that are breezy and have some thrust to them. That’s who I write for.
Is your favorite one-liner still the ¬sausage one? “This case, involving legal requirements for the content and ¬labeling of meat products such as ¬frankfurters, affords a rare opportunity to explore simultaneously both parts of Bismarck’s aphorism that ‘No man should see how laws or sausages are made.’ ”
It’s the best opening line of an opinion.
It was a really good opinion.
Isn’t that good? I was on the Court of Appeals, that wasn’t even up here. But my favorite one-liner is from Morrison v. Olson: “But this wolf comes as a wolf.” You know the one I’m talking about?
Yes.
That’s a great one. You gotta read the whole paragraph. Boom. [Punches the air.] But I often worry when I go back and read one of my early opinions like ¬Morrison v. Olson. I say, “God, that’s a good opinion. I’m not sure I could write as good an opinion today.” You always wonder whether you’re losing your grip and whether your current opinions are not as good as your old ones.
Wasn’t it Stevens who said to Souter, “Tell me when I’m losing it and need to retire?”
No, it wasn’t Stevens. I think it was Holmes who asked Brandeis.
Oh, so I got it completely wrong.
[Smiles.] Completely wrong.
But how will you know when it’s time to go? It doesn’t seem like you have anything to worry about at the moment, but it’s interesting to hear you even flick at that.
Oh, I’ll know when I’m not hitting on all eight cylinders.
Are you sure? All these people in ¬public life—athletes in particular—never have a clue.
No, I’ll know.
What will the telltale sign be?
One will be that I won’t enjoy it as much as I do. I think that’s the beginning of the end. I was worried lately about the fact that the job seems easier. That I really don’t have to put in the excessively long hours that I used to. I still work hard. But it does seem easier than it used to. And that worried me. You know: Maybe I’m getting lazy. You know, I’m not doing it as thoroughly, or whatever. But after due reflection, I’ve decided the reason it’s getting easier is because so many of the cases that come before us present the issue of whether we should extend one of the opinions from the previous 27 years that I’ve been here, which I dissented from in the first place!
Yet today, you’re a conservative icon, and federalist societies abound on ¬university campuses, and originalism and textualism are no longer marginal. Do you feel like you’re winning or losing the battle for constitutional interpretation?
I don’t know how much progress I’ve made on originalism. That’s to be seen. I do think originalism is more respectable than it was. But there’s still only two justices up here who are thoroughgoing originalists. I do think things are better than they were. For example, I truly thought I’d never see an originalist on the faculty of Harvard Law School. You know, everybody copies Harvard—that’s the big ship. There are now three originalists on the faculty, and I think I heard that they’ve just hired, or are considering hiring, a fourth. I mean, that’s amazing to me. Elena Kagan did that, and the reason she did it is that you want to have on your faculty representatives of all responsible points of view. What it means is that at least originalism is now regarded as a respectable approach to constitutional interpretation. And it really wasn’t twenty years ago, it was not even worth talking about in serious academic circles.
An area where I think I have made more progress is textualism. I think the current Court pays much more attention to the words of a statute than the Court did in the eighties. And uses much less legislative history. If you read some of our opinions from the eighties, my God, two thirds of the opinions were discussing committee reports and floor statements and all that garbage. We don’t do much of that anymore. And I think I have assisted in that transition.
Fifty years from now, which decisions in your tenure do you think will be heroic?
Heroic?
Heroic.
Oh, my goodness. I have no idea. You know, for all I know, 50 years from now I may be the Justice Sutherland of the late-twentieth and early-21st century, who’s regarded as: “He was on the losing side of everything, an old fogey, the old view.” And I don’t care.
Do you think you’re headed in that direction?
I have no idea. There are those who think I am, I’m sure. I can see that happening, just as some of the justices in the early years of the New Deal are now painted as old fogies. It can happen.
Wow, it’s amazing your mind even went there. I ask about a triumph, and you give me another answer entirely, about the possibility of failure. I was expecting you to end on a high note. Do you want to try another stab at a heroic decision?
Heroic is probably the wrong word. I mean the most heroic opinion—maybe the only heroic opinion I ever issued— was my statement refusing to recuse.
From the case involving Vice-¬President Cheney, with whom you’d gone hunting?
I thought that took some guts. Most of my opinions don’t take guts. They take smarts. But not courage. And I was proud of that. I did the right thing and it let me in for a lot of criticism and it was the right thing to do and I was proud of that. So that’s the only heroic thing I’ve done.
As to which is the most impressive opinion: I still think Morrison v. Olson. But look, we have different standards, I suppose, for what’s a great opinion. I care about the reasoning. And the reasoning in Morrison, I thought, was devastating—devastating of the majority. If you ask me which of my opinions will have the most impact in the future, it probably won’t be that dissent; it’ll be some majority opinion. But it’ll have impact in the future not because it’s so beautifully reasoned and so well written. It’ll have impact in the future because it’s authoritative. That’s all that matters, unfortunately.
*
This interview was condensed and edited from two conversations, one in Washington, D.C., and one over the phone, on September 26 and October 3.
Copyright © 2013, New York Media LLC (emphasis in original)
http://nymag.com/news/features/antonin-scalia-2013-10/ [with comments]
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Minnesota Archbishop John Nienstedt Claims Satan Behind Gay Marriage, Condoms And Porn
Published on Sep 10, 2013 by NapaInstitute1 [ http://www.youtube.com/user/NapaInstitute1 ]
Since the beginning of man's life on earth, the family has served as the cornerstone of society. The integrity of the family set the standard for society from the beginning of time as the underpinning of our civilization, reflecting the beneficial differences between men and women and the complementarity of their hearts, minds, and bodies. Aristotle argued that the natural progression of human beings flowed from the family via small communities out to the polis. The role of family in today's culture is threatened by many forces, not the least of which is the confrontation between the conjugal view and a revisionist's view of marriage. Contraception, cohabitation and confusion over the influence of gender in the rearing of children contribute to this negative state of affairs. The loss of a Catholic culture supporting marriage and family must be confronted and efforts made to build the culture anew.
http://www.youtube.com/watch?v=QvH7NBAK89g [as embedded (without the detail)]
By Meredith Bennett-Smith
Posted: 09/15/2013 7:53 am EDT | Updated: 09/17/2013 8:13 am EDT
Fornicators beware: sodomy, condoms and pornography are the work of the devil.
That's the message of a speech posted online last week [above, as embedded] by the Catholic Archbishop of St. Paul and Minneapolis, John C. Nienstedt [ http://www.archspm.org/bishops/bishops-detail.php?intResourceID=901 ]. A controversial religious leader with a stridently anti-gay stance [ http://www.startribune.com/local/172975931.html ], Nienstedt originally made the comments while speaking to the conservative Napa Institute Conference on August 2 [ http://napa-institute.org/archbishop-nienstedts-2013-napa-institute-conference-talk/ ]. The speech detailed the importance of family, as well as the devil's multiple attempts to weaken the institution of heterosexual marriage [ http://www.advocate.com/politics/religion/2013/09/11/archbishop-marriage-equality-was-satans-creation ].
"Today, many evil forces have set their sights on the dissolution of marriage and the debasing of family life," Nienstedt said. "Sodomy, abortion, contraception, pornography, the redefinition of marriage, and the denial of objective truth are just some of the forces threatening the stability of our civilization. The source of these machinations is none other than the Father of Lies. Satan knows all too well the value that the family contributes to the fabric of a good solid society, as well as the future of God’s work on earth."
In Nienstedt's opinion of course [ http://www.legatusmagazine.org/family-as-the-foundation-of-culture/ ], "family" means specifically a union "comprised of one man and one woman." Delivered one day after Minnesota began issuing same-sex marriage licenses, the Napa Institute speech is consistent with the archbishop's public statements condemning gay marriage [ http://thenewcivilrightsmovement.com/us-archbishop-satan-is-the-source-of-same-sex-marriage/marriage/2013/09/10/74829 ], notes The New Civil Rights Movement.
Voted Minneapolis blog City Pages' Best Villain of the Twin Cities [ http://www.citypages.com/bestof/2013/award/best-villain-2779553/ ] in 2013, Nienstedt has "used his position to bully proponents and demonize fellow Catholics who disagreed with him," wrote the blog's Jesse Marx [ http://blogs.citypages.com/blotter/2013/09/archbishop_john_nienstedt_blames_the_devil_for_sodomy_condoms_and_marriage_equality.php ]. "He donated more than $650,000 of church money to the anti-gay-marriage cause."
In October of 2012, Nienstedt found himself at the center of a similar controversy when a letter he wrote surfaced in which he tells the mother a young gay man that she must reject her son or go to hell herself.
"I write to inform you that the teaching of the Catholic Church on homosexuality, as described in paragraphs 2357 and 2358 and 2359 of the Catechism of the Catholic Church is rooted in Scripture and based on the Natural Moral Law," Nienstedt wrote, according to ThinkProgress [ http://thinkprogress.org/lgbt/2012/10/09/976841/minnesota-archbishop-told-mother-to-reject-her-gay-son-or-go-to-hell/ ]. "Catholics are bound in conscience to believe this teaching. Those who do not cannot consider themselves to be Catholic and ought not to participate in the sacramental life of the Church... Your eternal salvation may well depend upon a conversation of heart on this topic."
h/t Raw Story [ http://www.rawstory.com/rs/2013/09/13/minneapolis-arch-bishop-blames-satan-for-marriage-equality/ ]
Copyright © 2013 TheHuffingtonPost.com, Inc.
http://www.huffingtonpost.com/2013/09/15/minneapolis-archbishop-gay-marriage-satan-john-nienstedt_n_3927615.html [with (over 5,000) comments]
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Do Bishops Run Your Hospital?
Illustration: Gérard DuBois
The Catholic Church is making health care decisions for more and more Americans—whether they know it or not.
By Stephanie Mencimer
November/December 2013 Issue
One morning in November 2010, an ambulance brought a woman who was 15 weeks pregnant to the emergency room at Sierra Vista Regional Health Center, 70 miles outside Tucson, Arizona. She had been carrying twins and had miscarried one at home in the bathtub. The chances of the second fetus making it were "minuscule," Dr. Robert Holder, the OB-GYN on call that day, later recalled in an affidavit [ http://www.motherjones.com/documents/798242-dr-robert-holder-affidavit ]. He told the woman and her husband that trying to continue the pregnancy would put her at risk of severe bleeding and infection. In short, she needed an emergency abortion.
But there was a problem: Sierra Vista was in the midst of a trial merger with a Catholic hospital company, Carondelet Health Network, which required its doctors to abide by the church's ethical and religious directives. Hospital administrators told Holder that because the surviving fetus still had a heartbeat, he could not perform an abortion. Holder had to send the patient to a hospital in Tucson—a three-hour delay that he believed put her at risk for life-threatening complications.
The doctors at Sierra Vista aren't the only ones to struggle with submitting their medical decisions to a higher authority. A growing number of patients are finding their health care options governed by the church's guidelines as Catholic hospitals, long major players in the health care market, have been on a merger streak, acquiring everything from local hospital systems to medical practices, nursing homes, and health insurance plans.
Between 2001 and 2011, the number of American hospitals affiliated with the Catholic Church grew 16 percent, even as the number of public hospitals and secular nonprofit hospitals dropped 31 percent and 12 percent, respectively, according to an upcoming report by the American Civil Liberties Union and MergerWatch [ http://www.mergerwatch.org/ ], a nonprofit that tracks religious health care mergers. In 2012, Catholic hospitals and health care systems were involved in 24 mergers or acquisitions, according to Irving Levin Associates, a market research firm. Ten of the 25 largest nonprofit hospital systems [ http://www.beckershospitalreview.com/lists/25-largest-non-profit-hospital-systems.html ] in the country are Catholic, and Catholic hospitals care for 1 in 6 [ http://www.chausa.org/docs/default-source/general-files/mini_profile-pdf.pdf?sfvrsn=0 ] American patients. In at least eight states, 30 percent or more of patient admissions are at Catholic facilities.
Catholic hospitals are required to follow health care directives [ http://motherjones.com/documents/798243-ethical-religious-directives-catholic-health ] handed down by the US Conference of Catholic Bishops [ http://www.usccb.org/about/bishops-and-dioceses/index.cfm ]—a group of celibate older men who have become increasingly conservative over the past few decades. (Recall the bishops' ongoing showdown [ http://www.usccb.org/news/2012/12-026.cfm ] with the White House over Obamacare's requirement that health insurance plans cover contraception.) The issues go far beyond abortion. The bishops' directives restrict how doctors in Catholic hospitals may treat everything from miscarriages to terminal illness. How this treatment differs [ http://www.nwlc.org/sites/default/files/pdfs/ibis_factsheet_final.pdf ] from that of secular hospitals is not always disclosed [ http://www.mergerwatch.org/disclosure/ ] to patients.
"When you go into a hospital or an ER, you do not think that there's a bishop between you and your doctor," says Linda McCarthy, CEO of a Planned Parenthood branch in western Washington. In 2010, Peter Sartain, a prominent bishop recently enlisted by the church to crack down on nuns deemed too liberal, was appointed to the Seattle diocese. Not long afterward, he told the Catholic hospital in McCarthy's area to stop performing lab work for Planned Parenthood that the hospital had handled for at least a decade, including tests unrelated to abortion, such as cholesterol screenings. McCarthy publicized the demand and the hospital backed off, for the time being.
"The Catholic bishops are seizing an opportunity to control the health care we all pay for, and they're being wildly successful," says Monica Harrington, the co-chair of Washington Women for Choice. A spate of proposed deals could leave Catholic facilities accounting for 50 percent of the state's hospital admissions. "We could very well end up with three conservative bishops overseeing health care for 6 million people," McCarthy says.
Abortion services are always quick to go when a Catholic hospital takes over, but the changes go much further. In many cases, doctors are prohibited from prescribing birth control, and hospital pharmacies won't sell it. Doctors may even be told not to counsel patients about it. Catholic hospitals have been reluctant to offer emergency contraception to rape victims, and when they do, they first require a pregnancy test to ensure the woman was not pregnant before the assault. The bishops' guidelines forbid tubal ligations and vasectomies. They also extend to end-of-life care: Catholic hospitals may ignore patients' requests to be removed from feeding tubes or life support, even if those wishes are expressed in living wills. And many states [ https://www.aclu.org/maps/non-discrimination-laws-state-state-information-map ] allow religious hospitals to discriminate [ http://www.thestranger.com/seattle/who-would-jesus-fire/Content?oid=16348670 ] against gays and lesbians, both as employees and as patients.
Dr. Bruce Silva, an OB-GYN at Sierra Vista, remembers that during his hospital's trial merger, church officials told doctors they could give chemotherapy to a pregnant woman with breast cancer, "even though you know it will kill the baby—but you can't give her a termination before, because that would kill the baby directly." Sierra Vista ultimately rejected the merger.
Catholic hospitals' treatment of miscarriage often diverges from the generally accepted standards of care followed in secular hospitals, according to Lori Freedman, an assistant professor of obstetrics at the University of California-San Francisco who published a study [ http://www.ansirh.org/_documents/library/freedman_ajob2013.pdf ] on the subject in 2012. Doctors told her about being forced to wait to intervene until a woman was at life-threatening risk. "We often tell patients that we can't do anything in the hospital but watch you get infected," one said.
The church also won't allow doctors to terminate ectopic pregnancies [ http://www.aafp.org/afp/2000/0215/p1080.html ] until a woman is in mortal danger. In these pregnancies, the embryo implants outside of the uterus, most often in a fallopian tube, where it grows and can rupture the tube, potentially causing fatal bleeding. The bishops consider ending these unviable pregnancies a "direct abortion" unless a woman's life is immediately at risk. A doctor quoted in a recent study commissioned by the National Women's Law Center (NWLC) reported seeing several near-fatal tubal ruptures at her Catholic-affiliated hospital.
Despite the dangers such policies pose to patients, Catholic hospitals often do not explain them to patients, and hospitals have fought efforts to require disclosure. The NWLC has accused Catholic hospitals [ http://www.nwlc.org/sites/default/files/pdfs/nwlc_cms_complaint_jan_2011.pdf ] of ignoring "their legal obligations to disclose all treatment options" under Medicare and Medicaid. As a result, "women don't always know what has happened," says Kelli Garcia, senior counsel at the NWLC. "So if their tube ruptures, they don't necessarily know that they could have had different treatment—because what happens within the Catholic hospitals, not only are they not providing treatment, they also aren't providing information about the treatment." The conference of bishops and the Catholic Health Association, which represents more than 600 hospitals, did not respond to requests for comment.
Even doctors who help women get pregnant are affected by the bishops' guidelines, which ban any infertility treatment that "separates procreation from the marital act." That includes in vitro fertilization, artificial insemination, or the use of donor eggs or sperm. Dr. Michael Thomas, a reproductive endocrinologist, had to close his practice in Kentucky and move across the river to the University of Cincinnati after the hospital he was affiliated with merged with [ http://www.stelizabeth.com/history.aspx ] a Catholic institution. Thomas says many people didn't realize the merger would affect not just abortion, but "a couple's ability to get pregnant in the state of Kentucky."
What happens if hospitals refuse to follow the bishops' directives? In 2009, doctors at St. Joseph's Hospital and Medical Center in Phoenix performed a life-saving abortion [ http://www.npr.org/templates/story/story.php?storyId=126985072 ] for a seriously ill mother of four. Afterward, the city's bishop excommunicated a nun on the ethics committee who had approved the procedure. He then demanded that the hospital sign an agreement [ https://www.aclu.org/files/assets/EMTALA-_ACLU_CMS_Follow_Up_Letter-St__Joseph-_12-22-2010_FINAL.pdf ] promising to never again provide emergency abortion care, even when a woman's life was at risk. Hospital administrators believed the agreement violated a federal law requiring hospitals to provide emergency treatment and refused to sign, so the bishop stripped the facility of its Catholic affiliation. The following year, a bishop revoked the Catholic status of a hospital in Bend, Oregon [ http://www.ncregister.com/daily-news/tip_of_the_iceberg_for_church-backed_hospitals/ ], that refused to stop performing tubal ligations.
In the face of blocked [ http://www.nrtoday.com/news/5912919-113/peacehealth-chi-health-based ] deals [ http://www.mergerwatch.org/mergerwatch-news/2012/10/15/its-official-waterbury-hospital-merger-called-off.html ] and growing opposition [ http://www.mergerwatch.org/mergerwatch-news/2012/1/3/louisville-merger-blocked-by-governor.html ] from women's and civil liberties groups, some hospital officials have downplayed the mergers' impact on reproductive care, even arguing that Planned Parenthood will take up the slack. A Washington hospital actually built a $2 million PP facility [ http://www.plannedparenthood.org/ppgnw/PPGNW-and-Swedish-Work-Together-32833.htm ] next door to facilitate its merger with a Catholic hospital. But Planned Parenthood can't replace hospitals for medically sensitive abortions, says Sheila Reynertson, the advocacy coordinator at MergerWatch: "They're in the hospital for a reason."
In the end, hospital mergers have allowed the bishops to accomplish in practice what they haven't been able to achieve through the political process: making abortion and contraception harder to access. In Wisconsin, for example, where nearly 30 percent of hospitals are Catholic, the Legislature passed a law [ http://www.aclu.org/files/assets/81__opinion__order.pdf ] requiring doctors who perform abortions to have admitting privileges at a local hospital. Because Catholic hospitals haven't granted those privileges on religious grounds, many of the state's abortion providers will not be able to meet the new requirements.
These types of conflicts will only grow as the merger trend continues. "Pretty soon, people may find that the only hospitals in their area are Catholic. And, regardless of their own religious beliefs, they will be unable to get the care they need," says the NWLC's Garcia. "It is going to be a real wake-up call."
*
Related
Businesses Refusing to Cover Contraception Because…Citizens United?!
Corporations argue that the Supreme Court has exempted them from a key part of Obamacare.
http://www.motherjones.com/politics/2013/10/citizens-united-contraception-corporations-religious-freedom
Obamacare Will Save Lives: Trying to Kill It Is Cruel, Stupid, and Deadly
Why Ted Cruz and the Republicans' anti-Obamacare crusade means life or death for millions of Americans—like me.
http://www.motherjones.com/politics/2013/10/skin-cancer-obamacare-ted-cruz
Obama 1, Catholic Bishops 0
The US Conference of Catholic Bishops declared something of a holy war on the Obama administration this year. Catholics voted for Obama anyway.
http://www.motherjones.com/mojo/2012/11/obama-catholic-bishops-2012
*
Copyright ©2013 Mother Jones and the Foundation for National Progress
http://www.motherjones.com/politics/2013/10/catholic-hospitals-bishops-contraception-abortion-health-care [with comments]
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Rev. Tom Pivinksi, Retired Catholic Priest, Gets Married To Partner Of 20 Years Malcolm Navias
10/24/2013
Retired Catholic priest the Rev. Tom Pivinski [ http://www.trinitynj.com/1staff.html#tomP ] and his partner of over 20 years, Malcolm Navias [ https://www.facebook.com/photo.php?fbid=10150970090926236&set=pb.799161235.-2207520000.1382547391.&type=3&theater ], celebrated a beautiful interfaith wedding on Monday at their home in Asbury Park, New Jersey. They wed on the very first day that same-sex marriage was allowed to happen in New Jersey after Governor Chris Christie dropped his appeal [ http://usnews.nbcnews.com/_news/2013/10/21/21058974-chris-christie-drops-challenge-to-same-sex-marriage-in-new-jersey ] to overturn legalization.
Pivinski had already officiated three marriages [ http://www.advocate.com/politics/marriage-equality/2013/10/21/watch-retired-roman-catholic-priest-weds-gay-nj-couples-hell ] in the wee hours of Monday morning, as couples didn't want to hesitate a minute more than they had already been waiting to finally become husband and husband or wife and wife.
He told the Ashbury Park Press (APP) [ http://www.usatoday.com/story/news/nation/2013/10/21/gay-couples-wed-as-nj-recognizes-nuptials/3141655/ ], "I think it's wonderful. I am just very grateful that the state has recognized the equality of all people."
[...]
http://www.huffingtonpost.com/2013/10/23/tom-pivinski-gay-interfaith-marriage_n_4149508.html [with embedded video report, and comments]
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Christian Couple’s Tip For ‘Excellent’ Waiter: ‘Queers Do Not Share In The Wealth Of GOD’
October 25, 2013
[...]
“Thank you for your service, it was excellent. That being said, we cannot in good conscience tip you, for your homosexual lifestyle is an affront to GOD. Queers do not share in the wealth of GOD, and you will not share in ours. We hope you will see the tip your fag choices made you lose out on, and plan accordingly. It is never too late for GOD’S love, but none shall be spared for fags. May GOD have mercy on you.”
[...]
http://thenewcivilrightsmovement.com/christian-couples-tip-for-excellent-waiter-queers-do-not-share-in-the-wealth-of-god/discrimination/2013/10/25/77413 [with embedded video report, and comments]
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Justice Scalia Is More Conservative Than You Think, And Further To The Right Than He’s Ever Been
By Ian Millhiser
October 7, 2013 at 11:58 am
A lot of headlines can be found in Jennifer Senior’s remarkable interview with Justice Antonin Scalia [ http://nymag.com/news/features/antonin-scalia-2013-10/ (first item this post)] — the fact that Scalia almost exclusively reads conservative media, his belief in the Devil, his squeamishness about the fact that Hollywood depicts “ladies” saying the “F-word.” The interview paints Scalia as an anachronism even among anachronisms. He’s Archie Bunker in a less comfy chair.
Indeed, the justice provides so much candy for headline writers eager to drive up their website’s traffic, that it is easy to miss what is probably the most significant part of the interview — he repudiates his own moderation from a quarter a century ago.
Two years after joining the Supreme Court, Scalia delivered a lecture entitled “Originalism: The Lesser Evil” where he laid out much of his philosophy of how judges should decide cases. Words have meaning, Scalia correctly asserted, and the words of the Constitution must be read as they would have been understood at the time they were enacted. This way, Scalia assured, unelected judges will not overstep their proper role in a democracy. Even if the Constitution were intended to allow the law to evolve with society’s values, Scalia saw “no basis for believing that supervision of the evolution would have been committed to the courts.” Scalia’s textualism, and his belief that a text’s meaning is fixed in time, were both grounded in notions of judicial restraint. If judges can change the meaning of the Constitution, their power is truly limitless.
Scalia’s own relationship with this judicial philosophy, however, is quite fraught. As Yale’s Jack Balkin [ http://digitalcommons.law.yale.edu/fss_papers/26/ ] and others have demonstrated, for example, there’s little support in the Constitution’s text or its original history for the idea that the federal government cannot regulate nationwide economic markets. And there’s strong [ http://www.americanprogress.org/wp-content/uploads/issues/2012/03/pdf/aca_clement.pdf ] originalist evidence [ http://aca-litigation.wikispaces.com/file/view/State+legislators+amicus+%2804.08.11%29.pdf ] supporting the constitutionality of the Affordable Care Act. Yet Scalia rejected this evidence to join an angry dissent [ http://thinkprogress.org/justice/2012/06/29/508522/dissenting-opinion-analysis-justice-kennedy-abandons-all-pretensions-of-being-a-moderate/ ] labeling Obamacare unconstitutional.
Moreover, as Scalia conceded in his 1988 lecture, it is not always easy to determine what the framing generation though a particular constitutional provision meant. And even when it is possible to read the minds of the founding generation, such cross-generational telepathy often reveals that the framers didn’t know the answer either. James Madison and Alexander Hamilton were very much at odds over the scope of federal power under the Constitution [ http://www.americanprogress.org/issues/civil-liberties/report/2011/05/27/9610/the-fake-james-madison/ ], even though they both men were present while the document was being drafted. Justice Scalia’s pro-gun opinion in District of Columbia v. Heller relies heavily on constitutional history [ http://www.law.cornell.edu/supct/html/07-290.ZO.html ] to expand the scope of the Second Amendment, but so does Justice Stevens’ dissent [ http://www.law.cornell.edu/supct/html/07-290.ZD.html ]. It’s easy to read Scalia’s Heller opinion (and, to be fair, the Stevens dissent) and conclude that its author started with the result he wanted, and then trolled through uncertain historical sources in order to find the ones that supported his view.
So, while the younger Scalia presented reliance on the Constitution’s original history as a cure to judges imposing their views on the American people, that’s not how Scalia’s originalism has actually worked in practice. In practice, he’s been more than capable of selecting the history he likes best — and even ignoring constitutional history that goes against his preferred result.
Yet, while Scalia’s desire to shape the law often exceed his principles, his “Lesser Evil” lecture did offer one sop to liberals afraid that he would comb through early American history, uncover abhorrent practices and then stamp the Court’s blessing upon them. Labeling himself a “faint-hearted originalist,” Scalia confesses that “I cannot imagine myself, any more than any other federal judge, upholding a statute that imposes the punishment of flogging.” There are some injustices that the younger Scalia would intervene to prevent, even if those injustices existed at the framing.
This is the part of the “Lesser Evil” lecture that Scalia abandons in his interview with Ms. Senior. When asked “how fainthearted” he truly is, Scalia responds “I described myself as that a long time ago. I repudiate that.” And lest there be any doubt, that means he would permit flogging — “what I would say now is, yes, if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional.”
This repudiation is not entirely surprising — while Scalia has not upheld flogging, he did join a dissent siding with three prison guards who handcuffed a prisoner to a hitching post in the hot sun and denied him water [ http://thinkprogress.org/justice/2013/04/17/1878001/sentencing-commission-nominee-supported-handcuffing-prisoners-to-hitching-posts-under-hot-sun/ ]. Nevertheless, his explicit willingness to sanction injustices he would have halted as a younger man provides reveals a great deal about his approach to the law in his later years.
When the lawsuits challenging the Affordable Care Act had just been filed, many legal observers mocked them as unlikely to prevail because Scalia authored an opinion in 2005 that left little doubt that the law was constitutional [ http://www.americanprogress.org/issues/civil-liberties/news/2012/03/07/11260/not-even-close/ ]. If even Scalia’s opinions supported a progressive law, how could any judge — or at least, any judge acting in good faith — deem the law unconstitutional? Scalia’s repudiation of his 1988 statement may reveal why so many attorneys were wrong to look to his past opinions and expect them to guide him in the future. In the winter of his years on the Court, Scalia looks back upon his past moderation and regrets it. It follows that his own more moderate opinions are no longer reliable predictors of Scalia’s current views.
This lurch to the right should scare liberals even more than Scalia already does. And it is not yet clear if anything remains of Scalia’s prior claims to judicial restraint. Indeed, during oral arguments on the Voting Rights Act case, Scalia not only labeled the landmark law a “perpetuation of racial entitlement,” he claimed for himself a sweeping power to correct what he viewed as a failure of the democratic process. The Scalia who once spoke eloquently about the limited role of a judge in a democracy is dead, replaced by a more activist Scalia who is far more willing to question the will of the people than his younger self.
© 2013 Center for American Progress Action Fund
http://thinkprogress.org/justice/2013/10/07/2740661/scalia-worse-than-you-think/ [with comments]
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Santorum: Satan Controls The Film Industry
Submitted by Brian Tashman on Thursday, 10/24/2013 4:15 pm
Rick Santorum is asking you to do your part to free movie theatres from the Devil’s clutches by purchasing tickets to his upcoming movie, The Christmas Candle. He appeared on the Trinity Broadcasting Network last week to plug the new movie of his film company EchoLight Studios, which apparently is in a state of internal strife [ http://blogs.dallasobserver.com/unfairpark/2013/10/theres_a_civil_war_at_rick_san.php ] after his arrival as CEO.
While speaking on a network where televangelists on a daily basis tell viewers that God will reward them financially if they send in contributions, the former senator and presidential candidate spent most of the time criticizing movies for being too materialistic.
Santorum, who has previously said that Satan has control over mainline Protestantism and universities [ http://www.rightwingwatch.org/content/santorum-satan-systematically-destroying-america ], thanked viewers in advance for seeing the movie.
“This is a tough business, this is something that we’re stepping out,” Santorum said, “and the Devil for a long, long time has had this, these screens, for his playground and he isn’t going to give it up easily.”
Watch [ http://www.youtube.com/watch?v=R63yutg7cjo (next below, as embedded)]:
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Santorum: GOP Support For Gay Marriage Will Be 'The Destruction Of Our Republic'
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© 2013 People For the American Way
http://www.rightwingwatch.org/content/santorum-satan-controls-film-industry
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Rick Santorum Becomes CEO of Faith-Based Film Studio
The former GOP presidential hopeful has raised millions of dollars to make faith-based, uplifting movies in the mode of "Soul Surfer," except that they won't "water down the truth."
6/24/2013
[...]
Santorum said Monday he has become CEO of EchoLight Studios, and the Texas-based firm is weeks away from closing a $20 million film fund that it will use to finance, produce and distribute faith-based and family-friendly movies.
[...]
The former senator from Pennsylvania says most of the investors in EchoLight and its film slate – which will consist of up to four movies annually – are wealthy Texans who are novices in film but are supportive of the message-movies EchoLight intends to make.
“Here’s what I think of Hollywood,” Santorum told The Hollywood Reporter. “We’re looking for talented people who want to make quality films, even though we won’t be spending tens of millions of dollars on each of them. We want good writers, actors and producers who want to make honest, uplifting content.”
EchoLight’s first film, due this year, is The Redemption of Henry Myers, a western about a left-for-dead bank robber who is nursed back to health by a widow and her young children (a trailer [ http://www.youtube.com/watch?v=igTO-GYHc-M ] is [next] below).
Also in the pipeline is a modern-day telling of the Biblical story of Joseph and his coat of many colors. It's a dramatic take, as opposed to the popular Andrew Lloyd Webber musical, Joseph and the Amazing Technicolor Dreamcoat.
[...]
http://www.hollywoodreporter.com/news/rick-santorum-becomes-ceo-faith-574199 [with comments]
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Rick Santorum Claims Recently Fired Executives Tried to 'Sabotage' the Film Studio He Runs
EchoLight Studios, where the former GOP presidential candidate is CEO, is suing company "co-founders" Bobby Downes and Christopher Morrow.
10/2/2013
Rick Santorum has had a rocky first three months on the job as CEO of EchoLight Studios, a faith-based movie studio the former senator was tapped to run in June.
Insiders tell The Hollywood Reporter that Santorum butted heads with Bobby Downes and Christopher Morrow, who have identified themselves as co-founders of the studio, so severely that he fired them both about a week ago. Then on Tuesday, EchoLight sued the two former executives claiming they were orchestrating "a campaign of sabotage."
The lawsuit even claims that Morrow threatened to "malign" Santorum in "an upcoming Hollywood Reporter article," according to Courthouse News Service [ http://www.courthousenews.com/2013/10/01/61640.htm ]. The Hollywood Reporter is unaware of the alleged effort from Morrow.
"Bobby Downes and Christopher Morrow have been terminated from EchoLight due to both cause and nonperformance," a spokeswoman for the studio confirmed on Tuesday.
Morrow was chief global strategist before his termination at EchoLight and Downes was president, and they both reported to Santorum, a former Republican presidential candidate who was helping to raise $20 million in investment capital for EchoLight when the studio hired him as CEO.
Insiders said the fundraising process was touch and go for a while, with some prospective investors pulling out and others replacing them, but EchoLight said Tuesday it had gathered the funds it set out to raise, though the spokeswoman declined to specify an exact amount of money.
[...]
http://www.hollywoodreporter.com/news/rick-santorum-claims-fired-executives-640252 [with comments]
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Santorum: Satan is Systematically Destroying America
Submitted by Kyle Mantyla on Thursday, 2/16/2012 5:12 pm
Back in 2008, Rick Santorum traveled to Ave Maria University in Florida [ http://old.avemaria.edu/news/156.html ] to deliver an address to students attending the Catholic university founded by Domino's Pizza founder Tom Monaghan [ http://www.washingtonmonthly.com/college_guide/feature/pie_in_the_sky.php?page=all ] which he moved from Michigan as part of his effort to build [ http://www.naplesnews.com/news/ave-maria/town-without-vote/ ] his own personal theocracy in Naples.
Santorum told the students [ http://www.rightwingwatch.org/content/santorum-hails-ave-maria%E2%80%99s-religious-warriors ] at Ave Maria how lucky they were to be living in a time when God's Army is more needed than ever because all of the major institutions in society were under attack by Satan.
The audio of Santorum's remarks is still posted [ http://www.avemaria.edu/NewsEvents/Podcasts.aspx ] on the Ave Maria website and the bulk of his speech was dedicated to explaining how God had used him, his political career, and even the death of his son Gabriel [ http://www.amazon.com/Letters-Gabriel-Karen-Garver-Santorum/dp/1568145284 ] in the fight to outlaw abortion in America.
But Santorum began his remarks by explaining to the students in attendance how every institution in America has been destroyed by Satan; from academia to politics with even the church having fallen under His sway - not the Catholic church, of course, but "mainline Protestantism" which is in such "shambles" that it is not even Christian any longer [ http://www.youtube.com/watch?v=n4jopm7hYFk (next below, as embedded)]:
This is not a political war at all. This is not a cultural war. This is a spiritual war. And the Father of Lies has his sights on what you would think the Father of Lies would have his sights on: a good, decent, powerful, influential country - the United States of America. If you were Satan, who would you attack in this day and age. There is no one else to go after other than the United States and that has been the case now for almost two hundred years, once America's preeminence was sown by our great Founding Fathers.
He didn't have much success in the early days. Our foundation was very strong, in fact, is very strong. But over time, that great, acidic quality of time corrodes even the strongest foundations. And Satan has done so by attacking the great institutions of America, using those great vices of pride, vanity, and sensuality as the root to attack all of the strong plants that has so deeply rooted in the American tradition.
He was successful. He attacks all of us and he attacks all of our institutions. The place where he was, in my mind, the most successful and first successful was in academia. He understood pride of smart people. He attacked them at their weakest, that they were, in fact, smarter than everybody else and could come up with something new and different. Pursue new truths, deny the existence of truth, play with it because they're smart. And so academia, a long time ago, fell.
And you say "what could be the impact of academia falling?" Well, I would have the argument that the other structures that I'm going to talk about here had root of their destruction because of academia. Because what academia does is educate the elites in our society, educates the leaders in our society, particularly at the college level. And they were the first to fall.
And so what we saw this domino effect, once the colleges fell and those who were being education in our institutions, the next was the church. Now you’d say, ‘wait, the Catholic Church’? No. We all know that this country was founded on a Judeo-Christian ethic but the Judeo-Christian ethic was a Protestant Judeo-Christian ethic, sure the Catholics had some influence, but this was a Protestant country and the Protestant ethic, mainstream, mainline Protestantism, and of course we look at the shape of mainline Protestantism in this country and it is in shambles, it is gone from the world of Christianity as I see it. So they attacked mainline Protestantism, they attacked the Church, and what better way to go after smart people who also believe they’re pious to use both vanity and pride to also go after the Church.
After that, you start destroying the Church and you start destroying academia, the culture is where their next success was and I need not even go into the state of the popular culture today. Whether its sensuality of vanity of the famous in America, they are peacocks on display and they have taken their poor behavior and made it fashionable. The corruption of culture, the corruption of manners, the corruption of decency is now on display whether it’s the NBA or whether it’s a rock concert or whether it’s on a movie set.
The fourth, and this was harder, now I know you’re going to challenge me on this one, but politics and government was the next to fall. You say, ‘you would think they would be the first to fall, as fallible as we are in politics,’ but people in political life get elected by ordinary folks from lots of places all over the country where the foundations of this country are still strong. So while we may certainly have had examples, the body politic held up fairly well up until the last couple of decades, but it is falling too.
© 2012 People For the American Way
http://www.rightwingwatch.org/content/santorum-satan-systematically-destroying-america
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Santorum Says Satan Controls Hollywood
Lisa Derrick
Friday October 25, 2013 11:20 am
Rick Santorum spat a frothy mouthful [ http://www.youtube.com/watch?v=R63yutg7cjo (above, as embedded)] on the Trinity Broadcasting Network, plugging his first foray into film production, The Christmas Candle [ http://www.thechristmascandlemovie.com/ ], due out this holiday season. The movie, from EchoLight Studio, is a period piece set in a Thomas Kinkade-esque village and tackles modernity vs (Christian) tradition as electricity and progressive thinking threaten the town’s visit from a Christmas angel. Now the CEO of EchoLight, Santorum said, seeming a little uncomfortable [ http://www.rightwingwatch.org/content/santorum-satan-controls-film-industry (the first of these Santorum items above; this item also here cuz I like it)]:
This is a tough business, this is something that we’re stepping out, and the Devil for a long, long time has had this, these screens, for his playground and he isn’t going to give it up easily.
Shifty eyes much?
I’m not going to go into Santorum’s (il)logic about Satan controlling Hollywood which at some point will end up in a grand conspiracy, but ye gods and little fishes, if Satan controls the film business, why did the self-proclaimed White Witch of Los Angeles [ http://godismyboyfriend.com/ ] give a lecture [ http://www.youtube.com/watch?v=LMwcYPK4oWI (next below)]
about the film industry and how it controls the mind? Inconceivable!
And speaking of inconceivable, Santorum’s position on Satan in the film biz puts him at odds with fellow conservative Sen Ted Cruz who admitted [ http://www.desmoinesregister.com/article/20131024/NEWS09/310240112/Ted-Cruz-Q-senator-s-private-side ] that in addition to playing video games (also a tool of Satan [ http://proofsofaconspiracy.wordpress.com/2011/06/26/satanicilluminatioccult-imagery-extends-to-video-games/ ]):
I’m a huge movie buff. Love watching movies. So we’ll often go and watch a movie.
Cruz’s favorite movie? The Princess Bride which has a wizard bringing Westley back to life. Blasphemy!! Clearly Ted Cruz is thus a tool of Satan, which makes his opposition to the current administration a Satanic plot. But wait, conservatives think Obama is Satan, or at least the Anti-Christ…
Screw it, I’m gonna go watch an MK-Ultra produced, Illuminati/Satan mind control movie. Like Chitty Chitty Bang Bang [ http://mindcontrol101.blogspot.com/2010/02/pops-illuminati-top-10.html ] or Fantasia.
Copyright 2013 Firedoglake
http://lafiga.firedoglake.com/2013/10/25/santorum-says-satan-controls-hollywood/ [with comments]
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Does Justice Scalia Really Believe He's on the 'Losing Side of Everything'?
Reuters
By comparing himself with a New Deal obstructionist, the conservative judge raises questions about the Court's future—and his own legacy.
Andrew Cohen
Oct 9 2013, 9:32 AM ET
One of the many underreported facets of Jennifer Senior's fantastic New York Magazine interview [ http://nymag.com/news/features/antonin-scalia-2013-10/ (first item this post)] with United States Supreme Court Justice Antonin Scalia was his reference to Justice George Sutherland [ http://www.oyez.org/justices/george_sutherland ], the late, great conservative jurist best known for obstructing [ http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1946929 ] the New Deal. When Senior asked Justice Scalia near the end of their long, colorful riff, "Which decisions in your tenure do you think will be heroic?" he responded:
Oh, my goodness. I have no idea. You know, for all I know, 50 years from now I may be the Justice Sutherland of the late-twentieth and early-21st century, who's regarded as: "He was on the losing side of everything, an old fogey, the old view." And I don't care.
Sutherland, born in England, was a Mormon and a Republican who served in the House of Representatives before he was tapped for the Court by President Warren Harding. Along with fellow conservatives James Clark McReynolds [ http://www.pbs.org/wnet/supremecourt/capitalism/robes_mcreynolds.html ], Willis Van Devanter [ http://www.supremecourthistory.org/history-of-the-court/associate-justices/willis-van-devanter-1911-1937/ ], and Pierce Butler [ http://www.supremecourthistory.org/history-of-the-court/associate-justices/pierce-butler-1923-1939/ ], Sutherland struck down one major New Deal piece of legislation after another. In 1935, the Farm Bankruptcy Act [ http://supreme.justia.com/cases/federal/us/295/555/ ] fell. So did the Coal Conservation Act [ http://www.law.cornell.edu/supct/html/historics/USSC_CR_0298_0238_ZS.html ]. And the National Industrial Recovery Act [ http://www.law.cornell.edu/supct/html/historics/USSC_CR_0295_0495_ZS.html ]. In 1936, the Agricultural Adjustment Act [ http://www.law.cornell.edu/supct/html/historics/USSC_CR_0297_0001_ZS.html ] fell. It was these cases that prompted President Roosevelt to push his ill-conceived court-packing plan [ http://books.google.com/books/about/The_168_days.html?id=J_YdAAAAIAAJ ].
A conservative justice who joins with his fellow travelers in a yeoman effort to stop a Democratic president from implementing vital new reforms? It's no wonder that Justice Scalia cited Sutherland, right? Right. Except that Justice Sutherland in practice was far less conservative than is Justice Scalia. And Justice Scalia's perception/prediction that he may be "on the losing side of everything" is belied (so far anyway) by the fact that he and his fellow Republicans on the Court have presided over a monumental restoration of conservative jurisprudence.
Let's take Justice Sutherland first. Like millions of other conservatives, he hated what the New Deal stood for and did what he could to stop it. But he was not a hard-edged warrior. For example, it was Justice Sutherland, in 1932, who wrote the opinion in Powell v. Alabama [ http://www.law.cornell.edu/supct/html/historics/USSC_CR_0287_0045_ZS.html ], a decision that stills stands for the proposition that a criminal defendant cannot get a fair trial without assistance of counsel. It was Powell the Court cited in 1963 in Gideon v. Wainwright [ http://www.law.cornell.edu/supct/html/historics/USSC_CR_0372_0335_ZS.html ], the right to counsel case that has helped millions of Americans in the past 50 years get something resembling a fair shake in court.
Moreover, there is strong evidence that Justice Sutherland as an elected official before he reached the Court was remarkably progressive. From "The Secret Lives of the Four Horsemen [ http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1946929 ]," a 2011 law review article by Barry Cushman:
We discover that Sutherland's legislative career saw him support the eight-hour day, the Employers' Liability Act, the Pure Food and Drugs Act, the Hepburn Rate Bill, the Children's Bureau, the Seaman's Act of 1915, Postal Savings Banks, free coinage of silver, and the1896 presidential candidacy of the populist William Jennings Bryan. We even find Sutherland in the vanguard of the struggle for women's suffrage and a system of workmen's compensation for the employees of interstate carriers.
Now, Justice Scalia never held elected office so we will never know whether he would have supported progressive causes like these as a legislator. My guess, which is as good as your guess, is that he would not. We can, each of us, make this guess because we have a quarter of a century of Court opinions to sift through, as well as Justice Scalia's record as a lower appellate judge and executive branch official, all of which tell us that the jurisprudence of Justice Scalia has rarely favored women, or workers, or laws like the Affordable Care Act that seek to help the poor.
Indeed, Justice Scalia has been largely responsible for one conservative victory after another since joining the Court in 1986. He has helped restrict voting rights. He has restricted the rights of workers and employees and unions. He has limited the ability of plaintiffs to seek redress in court. He has helped make it more difficult for criminal defendants to seek and gain justice. He has opened the floodgates for money to pour into political campaigns. He has endorsed grand executive branch power.
On and on the litany of conservative achievement goes--with no end in sight. So does the justice truly believe that "his side" is losing or that, within the next 50 years, it will lose the constitutional battles it now is winning? Does he truly believe that the advance of gay rights--arguably the most significant setback he has seen since coming to the Court--trumps all the other areas of the law in which conservatism is ascendant? Was he merely being self-deprecating in citing Sutherland? Does he feel the need for future vindication even though the present sure looks to be treating him right?
Jeff Shesol, the author and historian who wrote Supreme Power[ http://www.npr.org/2010/03/31/125321024/fdr-vs-the-court-an-epic-power-struggle-relived ], the definitive modern book about Roosevelt and the Court, told me Monday that Justice McReynolds may have gotten all the heat 75 years ago but that it was Justice Sutherland who was the "intellectual architect" of the conservative fight against the New Deal. Maybe that's what Justice Scalia has in mind. Maybe he wants history to remember him as the "intellectual architect" of the modern fight against progressivism. That history, like all history, will be written by the winners. And I'm genuinely surprised that Justice Scalia is bracing himself for the possibility that his side in the fight won't be writing it.
Copyright © 2013 by The Atlantic Monthly Group
http://www.theatlantic.com/national/archive/2013/10/does-justice-scalia-really-believe-hes-on-the-losing-side-of-everything/280426/ [with comments]
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Herman Cain Has Found The Real Groper, And It Is ‘The Devil’
by Rebecca Schoenkopf
12:35 pm October 23, 2013
Herman Cain has spent the past two years trying to clear his name of wrongful accusations that he groped that lady, and the other lady, and that third chick, and we think two other ones as well it is hard to keep straight! That is, he has been working to clear his name for the past two years except for the part where he has done anything to try to clear his name. This is because when one is accused [ http://wonkette.com/477439/lady-who-sexed-herman-cain-for-13-years-types-about-that ] of sexxxxytime shenanigans and quid pro ew behaviors, it is important to stand and fight them in a timely manner, unless you don’t really have anything to back you up.
But Herman Cain does! He has “evidence [ http://www.realclearreligion.org/articles/2013/10/23/the_devil_and_herman_cain.htm ]”! And that “evidence” leads him to state unequivocally that he has found the real groper, and that groper is The Devil, squeezing and frottaging all up in those women’s brains until they all levitated from their beds and fingered Goody Cain (gross) for a witch! A sexxxxy witch! Let’s sexplore!
Cain said if he challenged the allegations at the time, “it would have been a huge distraction.” A presidential campaign “is like drinking from a fire hydrant” and so is a bad time to give a considered response scandalous allegations of that nature.
Yes, you definitely want to wait until a year after the campaign is over in which you are running for president to clear your name, because clearing your name in the middle of the campaign in which you are running for president would absolutely be a “distraction.” At least, it would be a “distraction” from the totally untrue allegations anyway.
The first charges that were reported, by a still-anonymous woman, “went to the [Equal Employment Opportunity Commission] and were dismissed,” Cain said.
Hmmm, we are not seeing anything on the Internet about that, not even at, like, ConservativeBlackPeopleOrAtLeastOneConservativeBlackGuyButWhatever.com. But we do know his job ponied up $80 thousand [ http://www.slate.com/articles/news_and_politics/explainer/2011/11/herman_cain_settlement_what_s_the_going_rate_for_sexual_harassment_claims_.html ] to two women who did not seem so much to enjoy working for him, because of the groping. So there is that?
Celebrity attorney Gloria Allred held a press conference for her client, Sharon Bialek, who accused Cain of groping her over a decade ago. During that presser, Allred waved around alleged affidavits that she said corroborated her client’s story. Cain said that no one has even seen Allred’s affidavits.
That seemed a stretch — an attorney waiving affidavits around at a press conference and reporters not insisting on verifying those documents. But after some digging, nothing. A search for it on the Smoking Gun website reveals a big goose egg, for instance.
Oh, wait, so the media is the real sexual harasser, for not asking to see Bialek’s affidavits about how Herman Cain grabbed her junk and asked her “you want a job, right?” Well, that is just Science Fact. We are looking at you, Richard Cohen [ http://wonkette.com/427960/richard-cohen-loves-sexual-harassment ]. And Bill O’Reilly [ http://www.thesmokinggun.com/documents/funny/oreilly-hit-sex-harass-suit ]. And fuck, the media really is the real groper!
As for the third woman, Ginger White, who accused Cain of an affair, Cain said she was in court for libel at the same time he ended his campaign. “She ultimately was found guilty and was assessed a judgment,” he told me with a good helping of contempt for the media for under-reporting it.
Ginger White did not show up to court, and a default judgment was ordered. You know what our mama always says: DO NOT fail to appear [ http://wonkette.com/514587/raise-less-corn-more-hell-2 ]!
Then he speculated as to who may have orchestrated the allegations: the Devil.
“It made me realize that there was a force bigger than right,” Cain said.
Well, we are convinced. Case closed, everybody! We look forward to Cain’s sexual harassment lawsuit, Herman Cain v. Beelzebub. Those depositions are going to be fuckin’ amazing.
©2013 Wonkette Media LLC (emphasis in original)
http://wonkette.com/532363/herman-cain-has-found-the-real-groper-and-it-is-the-devil [with comments]
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Herman Cain Blames The Devil For His Sexual Harassment Charges!
Posted by: Barbara Friedland
October 25, 2013
One time Godfather’s Pizza CEO and GOP candidate for President contends that the Devil was behind the sexual harassment charges that imploded his campaign. He also believes that those stories were the only impediment between him and the White House.
Where to begin?
Cain enjoyed being front-runner for a few weeks, as did every other crazy candidate vying for the Republican nomination. The GOP had to make it very clear to Mitt Romney that the majority neither liked nor trusted him so they made him work very very hard.
Also, if Cain believed he had any chance to be the Republican candidate then he clearly has not watched any interview he ever gave.
He basically had no idea about anything or just parroted 999.
(Maybe he was summoning Satan in code.)
But back the sexual harassment stories. Cain castigated the media for not doing their due diligence.
The egomaniacal belief that the devil would arise to prevent Cain from being elected President is beyond frightening.
He was a guy with a book, did some motivational speaking and wanted to juice up sales.
If he seriously wanted to be President, Cain would have actually studied the issues. Or a map.
Folks can laugh that the clownish Cain has made his sordid groping a matter of good versus the devil.
But he is right about one thing. The media did not vet him properly.
Or they would have written about his role as the head of the National Restaurant Association and his tireless efforts to keep the sub minimum wage in place for restaurant workers.
Now that’s a sin.
According to RealClearReligion [ http://www.realclearreligion.org/articles/2013/10/23/the_devil_and_herman_cain.html ]:
“It made me realize that there was a force bigger than right,” Cain said.
But that doesn’t mean Cain has given up. Nowadays, Cain fights against the Evil One from the pulpit. Cain has been a member of the same Baptist church in Atlanta — “a church in the hood” — since he was 10, where he now serves as an associate pastor.
Cain preaches that the Devil is “determined to destroy our culture” and that “the family is at the center of our culture and the center of the family is its religious beliefs.”
A recent sermon of his is entitled: “Don’t Give Up, Get Up!” He told the congregation that there are three ways to battle “give-up-itis. You get down on your knees and pray, you write down your blessings, and you turn down the noise in your life.” The noise in Cain’s life is considerably softer than it was two years ago, but he hasn’t called it in just yet.
Americans Against the Tea Party © Copyright 2013
http://aattp.org/herman-cain-blames-devil-sexual-harassment-charges/ [with comments]
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A Tree Grows in Canada
By LINDA GREENHOUSE
Published: October 16, 2013
This Friday is Persons Day in Canada, a special day on the country’s calendar that commemorates, of all things, a judicial decision. It was on Oct. 18, 1929, that the Privy Council, a court in London that served then as the highest appeals court for Canada, declared women to come within the definition of “persons” in Canada’s basic law, thus qualifying them for appointment to the national Senate. It was, Beverley McLachlin, the chief justice of Canada, said in a speech earlier this year, “the beginning of a rights revolution that would transform Canadian society.”
I’ve wanted to write about Persons Day and the intriguing Persons Case that it celebrates ever since I first heard about it years ago at a conference of Canadian lawyers. Every time Persons Day came around, however, something more pressing, or at least seemingly more directly relevant to the American legal scene, seemed to intervene. But this time, I’ll argue here, the Persons Case couldn’t be more germane to the current constitutional conversation on this side of the border. In fact, for reasons I’ll explain, if the Persons Case didn’t exist, those of us who believe in progressive constitutional interpretation might have to invent it.
First, a bit of history. The British North America Act, a law from 1867 that served as Canada’s constitution, provided for the appointment of “qualified persons” to the Senate. In the 1920s, with a growing feminist spirit abroad in the land, women had the temerity to assume that “qualified persons” might include them. When Emily Murphy, a leading feminist who was a judge in Alberta, sought an appointment, the prime minister turned her down on the ground that women were not “persons” within the meaning of the law.
Judge Murphy and four other Alberta women, who were to become known as the Famous Five, formally petitioned the federal government, which then put a question to the Supreme Court of Canada: “Does the word ‘Persons’ in Section 24 of the British North America Act include female persons?”
The Supreme Court said no, on grounds that would warm the heart of some current members of the United States Supreme Court. Whether it would be desirable for women to be eligible for senatorial appointment was beside the point, Chief Justice Frank Anglin wrote in his opinion. What mattered was what the drafters of the 1867 statute intended, and the words they wrote had to “bear today the same construction which the courts would, if then required to pass upon them, have given to them when they were first enacted.”
The five women then appealed to the Judicial Committee of the Privy Council in London, which as a vestige of empire served until 1949 as Canada’s court of last result. There the outcome was different. A newly appointed Lord Chancellor, John Sankey, rejected the originalist approach. It was wrong, he wrote in the 1929 decision, “to apply rigidly to Canada of today the decisions and the reasons therefor which commended themselves, probably rightly, to those who had to apply the law in different circumstances, in different centuries, to countries in different stages of development.” Driving the point home, Lord Sankey went on to say: “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.” Women, the court concluded, were indeed persons. Soon enough, they were senators as well.
The “living tree” metaphor languished, underappreciated, for years until 1982, when Canada adopted its modern constitution, the Charter of Rights and Freedoms, and Canadian judges needed an interpretive methodology. The living tree was there, waiting to be rediscovered and tended. Along the way, the Famous Five women came to be celebrated. Their larger-than-life statues adorn the grounds of Parliament in Ottawa, and for a few years early in the new century, their faces appeared on Canada’s $50 bill. Annual prizes are awarded in their names. As for the living tree, it’s simply taken for granted, part of Canada’s constitutional DNA. Although the original understanding of the 31-year-old Charter’s framers wouldn’t be hard to reconstruct, no one bothers. It’s beside the point.
I thought of the Persons Case the other day as I read Justice Antonin Scalia’s head-spinning interview [ http://nymag.com/news/features/antonin-scalia-2013-10/ (first item this post)] in New York magazine. No doubt many readers of this engrossing document, which printed out at 15 pages, couldn’t get beyond Justice Scalia’s comments about the wily ways of the Devil. I was equally struck by this colloquy between the justice and his interviewer, Jennifer Senior:
Question: You’ve described yourself as a fainthearted originalist. But really, how fainthearted?
Answer: I described myself as that a long time ago. I repudiate that.
Question: So you’re a stouthearted one.
Answer: I try to be. I try to be an honest originalist! I will take the bitter with the sweet! What I used “fainthearted” in reference to was –
Question: Flogging, right?
Answer: Flogging. And what I would say now is, yes, if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional.
For years, Justice Scalia liked to amuse himself and startle listeners by proclaiming that his Constitution wasn’t living, but “dead.” I heard this myself on several occasions. Recently, he’s softened his tone a bit [ http://frontburner.dmagazine.com/2013/01/31/bryan-garner-is-not-happy-with-the-dallas-morning-news/ ] to explain that by “dead” he doesn’t mean expired but rather “enduring” as opposed to “morphing” or “changing.” No matter. If Justice Scalia’s Constitution was a tree, it would be part of a petrified forest.
Justice Scalia’s mantra is so tired by now that only Justice Anthony M. Kennedy seems willing to offer much in the way of an off-the-bench response. “You have to recognize that if the framers knew all the specifics of a just society, they would have written them down,” Justice Kennedy told Jess Bravin of The Wall Street Journal in an appearance earlier this month at the University of California’s Washington Center. The Constitution’s framers, the justice said, “used words that appeal over time to our sense of justice and our sense of freedom.”
On the bench, of course, the two clashed recently over the meaning of equality in the context of the Defense of Marriage Act. Justice Kennedy wrote the court’s majority opinion in United States v. Windsor [ http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf ], declaring DOMA unconstitutional, while Justice Scalia wrote a stinging dissent. But a day earlier, the two were on the same side, voting with the 5-to-4 majority in Shelby County v. Holder [ http://cms.em.nytimes.com/content/edit/article/ ] to gut the Voting Rights Act of 1965.
The two decisions make a fascinating pair when viewed through the lens of the originalism debate. The point is that neither was originalist. As for the DOMA decision, “it does not take a constitutional historian to appreciate that the specific original meaning of due process/liberty and equal protection in both 1791 and 1868 do not support constitutional protection against sexual orientation discrimination in marriage laws, state or federal,” Professor Dawn Johnsen of Indiana University’s Maurer School of Law wrote in an essay [ http://www.acslaw.org/sites/default/files/Johnsen_-_Demise_of_Originalism.pdf ] published this month by the American Constitution Society [ http://www.acslaw.org/about ; http://www.acslaw.org/ ] (of which she and I are both national board members). The dates refer to the adoption of the Fifth and 14th Amendments.
And the Voting Rights Act decision, as Professor Johnsen goes on to point out, was likewise the opposite of originalist, rejecting the court’s longstanding deference to the role of Congress in enforcing the 15th Amendment’s guarantee of the right to vote. The conjunction of these two decisions was enough to make Professor Johnsen wonder (happily, I should note) whether we might be seeing, as she suggests in her essay’s title, “The Demise of Originalism.”
Will Justice Scalia’s personal petrified forest ever come to life? Clearly, for him, the answer is no. But on Persons Day 2013, it’s worth celebrating the fact that the constitutional tree is still alive on this side of the border, at least for now.
© 2013 The New York Times Company
http://www.nytimes.com/2013/10/17/opinion/greenhouse-a-tree-grows-in-canada.html [ http://www.nytimes.com/2013/10/17/opinion/greenhouse-a-tree-grows-in-canada.html?pagewanted=all ] [with comments]
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Greensburg, KS - 5/4/07
"Eternal vigilance is the price of Liberty."
from John Philpot Curran, Speech
upon the Right of Election, 1790
F6
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