Judicial misconduct Dep’t

Q. What’s the difference between Anton Scalia and a standard-issue GOP hack?

A. Difference?

I’m not that old, but I remember a time when Supreme Court justices did not make partisan campaign speeches from the Bench.

Perhaps if Justice Scalia stopped hyperventilating, he might be able to observe the rules of logic. If the ability “to exclude unwanted persons and things from the territory,” is “an inherent attribute of sovereignty, and if the states are sovereign in that sense, why can’t a state exclude homosexuals, or Jews, or Catholics, or Republicans?

I’m with Joe Gandelman: time for Scalia to get his own show on Fox News and allow someone with a modicum of judicial temperament to do the judging.



Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

18 thoughts on “Judicial misconduct Dep’t”

  1. Because “not legally here” is not a suspect class, no matter how many people wish it was? And the 14th amendment protects the rights of “the people”, of whom illegal aliens are not members? But homosexuals, Jews, Catholics, and Republicans are, if they happen to be US citizens or legal resident aliens.

    1. False.

      The Second Amendment mentions “the people.” The Fourteenth Amendment mentions “persons,” a category which includes all human beings (plus, under rulings of from the First Gilded Age, corporations). No state may “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

      I agree that Republicans are a suspect class; I suspect them of conspiring to subvert the Republic.

    2. It should be obvious by now to the experienced denizen of these comment threads that checking the source material is strongly advised when Brett makes a claim of this sort. For instance, the word “people” (let alone “the people”) does not appear in the 14th Amendment. The relevant clause is, I take it, the Equal Protection Clause, which appears in Section 1:

      Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

      You will note that the equal protection guarantee there – the part that “protects the rights” as Brett put it – says “any person within its jurisdiction”. It doesn’t say “any citizen”, a term this same section has just clarified; it says “any person”. In other words, Brett’s claim is nonsense, which should relieve anyone who for a moment took seriously his claim that it would be perfectly legal to round up all the non-citizen Jews, etcetera.

      1. (And clearly I take too long to write a comment, as Mark pipped me there).

      2. This must be the epic-est of epic fails, coming, as it does, from self proclaimed constitutional fetishist and expert Brett Bellmore. I am sure it is only a coincidence that his presence is nowhere to be found in this thread after your comment was posted.

      3. So, did you actually notice the bit about “citizens of the United states”? The 14th amendment distinguishes between citizens and persons. All illegal immigrants are entitled to is due process in the manner of their expulsion, and the equal protection of the law for so long as it takes to bus them to the border.

        1. Did you notice “nor deny to any person within its jurisdiction the equal protection of the laws.”
          does the ‘any’ on ‘person’ fail to include people who are non-citizens?
          If it fails to include them, it would be Constitutional for the Federal govt ignore crimes committed against non-citizens. Equal protection there is a shallow cover in that interpretation.

        2. Brett, I’m sorry, but this is just too much. It’s a level of willful blindness or of dishonesty that degrades effort towards meaningful conversation as effectively as does vituperation or other personally abusive behavior. Taking it in turn:
          1) You said the 14th amendment protects “the people”. Those quotes were yours, and you placed great meaning on how “the people” was to be interpreted. This was flatly, blatantly untrue: the 14th amendment does not use these words.
          2) Furthermore to the previous point, the 14th amendment deliberately refers to “any person within its jurisdiction” when it had other options – it could, as you falsely claimed, have referred to the people of the United States, or it could have referred to “citizens”, a term it had just defined a sentence or two earlier. Instead, it was phrased to as to apply to “any person”. The significance of this decision is completely obvious.
          3) Each of the first two points were in my earlier comment, and refuted your earlier comment. In this comment, you have chosen to double down, and insist on the importance of the fact that I “notice the bit about ‘citizens of the United States'”, and that “the 14th amendment distinguishes between citizens and persons”. But as I’ve said above, this works precisely to the detriment of your claims, even if your claims weren’t prefaced on a falsehood about the term “the people” being used, and being used in a specific way. The 14th amendment does indeed help to clarify who is a citizen, which necessarily does distinguish between citizens and non-citizens – but the equal protection clause explicitly defends all persons, whether they be citizens or not.
          4) This is also true for the due-process clause. And non-citizens are entitled not merely to due process and to equal protection in the manner and during the time of their expulsion – they are also entitled to these prior to that time, when it is being decided whether they are to be expelled, and when they are simply walking down the street and a cop feels the urge to question their immigration status. To say that “all [they] are entitled to is due process in the manner of their expulsion” is like the old joke about how you’re entitled to a fair trial, followed by your execution. It is not merely incorrect but grossly offensive. As, sir, are you.

          1. Warren, if I wanted to be fair to Brett, I’d point out that, though he is obviously not stupid in any purely cognitive sense, he lacks both the training and the temperament to read legal texts for comprehension; and also that it’s at least arguable he is incapable of noticing when he descends, as he so often does, from his usual mere deliberate obtuseness into outright dishonesty.

            But no, I want to be extra specially fair to Brett. And so instead of all the above I’ll remind you that he is, if you will, the Holy Fool of the RBC. We value and love him not for what he contributes directly (we’d need to bill him for that), but rather for the useful contrast his adorable capers and grimaces provide to the way normal people think.

    3. Actually Brett, serious question: where did you get this cockamamie notion? And if you’re repeating something you’ve heard elsewhere, will discovering that this implausible claim could be trivially disproven inside three seconds with Google affect how you take claims made by this same source in the future? Will you tell them they’re full of it? Or did you just come up with it on your own?

  2. BTW, I happen to think the Court’s ruling in the Arizona case wrong, but not on policy grounds: The supremacy clause makes federal law, not policy supreme. If the federal government wants a policy to trump state law, it has to enact it into law.

    A policy of not enforcing a law can not be supreme, because it is not a “Law[] of the United States which shall be made in pursuance thereof”.

    1. I don’t claim to understand Bellmore Logic(tm) [1] entirely, but I think he just admitted that the PPACA mandate is constitutional.


      [1] A wholly-owned subsidiary of eristic (anti-)logic

  3. No, I admitted that the PPACA mandate is the sort of thing, (A law.) to which the Supremacy clause applies. Or would, if it were made in pursuance of the Constitution, which as a law which exercises a power not delegated, it is not.

    Whereas immigration policy, not being a law at all, can not be rendered supreme by the supremacy clause. OTOH, if Congress passed, and the President signed, a law which actually declared that anybody who entered the country was entitled to stay here, and be treated as the practical equivalent of a citizen, THAT would most assuredly be the sort of thing the supremacy clause was written to apply to, and Arizona wouldn’t have a leg to stand on.

    Alas, the Supreme court has ruled the contrary, that Presidential whims are as supreme as federal laws. I weep for the nation, this is not what is meant by a nation of laws, not men.

  4. But federal policies are made under the purview of federal laws. They’re not an orthogonal arm to law. So if federal law has supremacy over state law then federal policies pursuant to those laws would also be supreme. What am I missing?

    1. You are missing that when the administration policy is antithetical to the constitution and/or federal law, someone has broken his oath of office.

      Stick to your guns Brett. Apparently you are the only one around here who can read.

      1. You may have missed the part where he is “the only one around here who can read” words that are literally not present in the text. This is a very important distinction.

  5. Well, they used to, right, in the sense that southern hemisphere states (i.e. brown-skinned) had tighter restrictions. I’m forgetting when this policy was changed to reflect our evolving notions of racial equality. I’ll give Scalia the benefit of the doubt regarding his conscious thoughts, but to the extent that his is a right wing mind, I won’t disregard the possibility that unconscious biases are at work.

    Not only have they always existed, correlating with political dispositions, but are quite measurable, and predictive of rhetorical attitudes and irrational prejudices of political emphasis. I.e., I don’t like bananas as much as apples, so I’m going to take all my bananas out of the refrigerator and set them on fire on the lawn because they might spread toxic fumes into my flank steak. Or, more seriously, OMG illegals are infesting America, leeching off government, stealing and murdering Americans.

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