Posted 4 years, 1 month ago around lunchtime by oso

Trying, as always, to prove myself to be a moderate, I have found something that I agree with Justice Antonin Scalia on: “he thinks Americans ought to be having more orgies.”

The UK Guardian has the story.

[via Derek]

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1. 1Abogado from says:Monday, October 4th, 2004 at 4:56 pm
   

   Scalia is seriously the funniest justice on the court. Every time I read his opinions I get a laugh, then I shake my head and think, “what an ass!” I swear he writes some of those opinions specifically for law students. But I actually find myself agreeing with him quite often when the issues are not social. As for the orgy business, well, that’s just not a pretty picture.

2. 2Bobby from says:Monday, October 4th, 2004 at 5:20 pm
   

   Scalia actually came down on the left (and dissented) in Smith v. United States, saying that the definition of “use” a gun does not include using it to barter for drugs. Congress had passed a statute that allowed for a 30-year addition to a drug crime sentence when the offender was “using a firearm” in the process of the drug crime. In this case, the defendant “used” his gun to trade it for cocaine, the majority opinion said that was “using” the gun within the context of the statute, he was given an extra 30 years in prison. Scalia dissented, which seems to be a much more liberal position on the issue than I would expect. Incidentally, I agree with Scalia here. It doesn’t fit with the intent of the statute.

3. 3oso from says:Monday, October 4th, 2004 at 6:51 pm
   

   Bobby,

   According to your summary, I definitely agree with you and Scalia as well. But I don’t see what that decision has to do with left and right.

4. 4Bobby from says:Monday, October 4th, 2004 at 8:13 pm
   

   Typically the left is associated with being more willing to consider the circumstances surrounding a crime, as well as open to alternative forms of punishment (such as rehabilitation, counseling, etc). The right seems to be “harder” on crime, sticking it to drug criminals any way they can. Perhaps this is an erroneous claim, but it’s one that my professor made and he made it real well, much better than myself.

5. 5Abogado from says:Monday, October 4th, 2004 at 9:24 pm
   

   It’s not so much a distinction between left and right as it is between the formalist and realist approach of deciding cases. The formalists have a tendency to be associated with the right, but often you see them going both ways as the situation demands if they are true formalists and not just using it as an ex post facto pretext for making their pre-determined decisions. Realists are much more inclined to look at mitigating factors such as legislative “intent” or social policy or effect. Thus, they are associated with the left, but there are many examples where this type of association is erroneous.

   To say that bartering a gun for drugs constitutes “using” the gun is extremely formalist in that it will not look to obvious legislative intent which would imply that the gun was “used” threateningly or discharged - the purpose of a gun. Generally, such extremely formalistic arguments have lost sway with the courts but apparently there is still a bastion of formalism on the bench.

6. 6Abogado from says:Monday, October 4th, 2004 at 9:25 pm
   

   haha…”ex post facto pretext” - don’t think about that one too long.

7. 7Josh from says:Tuesday, October 5th, 2004 at 12:50 am
   

   in John Stewart’s new book he has a page of what the supreme court judges would look like without their clothes. it’s pretty funny/disgusting/brilliant/erotic. oops. i’ve said too much.

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