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Tuesday, October 08, 2013

Skipping the Post is Not a Big Deal

A couple of words, if I may, on the widespread, if totally ephemeral, criticism of Justice Scalia, occasioned by his statement in this week's New York Magazine interview* that he only takes the Wall Street Journal and the Washington Times, and gave up the Washington Post because it had become too "shrilly liberal." A fairly standard example, with one important exception, can be found here: http://takingnote.blogs.nytimes.com/2013/10/07/scalias-echo-chamber/?_r=0. Those words are: Big deal. Now let me expand slightly.

1) What should really upset us is not that Scalia gave up the Post, but that he reads the Washington Times, which is a transparently lousy newspaper.

2) He already reads the Journal, which, editorial pages aside, is neither especially conservative nor especially different in terms of the background or perspective of its reporters or editors. Perhaps the Justices would do us all a favor by picking a paper at random from the non-coastal United States and reading that every day.

3) The Post has gotten pretty thin in the past few (say, 15) years.

4) Of course the Post is liberal! I doubt shrill is an apt description, or that it's more shrilly liberal now than it was in the past, but obviously it's a liberal paper.

5) I do believe epistemic closure exists and afflicts some more than others. Perhaps it afflicts Scalia greatly. But if a liberal Justice said he or she read only the New York Times, the Washington Post, and the New Yorker, I doubt half as many people would be calling them epistemically shuttered for failing to pick up the Daily Caller (also lousy, incidentally) or the National Review. (Here, in fairness, is a note of difference between the standard-issue criticisms and Lapidos's piece in the Times: at least she calls out the President for purportedly only reading the New York Times.)

6) This all seems very American and parochial. Maybe the more important question is why all the Justices aren't reading Le Monde, Bild, El Pais, the Guardian, and the Times of London.

* I note that I don't especially think that he ought to have given the interview, or that Justice Ginsburg ought to have given the interview that occasioned headlines of its own this weekend.

Posted by Paul Horwitz on October 8, 2013 at 10:02 PM in Paul Horwitz | Permalink

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Comments

I often invoke Justice Scalia in my Constitutional Law II class for a two reasons. Primarily, he seems to me to be a relatively consistent justice: he likes private rights as against government intrusion, whether the private rights are those of corporations or criminal defendants (his anti-gay marriage stance notwithstanding). Secondarily, and arising from the primary reason, his consistency offers my students a glimpse into how the terms "conservative" and "liberal" don't often help them understand con law opinions (this works really well in Crim Pro I, when Scalia emerges as an anti-government champion). Kelo v. New London is a great example, with all my students, liberals and conservatives, rooting for the lightning rod-conservative dissenters, especially Justice Thomas. Maybe I'm outing my naivete, but that's how I bill Scalia to my students. It's a teaching moment to hopefully get them to think in legal/constitutional terms rather than political terms, which is the framework with which they come into my class.

Scalia's interview bothered me not because he doesn't read the Post--I only read a few news outlets regularly myself, as do most of my friends, and I think we're all pretty educated and open-minded. What bothered me about Scalia's interview was that he blithely dismissed any views other than his own. And he brings that to his decisions, apparently and strangely pandering to the tea party set. Whether you agree with his decisions or not, this shift to wackiness, not his conservatism, or even his conservatism-with-blinders, is concerning. Or am I off base here?

Posted by: Steven R. Morrison | Oct 8, 2013 11:06:56 PM

Steven - in my view, it's not true that AS's opinions, taken as a whole, "pander" to anyone. He does his thing (I bet the Tea Party does not know about Texas v Johnson). And, I don't think he is any more dismissive of others' views than is your selected-at-random AALS attendee or Slate reader.

Posted by: Rick Garnett | Oct 8, 2013 11:15:54 PM

My view is a little different from Rick's, and maybe something of an indirect way of answering your comment, Steven. My view on such matters is pretty fairly summed up by Posner's chapter in Public Intellectuals on public intellectuals' jeremiads. Whether or not I am an optimist or a strong believer in progress, I am highly distrustful of declinist and jeremiad narratives. They certainly feature in some right-wing conservative public intellectual work, and Posner does a nice job of discussing and criticizing some examples. They also feature on the left; I doubt they feature in equal numbers right now, but they likely have in the past and are still prominent in some areas, probably especially environmental and privacy issues. To the extent that Late Scalia is more declinist, I am inclined to find those aspects of his work overwrought and questionable. Declinists' evidence is often hard to pin down, and what it neglects is as revealing as what it includes--which can indeed be relevant. Scalia is right that more people--including more "ladies"--are inclined to say "fuck" or "asshole" these days in public, and only those who actively welcome more public swearing--on some days I am one of them; it's colorful language--should take this as mere fuddy-duddyism. On the other hand, in the golden age whose passing Scalia laments, more "polite" people were inclined to say "nigger," "kike," and "faggot"--and to treat their exclusion from the companies of "ladies" and "gentlemen" as unexceptionable if not necessary. As a Jew, I am proud on the whole that the legal profession, among others, was first worked around and then invaded by vulgar hordes of non-gentlemenly invaders--of whom Scalia was one. But I'm digressing. My basic point is that: 1) to the extent that some of Scalia's most impassioned dissents on social issues are jeremiads, I don't think well of them; 2) I'm more concerned about that than about general talk of epistemic closure; and 3) when such talk relies on taking or not taking the Post as well as the Journal, it seems pretty overhyped to me.

Posted by: Paul Horwitz | Oct 8, 2013 11:32:16 PM

Pas Le Monde. Il faut lire Le Figaro!

Posted by: Marc DeGirolami | Oct 9, 2013 7:59:52 AM

Professor Horwitz, you seem to have missed the point of the criticim of Scalia. The problem is not that Scalia doesn't read the Washington Post. The problem is the reasons he gave for not reading the Washington Post, which were openly partisan. If a liberal justice said he or she read only the New York Times, the Washington Post, and the New Yorker, there would indeed be no story. If a liberal justice said that she stopped reading the Wall Street Journal because she got sick of the "nasty" conservative "slant," that would raise eyebrows.

I would point out that none of this would raise my eyebrows, since I don't place a lot of weight on the ridiculous fiction that the justices are above partisanship. But to the extent that this fiction is supposed to be maintained -- and I think most would agree that the practice is for active justices to try to maintain it in public comments -- Scalia stepped over the line.

Posted by: AF | Oct 9, 2013 10:23:03 AM

Thanks, AF. It's usually a safe bet that I've missed the point, and I do think you have a good point here. But I'm not sure I agree entirely with your description, for two reasons. 1) I took it that much of the criticism was not so much about his political reasons for skipping this paper, or for his giving political reasons aloud, but that this was taken as emblematic not of his partisanship but of his "epistemic closure" and/or parochialism. I was trying to suggest here that it is poor evidence of epistemic closure or parochialism, and that if we take that idea seriously it applies much more broadly. 2) I think you're right that his candor was off-putting to some. And it may well be that if a liberal justice said she'd stopped reading the Washington Times or the Wall Street Journal because it had gotten too conservative, there would be a (mostly conservative) reaction. (I suspect, however, that if the ostensibly conservative news outlet were anything other than the Journal--if it were Fox News or the Washington Times, for instance--there would be plenty of liberals vocally upset that the justice had *ever* read or viewed that outlet.) But, as I noted parenthetically, if the outlet were anything other than the Journal the surprise that the liberal justice had ever read it would be greater than the upset at his or her saying why he or she had stopped reading it. And we all know the reason the justice wouldn't patronize such an outlet in the first place--why the statement that he or she just reads, say, the Times and the Post--would be in part a partisan or ideological one. It would also have to do with quality, but not only that. You may be right that the fig leaf factor figures in heavily. But the assumptions that are already baked in to the scenario suggest that it's a little much to be too upset either that Scalia doesn't read the Post or at the reasons for it.

Posted by: Paul Horwitz | Oct 9, 2013 11:22:00 AM

In defense of Justice Scalia, I don't read the Post, but I do read the NY Times, the New Republic, the New Yorker, and the Atlantic Monthly. For the last ten years, it has been difficult to read even the film and book reviews in those publications without reading some snide aside about Bush, Republicans, or Scalia himself. I find that tiresome, and I am a liberal. Moreover, many of those comments are rather ignorant (Scalia has been on the bench for 20 years -- why am I still seeing the NY Times describing it as "surprising" when he issues a decision protective of the rights of criminal defendants? And, why does the current New Yorker refer to Donald Rumsfeld's "known and unknown unknowns" quote as "cockamamie" when it is little more than Epistomology 101?). So, I can certainly understand Scalia finally throwing up his hands and turning to other reading material.

Posted by: Gordon Danning | Oct 9, 2013 12:37:49 PM

I think the bigger concern is a few questions down where he says that he gets "most" of his news from talk radio (not NPR).

That'd be like Justice Ginsberg saying she gets most of her news from the Colbert Show.

Posted by: brad | Oct 9, 2013 2:19:04 PM

Professor Horwitz: If the criticism is epistemic closure, I agree with you it is not well-founded. On your second point, I'm not sure I follow all of its permutations. I agree with you that (1) the Post and the Times are liberal; (2) other than, arguably, the Journal, there are no conservative publications perceived as equivalents, and even the Journal is not exactly equivalent because its news side has not traditionally been particularly conservative; and (3) this has something to do with quality. I agree as well that this asymmetry is not *only* due to quality, though quality seems like a sufficient cause, and I suspect we would only partially agree what the other factors are. But you lose me when you suggest that the genteel partisanship implicit in the liberals justices' presumed reading list means that Scalia deserves some sort of special pass for his openly partisan comments. I don't see why that would be.

Posted by: AF | Oct 9, 2013 8:13:36 PM

Thanks again. To be clear, I don't think he deserves a pass; I'm not sure he should have given a free-ranging interview in the first place. And I get the point about his not being supposed to say something openly political, even if he (or another justice) could have just listed a bunch of conservative (or liberal) outlets without as much fuss. But I do think the response was about more than that, and if it was just about that then the difference between "I read X [and implicitly not Y]" and "I don't read Y" seems like a slim reason--not non-existent, but slim--to occasion criticism.

Posted by: Paul Horwitz | Oct 9, 2013 9:10:18 PM

Paul, I think it is about epistemic closure, and I think it is about more than implicit vs. explicit. It is about intentionality. You are right that, if Justice Breyer said he only reads the New York Times and Washington Post, that would engender less criticism. But that is because there is no reason to think he reads those papers *because* they are liberal; the far more likely reason is that he reads the NYT and WP because it is they are the leading newspaper in the country and in Breyer's local market, respectively, and therefore the default choice. In contrast, Justice Scalia seems to have consciously chosen to depart from that default and read the Wall Street Journal and the Washington Times in order to avoid feeling upset every morning. There is a difference there.

Posted by: TJ | Oct 9, 2013 9:54:35 PM

Oh, please. If Ginsburg said she didn't watch Fox because of the conservative/partisan slant, you all would applaud her. And liberals are just as - perhaps more - guilty of blithely dismissing views other than their own.

Posted by: Anon. | Oct 10, 2013 9:07:02 AM

Alternate header for interview:

"JUSTICE SCALIA DISROBED MOONS WASHINGTON POST!"

Posted by: Shag from Brookline | Oct 10, 2013 9:58:42 AM

Since Fox News is the leading television news provider, it's the 'default' choice. Anyone who watches something else is making an intentional choice in favor of epistemic closure.

I think there might be something wrong with this argument--maybe TJ can help me out on where I went wrong.

Justice Souter famously didn't watch television, and the only newspaper he read was the Sunday NY Times. Perhaps he was even more epistemically closed than Scalia, or the average MSNBC viewer.

Posted by: Thomas | Oct 11, 2013 12:23:32 AM

Is there an English language edition of either Le Figaro or Le Monde on line? Der Spiegel does.
We have an English language French TV station here in DC - and a Chinese state TV station here, which is good. For some reason Al Jazeera seems to have disappeared, but it's available on line.
I cancelled my subsription to the Post because the Style Section has metastacized to infect its "substantive" coverage -- all is personality and who's winning. It's cringe-inducing not for its political slant, but for being so bad at what it does. And their travel section stinks on ice. Perhaps the new people will do better.

Posted by: JT | Oct 13, 2013 6:51:29 PM

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