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Wednesday, October 04, 2006

Scalia's Careless Mouth?

Lithwick has a interesting meditation on "whether [Scalia's] protecting his right to express himself, or just relishing his free pass."  This is in the context of Scalia having said in court yesterday: "Nobody thinks your client is really, you know, abstaining from tequila down in Mexico because he is on supervised release in the United States."

I'm certain Scalia has done and said worse.  Didn't he more or less give someone the finger recently?  Oh, that wasn't in court.  In any case, what do you think?  Should he curb his mouth?  Should he be more "decorous"?

Posted by Ethan Leib on October 4, 2006 at 01:40 PM in Constitutional thoughts | Permalink


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Read the transcript. Scalia was responding to a point made by the Deportee's counsel. The lawyer specifically stated that the case was not moot because supervised release still applied to his client, and the lawyer SPECIFICALLY MENTIONED THE PROHIBITION OF USING ALCOHOL WHILE ON SUPERVISED RELEASE. It was in reposne to this comment that Scalia made his. Would anyone have batted an eyelash if the deportee was Russian and the comment was about vodka? Or a Canadian and Molson?

Its unbelievable the petty depths that Scalia's critics will go to criticize him.

Posted by: Nom | Oct 4, 2006 6:45:50 PM

Curiously (at least for me), Scalia's tequila comment came up during during arguments on a case (Lopez v. Gonzales) that emanated from a disputed issue among the US Courts of Appeals that Jack Chin (UArizona Law), Todd Collins (UGA), and I wrote about in 2005 in the Maryland Law Review, see "A War on Drugs or a War on Immigrants: Expanding the Definition of 'Drug Trafficking' In Determining Aggravated Felony Status For Non-Citizens". Somehow we failed to predict this episode as the defining moment of the case - imagine that. ;-)

Posted by: Jeff Yates | Oct 4, 2006 6:17:16 PM

Above the Law has an entry on the matter at this address:
I agree with the commenter on that site that Lithwick has it exactly backwards. If another Justice had said the remark it would not have been noticed at all, because it is (as Paul said) not an indelicate thing to say. It is simply because Lithwick wants to paint Scalia as a bigot (without actually coming out and saying so) that this gets any press at all. The "obscene gesture" incident -- not the "finger" but the non-obscene dismissive Sicilian wave -- is another example of the creation of a controversy having no basis in theretofore recognized standards of conduct.

Posted by: Mike Dimino | Oct 4, 2006 5:08:04 PM

Will Lithwick complain about what Scalia said today? "You can have such a dispute on a theoretical question between, I don't know, the ACLU and the National Rifle Association, but that doesn't create a case or controversy." "Gee, there's less here than meets the eye." "It is sort of like the ACLU saying that the patent is invalid." "Could I have a review of the bidding?" "So the question is how -- you know, how absurd is it not to read it to apply to administrative proceedings in this case? And I find it pretty absurd." "How could OLC possibly think that applied to administrative offsets if it didn't apply to administrative proceedings?" "That's the best thing you have going for you, really. The strict construction canon." "And this is an order. You're -- boom, pay." "And that's rather weird, that the response to a complaint is an appeal."

Posted by: Chris | Oct 4, 2006 5:07:55 PM

Wouldn't this be a lot like a Mexican judge saying, "Nobody thinks your client is really, you know, abstaining from Bud Light up in the States because he is on supervised release in Mexico."? Why is it "tactless" to assume a man drinks alcohol without regard to a foreign country's instructions, just like any red-blooded American male would do?

Posted by: d | Oct 4, 2006 4:18:57 PM

I agree with Paul. When I read that in the transcript yesterday, the comment struck me as mildly colorful, but perfectly appropriate.

Posted by: Chris | Oct 4, 2006 3:06:40 PM

I guess I thought this was an especially weak column by Lithwick, although some of the blame must be laid at the foot of the editors. The whole piece is constructed around the idea that other actors would be subjected to far more criticism for uttering such an indelicate remark, whereas Scalia feels free to be far more careless with his language. But Lithwick, while creating the impression that Scalia's language was indelicate -- an impression that is abetted by the editors' description of Scalia's statement as a "macaca moment" -- assiduously refuses to say whether she thinks his language was, in fact, indelicate. If someone else had made the remark, she says, "The rest of us would have been forced to form some opinion as to whether it was an 'aspersion,' a gaffe, or just a celebration of worm-laden beverages." But shouldn't something turn on whether or not his remark *was* indelicate? The less indelicate the language, the less likely it would be that we'd have one more tedious national conversation about it, regardless of who made the remark. And I don't think Scalia's statement was especially indelicate. His statement is less about any stereotyped vision of Mexican/Latino behavior than it is a statement about the prominence of tequila within Mexican culture -- a statement that is about as indisputable and inoffensive as a statement that wine is an important part of French culture. So, really, she's inviting us to have a conversation about the purported indelicacy of a Justice -- on the occasion of his making a remark that is not indelicate!

Posted by: Paul Horwitz | Oct 4, 2006 2:39:38 PM

I think he should exercise more tact and (verbal) discretion and, dare I say it, that sort of judicial etiquette befitting one of his station (my Confucian conservatism surfaces here although my legal and political views are on the other side of the 'geography of the assembly' from Scalia's). Still, it seems others find his not infrequent departures from the norm endearing. In short, I'm with 'Dave!' (on those who protest too).

Posted by: Patrick S. O'Donnell | Oct 4, 2006 2:27:55 PM

Perhaps he could behave as though he were a Supreme Court Justice, which he frequently does not. Just as I think people who "protest" at his speaking engagements could often be more respectful--if not of the man, then of his position--perhaps he could be, too.

Posted by: Dave! | Oct 4, 2006 2:08:49 PM

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