[EL] ELB News and Commentary 1/20/15

[Rick Hasen]

    ore on the Sarcasm Index and the Justice Scalia “Echo Effect”
    <http://electionlawblog.org/?p=69769>

Posted onJanuary 20, 2015 8:16 am 
<http://electionlawblog.org/?p=69769>byRick Hasen 
<http://electionlawblog.org/?author=3>

Will Baude 
<http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/01/20/my-assessment-of-justice-scalias-reputation-for-sarcasm/>, 
writing over at SCOTUS, is skeptical of my methodology in my new 
draft,The Most Sarcastic Justice 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2550923>, 
determining that Justice Scalia has been viewed the most sarcastic 
Justice by far in at least the last 30 years. Writes Will:

    [I]t seems to me that Hasen’s methodology reflects a serious
    circularity in observations of the tone of Supreme Court Justices.
    When observers call a Scalia opinion “sarcastic” (or “stinging” or
    “caustic” or “angry” or anything else), I am not always sure whether
    this assessment is derived from what is actually written down, or
    from what the observer/expects/the tone to be.

    Hasen acknowledges this and refers to it as the “‘echo chamber’
    effect,” which he says he “cannot eliminate.” It seems to me that
    one way to eliminate it would be to have a set of readers,
    preferably those unfamiliar with the personal reputations of any of
    the Justices, read a bunch of anonymized Supreme Court passages and
    then evaluate the tone of the passages. Maybe the result would still
    be the same — I wouldn’t be surprised — but it might also be much
    less dramatic.

Adam Liptak raised this echo chamber effect with me inhis NYT Sidebar 
column. 
<http://www.nytimes.com/2015/01/20/us/scalia-lands-at-top-of-sarcasm-index-of-justices-shocking.html> I 
briefly address it in a footnote in the piece, but I’m thinking I will 
need to expand the discussion as I continue to work on the piece. Here’s 
Adam:

    Another possible objection is that people repeat the conventional
    wisdom and reinforce stereotypes. Justice Scalia may be sarcastic in
    the way President Gerald R. Ford was said to have been clumsy and
    Vice President Dan Quayle dim.

    In an interview, Professor Hasen said he had taken that possibility
    into account. “My control for that,” he said, “is that I live in the
    real world.”

I wanted to elaborate on this point a bit. Yes of course it would be 
better to have randomized people read these opinions and classify 
sarcasm when they see them. But that is not a feasible research 
strategy. So my check was this: I looked at many of the references in 
law journals to a Justice’s opinion being sarcastic or caustic, and the 
judgment usually seemed to me to be on the mark, as a regular user of 
the English language. It is really hard to argue with the idea that 
many, many of the quotes pointed to from Justice Scalia are nasty or 
ironic, and often aimed at his colleagues.  Here’s an excerpt from my 
piece which shows what I’m talking about (footnotes omitted):

    Justice Scalia has called other Justices’ opinions or arguments
    which he has disagreed with “bizarre,” “[g]rotesque,” and
    “incoherent.”…Justice Scalia has remarked that “Seldom has an
    opinion of this Court rested so obviously upon nothing but the
    personal views of its Members.” In a civil rights case, he ended his
    dissent by stating that: “The irony is that these
    individuals—predominantly unknown, unaffluent, unorganized—suffer
    this injustice at the hands of a Court fond of thinking itself the
    champion of the politically impotent.” In a gender discrimination
    case, he wrote: “Today’s opinion is an inspiring demonstration of
    how thoroughly up-to-date and right-thinking we Justices are
    in matters pertaining to the sexes (or as the C would have it, the
    genders), and how sternly we disapprove the male chauvinist
    attitudes of our predecessors. The price to be paid for this
    display—a modest price, surely—is that most of the opinion is quite
    irrlevant to the case at hand.” In an abortion rights case he
    declared: “The emptiness of the ‘reasoned judgment’ that produced
    Roe is displayed in plain view by the fact that, after more than 19
    years of effort by some of the brightest (and most determined) legal
    minds in the country, after more than 10 cases upholding abortion
    rights in this Court, and after dozens upon dozens of amicus briefs
    submitted in these and other cases, the best the Court can do to
    explain how it is that the word ‘liberty’ must be thought to include
    the right to destroy human fetuses is to rattle off a collection of
    adjectives that simply decorate a value judgment and conceal a
    political choice.” Finally, in a concurring opinion in a substantive
    due process case, Justice Scalia wrote: “Today’s opinion gives the
    lie to those cynics who claim that changes in thisCourt’s
    jurisprudence are attributable to changes in the Court’s membership.
    It proves that the changes are attributable to nothing but the
    passage of time (not much time, at that), plus application of the
    ancient maxim, ‘That was then, this is now.

So I’m pretty confident that what observers are calling sarcastic or 
caustic actually fit the bill.

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Posted inSupreme Court <http://electionlawblog.org/?cat=29>


    Must Read Jim Dwyer NYT Piece on Lone Voter Fraud Prosecution in NYC
    <http://electionlawblog.org/?p=69767>

Posted onJanuary 20, 2015 8:03 am 
<http://electionlawblog.org/?p=69767>byRick Hasen 
<http://electionlawblog.org/?author=3>

Somehow I missedthis Jim Dwyer NYT piece 
<http://www.nytimes.com/2015/01/16/nyregion/man-seeks-to-turn-tables-on-officials-in-voter-fraud.html?_r=0>last 
week:

    John Kennedy O’Hara spent most of 2003 picking up garbage in city
    parks and cleaning public toilets as part of his sentence for
    illegal voting in Brooklyn. Also, he had to pay a fine and
    restitution amounting to $15,192. His supposed crime was that he
    registered to vote using the address of a girlfriend on 47th Street
    in Sunset Park, where he claimed to live part of the time. But he
    also maintained a residence 14 blocks away.

    While this sounds like pretty serious punishment for virtually
    nothing — the state election laws are so remarkably elastic on
    matters of residency that a former head of the Brooklyn Democratic
    Party was actually living in Queens during his reign — we cannot be
    sure if Mr. O’Hara got more than his unfair share.

    There are, after all, very few people to compare him with.

    Practically no one.

      It appears that the last person to be convicted of illegal voting
    in New York State before Mr. O’Hara was the abolitionist and
    suffragistSusan B. Anthony
    <http://susanbanthonyhouse.org/her-story/biography.php>, who cast a
    ballot in Rochester in 1872, flagrantly disregarding that she was a
    woman and therefore not allowed to do so. She was not sentenced to
    pick up garbage in the parks, but was fined $100. She never paid.

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Posted inUncategorized <http://electionlawblog.org/?cat=1>


    “5 Years After Citizens United, Secret Money Floods Into U.S.
    Politics” <http://electionlawblog.org/?p=69763>

Posted onJanuary 20, 2015 7:56 am 
<http://electionlawblog.org/?p=69763>byRick Hasen 
<http://electionlawblog.org/?author=3>

Peter Overby reports 
<http://www.npr.org/2015/01/20/378525627/5-years-after-citizens-united-ruling-secret-money-floods-into-u-s-politics>for 
NPR.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme 
Court <http://electionlawblog.org/?cat=29>


    Nina Totenberg Previews Williams-Yulee Judicial Campaign Case at
    #SCOTUS <http://electionlawblog.org/?p=69761>

Posted onJanuary 20, 2015 7:54 am 
<http://electionlawblog.org/?p=69761>byRick Hasen 
<http://electionlawblog.org/?author=3>

Here 
<http://www.npr.org/2015/01/20/377784225/should-judicial-candidates-be-allowed-to-solicit-campaign-money>at 
NPR.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns 
<http://electionlawblog.org/?cat=59>,judicial elections 
<http://electionlawblog.org/?cat=19>,Supreme Court 
<http://electionlawblog.org/?cat=29>


    Common Cause to Rep. Goodlatte: “Discrimination Isn’t a Thing of the
    Past” <http://electionlawblog.org/?p=69759>

Posted onJanuary 20, 2015 7:50 am 
<http://electionlawblog.org/?p=69759>byRick Hasen 
<http://electionlawblog.org/?author=3>

Blog post. 
<http://www.commoncause.org/democracy-wire/voting-discrimimation-isnt-a-thing-of-the-past.html>

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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>,VRAA 
<http://electionlawblog.org/?cat=81>


    “It’s All Happening in Ohio” <http://electionlawblog.org/?p=69757>

Posted onJanuary 20, 2015 7:48 am 
<http://electionlawblog.org/?p=69757>byRick Hasen 
<http://electionlawblog.org/?author=3>

A ChapinBlog. 
<http://blog.lib.umn.edu/cspg/electionacademy/2015/01/its_all_happening_in_ohio.php>

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Posted inElection Assistance Commission <http://electionlawblog.org/?cat=34>

-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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