[EL] Scalia's rhetoric

Mon Jul 6 09:11:58 PDT 2015

This quote struck me as (unintentionally, I think) funny:

¡°The bombastic tone of the dissents this term was over the top, even for Justice Scalia, who has a blood-soaked pen at his desk,¡± Goldstein says.

Nothing bombastic here, no sirree.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Rick Hasen [rhasen at law.uci.edu]
Sent: Monday, July 06, 2015 10:24 AM
To: law-election at UCI.edu
Subject: [EL] ELB News and Commentary 7/6/15

Are Conservatives Looking to Win in Evenwel to Rehabilitate Chief Justice Roberts¡¯ Conservative Reputation?<http://electionlawblog.org/?p=74063>
Posted on July 6, 2015 7:22 am<http://electionlawblog.org/?p=74063> by Rick Hasen<http://electionlawblog.org/?author=3>

Apparently<http://www.washingtontimes.com/news/2015/jul/5/john-roberts-supreme-court-chief-justice-may-be-be/>, a ruling in favor of challengers in the one person, one vote case, ending affirmative action in education, and a death knell for public sector unions might do it, though some thing the Chief is beyond hope.

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Posted in Supreme Court<http://electionlawblog.org/?cat=29>
¡°Harper vs. Canada case a precedent to protect Fair Elections Act, lawyer argues¡±<http://electionlawblog.org/?p=74061>
Posted on July 6, 2015 7:18 am<http://electionlawblog.org/?p=74061> by Rick Hasen<http://electionlawblog.org/?author=3>

CBC News reports<http://www.cbc.ca/news/canada/harper-vs-canada-case-a-precedent-to-protect-fair-elections-act-lawyer-argues-1.3137495>. So sad that we¡¯ve exported the Voting Wars to Canada.

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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
Nina Totenberg on Justice Scalia¡¯s Rhetoric<http://electionlawblog.org/?p=74059>
Posted on July 6, 2015 7:14 am<http://electionlawblog.org/?p=74059> by Rick Hasen<http://electionlawblog.org/?author=3>

In her NPR review<http://www.npr.org/sections/itsallpolitics/2015/07/06/420289254/liberal-minority-won-over-conservatives-in-historic-supreme-court-term> of the Court¡¯s term:

The outcomes this term were so much of a turnaround that the liberal justices looked positively serene, even perky, in June, while the tone of the conservative dissents was unusually harsh.

¡°The bombastic tone of the dissents this term was over the top, even for Justice Scalia, who has a blood-soaked pen at his desk,¡± Goldstein says.

¡°He wrote the nastiest thing I have read in any Supreme Court opinion,¡± says Charles Fried, who served as the government¡¯s chief advocate in the Supreme Court during the Reagan administration.

Dellinger, who had the same job in the Clinton Administration, agrees.

¡°I¡¯ve never seen that kind of really, deeply personal attack that basically says ¡®The author of the opinion is not just wrong as a matter of law, he¡¯s a jerk,¡¯ ¡± says Dellinger.

That¡¯s pretty much what Justice Scalia wrote about<http://www.npr.org/sections/thetwo-way/2015/06/26/417720924/roberts-celebrate-todays-decision-but-do-not-celebrate-the-constitution> Justice Kennedy¡¯s soaring rhetoric in the same-sex marriage case, calling it ¡°pretentious,¡± and ¡°egotistic,¡± and comparing it to ¡°the mystical aphorisms of a fortune cookie.¡± If I had ever joined such a vague opinion, said Scalia, ¡°even as the price to be paid for a fifth vote, ¡. I would hide my head in a bag.¡±

Fried, now a professor at Harvard Law School, says that in some ways, Kennedy¡¯s opinion provoked that reaction. He says that Kennedy should have focused on legal precedents instead of poetic passages. In particular, the court¡¯s 1967 decision striking down state bans on interracial marriage<https://www.aclu.org/loving-v-virginia-case-over-interracial-marriage>, and two more recent decisions dealing with same-sex relations and marriage.

Those three court precedents dictated the result, Fried maintains, adding, ¡°That is the law. Suck it up!¡±

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Posted in Supreme Court<http://electionlawblog.org/?cat=29>
¡°Democrats Make Advances, but House Still Proves Elusive¡±<http://electionlawblog.org/?p=74057>
Posted on July 6, 2015 7:11 am<http://electionlawblog.org/?p=74057> by Rick Hasen<http://electionlawblog.org/?author=3>

John Harwood<http://www.nytimes.com/2015/07/03/us/politics/democrats-make-advances-but-house-still-proves-elusive.html?_r=1> NYT:

From one vantage point, recent advances on race, gay rights and health care give the impression of powerful momentum for America¡¯s liberal Democrats.

But inside one of Washington¡¯s power centers, they are running straight into a wall ¡ª and are unlikely to break through it for a long time. Among the ironies of the rapid shift on cultural issues is the inability of Democrats to profit from it in the House of Representatives.

Republicans hold their largest House majority since the Great Depression<http://topics.nytimes.com/top/reference/timestopics/subjects/g/great_depression_1930s/index.html?inline=nyt-classifier>, holding 246 of the 435 seats in the House, meaning that Democrats must pick up 30 spots to regain a majority. The power of incumbency and the effects of polarization, which has dramatically shrunk the number of voters up for grabs, make gains of that magnitude excruciatingly difficult.

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Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>, political parties<http://electionlawblog.org/?cat=25>, political polarization<http://electionlawblog.org/?cat=68>, redistricting<http://electionlawblog.org/?cat=6>
¡°Politics Ain¡¯t Broke, So Reforms Won¡¯t Fix It¡±<http://electionlawblog.org/?p=74055>
Posted on July 6, 2015 7:07 am<http://electionlawblog.org/?p=74055> by Rick Hasen<http://electionlawblog.org/?author=3>

Jeff Milyo <http://www.washingtonexaminer.com/politics-aint-broke-so-reforms-wont-fix-it/article/2567569> in the Wash Examiner:

The national pastime is not baseball. Americans have a far more enduring passion for grumbling about politics and the venality of politicians. This is probably quite healthy. After all, demagogues and their schemes may be more effectively frustrated by ridicule than rational argument. But perhaps nothing stokes our sardonic impulses more than intercourse of money and politics.

Concern about the role of money in politics is nothing new, and nor are calls for sweeping reform. But public discussion of reform is typically colored only by the latest scandal or political campaign, with little attention to relevant lessons from recent experiences with similar reforms. So reform efforts are best viewed as emotional, reflexive responses to current events, rather than as well-considered policies informed by solid evidence.

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Posted in campaign finance<http://electionlawblog.org/?cat=10>
¡°Scott Walker, legislative leaders drop open records changes¡±<http://electionlawblog.org/?p=74053>
Posted on July 5, 2015 8:48 pm<http://electionlawblog.org/?p=74053> by Rick Hasen<http://electionlawblog.org/?author=3>

Wisconsin State Journal:<http://host.madison.com/wsj/news/local/govt-and-politics/scott-walker-legislative-leaders-drop-open-records-changes/article_0b1fb6da-39d2-5229-b54e-491aa98901db.html>

In the face of withering criticism, Gov. Scott Walker and the Republican leaders of the Legislature announced Saturday that a provision added to the state budget to gut the open records law ¡°will be removed from the budget in its entirety.¡±

Walker made the announcement Saturday afternoon in a joint statement with Senate Majority Leader Scott Fitzgerald, R-Juneau, Assembly Speaker Robin Vos, R-Rochester, and Joint Finance Committee co-Chairs, Sen. Alberta Darling, R-River Hills, and Rep. John Nygren, R-Marinette.

¡°We are steadfastly committed to open and accountable government,¡± the statement said. ¡°The intended policy goal of these changes was to provide a reasonable solution to protect constituents¡¯ privacy and to encourage a deliberative process between elected officials and their staff in developing policy. It was never intended to inhibit transparent government in any way.¡±

The statement said the Legislature will form a Legislative Council committee to study the matter outside of the budget process.

No one claimed responsibility for requesting the language be added to a sweeping omnibus amendment the Legislature¡¯s budget committee passed late Thursday. And it¡¯s unclear what role, if any, Walker played in the drama over the past few days.

But amid near-universal condemnation of the move and bipartisan demands that the language be withdrawn or that Walker use his partial veto power to strip it out of the budget if it passed, the governor and the leadership conceded defeat on the issue.

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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
¡°I.R.S. Expected to Stand Aside as Nonprofits Increase Role in 2016 Race¡±<http://electionlawblog.org/?p=74051>
Posted on July 5, 2015 8:36 pm<http://electionlawblog.org/?p=74051> by Rick Hasen<http://electionlawblog.org/?author=3>

Eric Lichtblau<http://www.nytimes.com/2015/07/06/us/politics/irs-expected-to-stand-aside-as-nonprofits-increase-role-in-2016-race.html?ref=politics> for the NYT:

As presidential candidates find new ways to exploit secret donations from tax-exempt groups, hobbled regulators at the Internal Revenue Service appear certain to delay trying to curb widespread abuses at nonprofits until after the 2016 election.

In a shift from past elections, at least eight Republican presidential candidates, including leading contenders like Jeb Bush and Senator Marco Rubio of Florida, have aligned with nonprofit groups set up to raise hundreds of millions of dollars. Hillary Rodham Clinton¡¯s supporters are considering a similar tactic.

Some of these so-called social welfare nonprofit groups are already planning political initiatives, including a $1 million advertising campaign about Iran by a tax-exempt group supporting Mr. Rubio.

The groups are able to carry out many of the same political activities as candidates and their affiliated ¡°super PACs<http://topics.nytimes.com/top/reference/timestopics/subjects/c/campaign_finance/index.html?inline=nyt-classifier>¡± but do not have to disclose where they get their money, allowing total anonymity for donors.

While the nonprofit groups are supposed to limit their political activity, the I.R.S. appears powerless to stop the onslaught of money coursing through them.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>
¡°Facing a Selfie Election, Presidential Hopefuls Grin and Bear It¡±<http://electionlawblog.org/?p=74049>
Posted on July 5, 2015 8:34 pm<http://electionlawblog.org/?p=74049> by Rick Hasen<http://electionlawblog.org/?author=3>

Kissing babies out. Selfie sticks in, reports the NYT.<http://www.nytimes.com/2015/07/05/us/politics/facing-a-selfie-election-presidential-hopefuls-grin-and-bear-it.html?ref=politics&_r=0>

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Posted in campaigns<http://electionlawblog.org/?cat=59>
Big Voter ID Fight in Canada as Government Takes Position Voter ID Cards Not Good Enough as ID<http://electionlawblog.org/?p=74047>
Posted on July 5, 2015 8:32 pm<http://electionlawblog.org/?p=74047> by Rick Hasen<http://electionlawblog.org/?author=3>

The Star reports.<http://www.thestar.com/news/canada/2015/07/03/voter-id-cards-not-enough-at-ballot-box-government-argues.html>

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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>
¡°Voting Rights Bill Would Address, Not Invalidate TX Law¡±<http://electionlawblog.org/?p=74045>
Posted on July 5, 2015 8:29 pm<http://electionlawblog.org/?p=74045> by Rick Hasen<http://electionlawblog.org/?author=3>

Texas Tribune<http://www.texastribune.org/2015/07/02/voting-rights-bill-would-address-not-invalidate-tx/>:

A voting rights bill introduced in Congress last week would subject Texas elections to new levels of federal scrutiny, but it would not invalidate the state¡¯s controversial 2011 voter photo ID law that helped inspire it¡.

Asked whether House Judiciary Chairman Bob Goodlatte, a Virginia Republican, would schedule a hearing on the House¡¯s version of the bill, a House judiciary aide said in an email, ¡°The Voting Rights Act is alive and well and protecting the freedom to vote.¡±

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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>, VRAA<http://electionlawblog.org/?cat=81>
¡°States are ignoring federal law about voter registration. Here¡¯s why.¡±<http://electionlawblog.org/?p=74043>
Posted on July 5, 2015 8:26 pm<http://electionlawblog.org/?p=74043> by Rick Hasen<http://electionlawblog.org/?author=3>

Douglas Hess<http://www.washingtonpost.com/blogs/monkey-cage/wp/2015/07/04/states-are-ignoring-federal-law-about-voter-registration-heres-why/> for The Monkey Cage.

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Posted in election administration<http://electionlawblog.org/?cat=18>, NVRA (motor voter)<http://electionlawblog.org/?cat=33>
¡°Accusations fly as NC House changes course on Greensboro redistricting¡±<http://electionlawblog.org/?p=74041>
Posted on July 5, 2015 8:22 pm<http://electionlawblog.org/?p=74041> by Rick Hasen<http://electionlawblog.org/?author=3>

News and Observer<http://www.newsobserver.com/news/politics-government/politics-columns-blogs/under-the-dome/article26047744.html>:

After a heated debate that featured accusations of deception and Senate coercion, the N.C. House rapidly changed course Thursday on legislation that would change how the Greensboro City Council is elected.

The bill ¨C now a law after the Senate also voted Thursday ¨C marks the second time this year that the legislature has reshaped local elections. An April vote redrew the Wake County Board of Commissioners district boundaries in a change likely to favor Republicans.

That bill passed quickly along party lines, but the Greensboro council redistricting prompted a bitter split among GOP legislators. And it drew comments from legislators who represent other areas, including criticism that the change will diminish the impact of black Greensboro residents.

Before Shelby County, this plan would have required federal approval, and proof that the plan would not make protected minority voters worse off.

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Posted in redistricting<http://electionlawblog.org/?cat=6>
@Lessig Criticizes Bernie Sanders¡¯ Rejection of Super PACs<http://electionlawblog.org/?p=74038>
Posted on July 3, 2015 8:40 am<http://electionlawblog.org/?p=74038> by Rick Hasen<http://electionlawblog.org/?author=3>

The Guardian<http://www.theguardian.com/us-news/2015/jul/03/bernie-sanders-grassroots-movement-gains-clinton-machine>:

Clinton will also get help from the Priorities USA Super PAC, which is backing her candidacy despite a pledge by the candidate to combat ¡°uncontrolled money¡± in politics<http://www.theguardian.com/us-news/2015/apr/14/hillary-clinton-political-finance-reform-2016-iowa>, and announced Thursday<http://www.nytimes.com/politics/first-draft/2015/07/02/super-pac-raises-15-6-million-for-hillary-clinton-campaign/> that it has raised $15.6m ¨C bringing the coffers of her campaign and its allies beyond $60m so far.

In contrast, Sanders, who rails against the ¡°grotesque and obscene¡± concentration of wealth in America, has refused to have a Super Pac support him and is focused on wooing small-dollar donors.

Harvard University professor Lawrence Lessig, who founded a Super Pac to end Super Pacs, said Sanders¡¯ renouncing Super Pacs is tantamount to ¡°bringing a knife to a gunfight¡±.

¡°I regret the fact the Bernie Sanders has embraced the idea that he¡¯s going to live life like the Vermont snow, as pure as he possibly can, while he runs for president, because it weakens his chances ¨C and he¡¯s an enormously important progressive voice,¡± Lessig said.

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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
Goldstein and Totenberg on the ¡°Roberts Court¡±<http://electionlawblog.org/?p=74036>
Posted on July 3, 2015 8:30 am<http://electionlawblog.org/?p=74036> by Rick Hasen<http://electionlawblog.org/?author=3>

On NPR<http://www.npr.org/2015/06/30/418924513/fractures-in-the-supreme-court-revealed-in-this-years-decisions?utm_campaign=storyshare&utm_source=twitter.com&utm_medium=social> with Robert Siegel:

SIEGEL: It is. Now, I¡¯m surprised. You brought this to my attention that this is now 10 years since John Roberts has been chief justice. It doesn¡¯t feel that long to me somehow (laughter) but I guess we¡¯re older than I think. Can one now speak of a Roberts court that has a particular flavor to it?

TOTENBERG: His model for what a chief justice should be was Charles Evans Hughes, who was a great chief justice during the New Deal era and basically saved the Court in many ways from being dismantled or added to by Franklin Delano Roosevelt. He¡¯s an institutionalist like Hughes, so that¡¯s what I take from it. He writes beautifully. He is a ¨C pretty much a purist on the First Amendment, he and Kennedy. But I don¡¯t think he¡¯s a beloved chief justice either.

SIEGEL: Tom.

GOLDSTEIN: Well, what we hear from inside the building is that he does run the Supreme Court and the federal judiciary very well and that¡¯s his princip[al] job. But, of course, he only has one vote and he does not have a Roberts court in that sense. He finds himself in big case after big case often in dissent. Justice Kennedy is the justice who is really controlling the swings in the court as we know ¡¯cause he¡¯s in the ideological center. So there¡¯s ¨C he¡¯s doing what he can, but frequently it¡¯s not much.

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Posted in Supreme Court<http://electionlawblog.org/?cat=29>
Marty Lederman on Biggest #SCOTUS Term Surprises<http://electionlawblog.org/?p=74034>
Posted on July 3, 2015 8:27 am<http://electionlawblog.org/?p=74034> by Rick Hasen<http://electionlawblog.org/?author=3>

At Slate.<http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2015/scotus_roundup/supreme_court_surprises_obamacare_marriage_jerusalem_passport_arizona_judicial.html>

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Posted in Supreme Court<http://electionlawblog.org/?cat=29>
¡°Scalia, Sotomayor most outspoken justices inside, outside court¡±<http://electionlawblog.org/?p=74032>
Posted on July 3, 2015 8:23 am<http://electionlawblog.org/?p=74032> by Rick Hasen<http://electionlawblog.org/?author=3>

Richard Wolf<http://www.usatoday.com/story/news/politics/2015/07/02/supreme-court-justices-financial-disclosures/29628595/> for USA Today:

He speaks the most during oral arguments, so perhaps it¡¯s no surprise that Supreme Court Justice Antonin Scalia remains the most popular among his colleagues on the outside speaking circuit as well.

Scalia took 23 trips for which he was reimbursed in 2014 to deliver speeches and lectures or teach courses, according to financial disclosure statements made public Thursday. That was more than any of his colleagues on the court.

Justice Sonia Sotomayor, the second most frequent questioner inside the courtroom, was the second most popular speaker outside court. She was reimbursed for 16 trips, including to Berlin and Florence, Italy. Justice Anthony Kennedy, who wrote the landmark decision declaring a nationwide right to same-sex marriage, took 13 trips.

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Posted in Celebrity Justice<http://electionlawblog.org/?cat=109>, Supreme Court<http://electionlawblog.org/?cat=29>
¡°Secret spenders face challenge in 2016¡å<http://electionlawblog.org/?p=74030>
Posted on July 3, 2015 8:21 am<http://electionlawblog.org/?p=74030> by Rick Hasen<http://electionlawblog.org/?author=3>

Teddy Schleifer <http://www.cnn.com/2015/07/03/politics/election-law-nonprofits-rule/index.html> for CNN:

Secret money groups will have to work harder this year to keep their spending hidden.

That¡¯s because of a legal complication that is sending some Republican operatives back to the drawing board this cycle: Since Hillary Clinton is not a current federal officeholder ¡ª like Obama was in 2012 or Clinton was until she left his administration in 2013 ¡ª the nonprofit groups need to find more oblique ways to spend the money that they aren¡¯t allowed to dedicate to full-throttle attacks.

If Clinton were a current official, Republican groups could argue that these ads were merely debating the issues, allowing them to maintain their tax-exempt status while nevertheless dedicating nearly their entire media budgets to ads that slice and dice the Democratic hopeful.

Now, they¡¯ll have to get creative.

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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>
¡°Voting Rights and the 14th Amendment¡±<http://electionlawblog.org/?p=74026>
Posted on July 2, 2015 3:46 pm<http://electionlawblog.org/?p=74026> by Rick Hasen<http://electionlawblog.org/?author=3>

Airing on C-SPAN3 (corrected) <http://www.c-span.org/video/?326094-1/discussion-voting-rights-14th-amendment> July 4 at 6 pm:

Marking the anniversary of the end of the Civil War, panelists discuss the origins of the 14th amendment and how voting rights have changed over time in America.

PEOPLE IN THIS VIDEO

  *   Asa Gordon<http://www.c-span.org/person/?60314>
  *   Secretary GeneralSons and Daughters of the United States Colored Troops
  *
  *   Richard Kreitner<http://www.c-span.org/person/?97528>
  *   EditorNation, The->Archives Blog

  *   Frank Smith Jr.<http://www.c-span.org/person/?6372>
  *   DirectorAfrican American Civil War Memorial Freedom Foundation and Museum

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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
¡°How Supreme Court ruling could jump-start political innovation¡±<http://electionlawblog.org/?p=74024>
Posted on July 2, 2015 3:42 pm<http://electionlawblog.org/?p=74024> by Rick Hasen<http://electionlawblog.org/?author=3>

CS Monitor.<http://www.csmonitor.com/USA/Politics/2015/0701/How-Supreme-Court-ruling-could-jump-start-political-innovation?cmpid=addthis_facebook>

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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
@AdamLiptak Too Notes Change in J. Scalia Demeanor<http://electionlawblog.org/?p=74022>
Posted on July 2, 2015 11:18 am<http://electionlawblog.org/?p=74022> by Rick Hasen<http://electionlawblog.org/?author=3>

Fresh Air<http://www.npr.org/2015/07/02/419468563/was-the-most-current-supreme-court-session-a-liberal-term-for-the-ages>:

On how Justice Scalia¡¯s dissent in the marriage equality decision mocked Justice Kennedy

That¡¯s a another trend this term: The level of personal ad hominem animus, just personal insult ¡ª particularly from Scalia, but not only from Scalia ¡ª was really extraordinary this term, and you saw a kind of change in Justice Scalia, who, it must be said, in his earlier years was a towering legal figure and a vivid writer and sometimes a snarky writer, but a man who single-handedly transformed areas of American law. And now he seems to have turned a corner and is just spewing a kind of ¡°get off my lawn¡± kind of bile that doesn¡¯t obviously advance his jurisprudential cause. He seems very angry.

As I¡¯ve said earlier,<http://electionlawblog.org/?p=73787> it¡¯s not just <http://www.nytimes.com/2015/01/20/us/scalia-lands-at-top-of-sarcasm-index-of-justices-shocking.html?_r=0> the longstanding sarcasm<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2550923>. There¡¯s been a change in both the nature and frequency of the most gratuitous insults. I can¡¯t think of anything else like his statement that he would ¡°hide his head in a bag¡± rather than sign the Kennedy same sex marriage opinion.

Maybe all the Justices are getting snippier as a result.  I was somewhat surprised at the ¡°What chumps!¡± in the Roberts AZ redistricting dissent. And Justice Kagan, while she writes beautifully and clearly, has been veering in the sarcasm direction. But Scalia is off the charts qualitatively and quantitatively.

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Posted in Supreme Court<http://electionlawblog.org/?cat=29>
Must-Read Ned Foley on the Promise of Election Reform after #SCOTUS AZ Case<http://electionlawblog.org/?p=74020>
Posted on July 2, 2015 11:09 am<http://electionlawblog.org/?p=74020> by Rick Hasen<http://electionlawblog.org/?author=3>

Leading off<http://www.electionline.org/index.php/electionline-weekly> Electionline Weekly.

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Posted in election administration<http://electionlawblog.org/?cat=18>, Elections Clause<http://electionlawblog.org/?cat=70>, Supreme Court<http://electionlawblog.org/?cat=29>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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