Forum Post: Piers Morgan recently had Scalia on his show:
Posted 12 years ago on Oct. 14, 2012, 7:48 a.m. EST by factsrfun
(8342)
from Phoenix, AZ
This content is user submitted and not an official statement
http://cnn.com/video/?/video/bestoftv/2012/07/18/pmt-scalia-bush-gore.cnn
It's not in this clip but in this show, first he said, if he were King flag burning would be illegal, then he says making flag burning illegal is the sort of thing that tyrants do, then when asked about abortion he said he had no public opinion on matters of law! How can he sit there and lie so clearly right out loud with no fear of being called out on it? When flag burning is absolutely a matter of law.
Why is this monster still in the court?
Scalia: "Mere factual innocence is no reason not to carry out a death sentence properly reached." http://thinkexist.com/quotes/antonin_scalia/
"Scalia says there’s nothing unconstitutional about executing the innocent."
http://thinkprogress.org/politics/2009/08/17/56525/scalia-actual-innocence/?mobile=nc
I thought community standards stood for something. Scalia is morally unfit to wear judges' robes on any level.
ARIZONA v. HICKS, 480 U.S. 321 (1987) 480 U.S. 321 ARIZONA v. HICKS CERTIORARI TO THE COURT OF APPEALS OF ARIZONA
No. 85-1027.
Argued December 8, 1986 Decided March 3, 1987
A bullet fired through the floor of respondent's apartment injured a man on the floor below. Police entered the apartment to search for the shooter, for other victims, and for weapons, and there seized three weapons and discovered a stocking-cap mask. While there, one of the policemen noticed two sets of expensive stereo components and, suspecting that they were stolen, read and recorded their serial numbers - moving some of them, including a turntable, to do so - and phoned in the numbers to headquarters. Upon learning that the turntable had been taken in an armed robbery, he seized it immediately. Respondent was subsequently indicted for the robbery, but the state trial court granted his motion to suppress the evidence that had been seized, and the Arizona Court of Appeals affirmed. Relying upon a statement in Mincey v. Arizona, 437 U.S. 385 , that a warrantless search must be "strictly circumscribed by the exigencies which justify its initiation," the Court of Appeals held that the policeman's obtaining the serial numbers violated the Fourth Amendment because it was unrelated to the shooting, the exigent circumstance that justified the initial entry and search. Both state courts rejected the contention that the policeman's actions were justified under the "plain view" doctrine.
Held:
The policeman's actions come within the purview of the Fourth Amendment. The mere recording of the serial numbers did not constitute a "seizure" since it did not meaningfully interfere with respondent's possessory interest in either the numbers or the stereo equipment. However, the moving of the equipment was a "search" separate and apart from the search that was the lawful objective of entering the apartment. The fact that the search uncovered nothing of great personal value to respondent is irrelevant. Pp. 324-325.
The "plain view" doctrine does not render the search "reasonable" under the Fourth Amendment. Pp. 325-329.
(a) The policeman's action directed to the stereo equipment was not ipso facto unreasonable simply because it was unrelated to the justification for entering the apartment. That lack of relationship always exists when the "plain view" doctrine applies. In saying that a warrantless search must be "strictly circumscribed by the exigencies which justify its initiation," Mincey was simply addressing the scope [480 U.S. 321, 322] of the primary search itself, and was not overruling the "plain view" doctrine by implication. Pp. 325-326.
(b) However, the search was invalid because, as the State concedes, the policeman had only a "reasonable suspicion" - i. e., less than probable cause to believe - that the stereo equipment was stolen. Probable cause is required to invoke the "plain view" doctrine as it applies to seizures. It would be illogical to hold that an object is seizable on lesser grounds, during an unrelated search and seizure, than would have been needed to obtain a warrant for it if it had been known to be on the premises. Probable cause to believe the equipment was stolen was also necessary to support the search here, whether legal authority to move the equipment could be found only as the inevitable concomitant of the authority to seize it, or also as a consequence of some independent power to search objects in plain view. Pp. 326-328.
146 Ariz. 533, 707 P.2d 331, affirmed. SCALIA, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. WHITE, J., filed a concurring opinion, post, p. 329. POWELL, J., filed a dissenting opinion, in which REHNQUIST, C. J., and O'CONNOR, J., joined, post, p. 330. O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C. J., and POWELL, J., joined, post, p. 333.
Linda A. Akers, Assistant Attorney General of Arizona, argued the cause for petitioner. With her on the briefs were Robert K. Corbin, Attorney General, Steven A. LaMar, Assistant Attorney General, and Steven J. Twist, Chief Assistant Attorney General.
John W. Rood III, by appointment of the Court, 476 U.S. 1113 , argued the cause for respondent. With him on the brief was James H. Kemper. *
[ Footnote * ] David Crump, Daniel B. Hales, William C. Summers, Jack E. Yelverton, Fred E. Inbau, Wayne W. Schmidt, and James P. Manak filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae urging reversal.
William J. Taylor, George Kannar, and Burt Neuborne filed a brief for the American Civil Liberties Union Foundation as amicus curiae urging affirmance. [480 U.S. 321, 323]
JUSTICE SCALIA delivered the opinion of the Court.
In Coolidge v. New Hampshire, 403 U.S. 443 (1971), we said that in certain circumstances a warrantless seizure by police of an item that comes within plain view during their lawful search of a private area may be reasonable under the Fourth Amendment. See id., at 465-471 (plurality opinion); id., at 505-506 (Black, J., concurring and dissenting); id., at 521-522 (WHITE, J., concurring and dissenting). We granted certiorari, 475 U.S. 1107 (1986), in the present case to decide whether this "plain view" doctrine may be invoked when the police have less than probable cause to believe that the item in question is evidence of a crime or is contraband.
I
On April 18, 1984, a bullet was fired through the floor of respondent's apartment, striking and injuring a man in the apartment below. Police officers arrived and entered respondent's apartment to search for the shooter, for other victims, and for weapons. They found and seized three weapons, including a sawed-off rifle, and in the course of their search also discovered a stocking-cap mask.
One of the policemen, Officer Nelson, noticed two sets of expensive stereo components, which seemed out of place in the squalid and otherwise ill-appointed four-room apartment. Suspecting that they were stolen, he read and recorded their serial numbers - moving some of the components, including a Bang and Olufsen turntable, in order to do so - which he then reported by phone to his headquarters. On being advised that the turntable had been taken in an armed robbery, he seized it immediately. It was later determined that some of the other serial numbers matched those on other stereo equipment taken in the same armed robbery, and a warrant [480 U.S. 321, 324] was obtained and executed to seize that equipment as well. Respondent was subsequently indicted for the robbery.
The state trial court granted respondent's motion to suppress the evidence that had been seized. The Court of Appeals of Arizona affirmed. It was conceded that the initial entry and search, although warrantless, were justified by the exigent circumstance of the shooting. The Court of Appeals viewed the obtaining of the serial numbers, however, as an additional search, unrelated to that exigency. Relying upon a statement in Mincey v. Arizona, 437 U.S. 385 (1978), that a "warrantless search must be `strictly circumscribed by the exigencies which justify its initiation,'" id., at 393 (citation omitted), the Court of Appeals held that the police conduct violated the Fourth Amendment, requiring the evidence derived from that conduct to be excluded. 146 Ariz. 533, 534-535, 707 P.2d 331, 332-333 (1985). Both courts - the trial court explicitly and the Court of Appeals by necessary implication - rejected the State's contention that Officer Nelson's actions were justified under the "plain view" doctrine of Coolidge v. New Hampshire, supra. The Arizona Supreme Court denied review, and the State filed this petition.
II
As an initial matter, the State argues that Officer Nelson's actions constituted neither a "search" nor a "seizure" within the meaning of the Fourth Amendment. We agree that the mere recording of the serial numbers did not constitute a seizure. To be sure, that was the first step in a process by which respondent was eventually deprived of the stereo equipment. In and of itself, however, it did not "meaningfully interfere" with respondent's possessory interest in either the serial numbers or the equipment, and therefore did not amount to a seizure. See Maryland v. Macon, 472 U.S. 463, 469 (1985).
Officer Nelson's moving of the equipment, however, did constitute a "search" separate and apart from the search for [480 U.S. 321, 325] the shooter, victims, and weapons that was the lawful objective of his entry into the apartment. Merely inspecting those parts of the turntable that came into view during the latter search would not have constituted an independent search, because it would have produced no additional invasion of respondent's privacy interest. See Illinois v. Andreas, 463 U.S. 765, 771 (1983). But taking action, unrelated to the objectives of the authorized intrusion, which exposed to view concealed portions of the apartment or its contents, did produce a new invasion of respondent's privacy unjustified by the exigent circumstance that validated the entry. This is why, contrary to JUSTICE POWELL'S suggestion, post, at 333, the "distinction between
looking' at a suspicious object in plain view andmoving' it even a few inches" is much more than trivial for purposes of the Fourth Amendment. It matters not that the search uncovered nothing of any great personal value to respondent - serial numbers rather than (what might conceivably have been hidden behind or under the equipment) letters or photographs. A search is a search, even if it happens to disclose nothing but the bottom of a turntable.III
The remaining question is whether the search was "reasonable" under the Fourth Amendment.
On this aspect of the case we reject, at the outset, the apparent position of the Arizona Court of Appeals that because the officers' action directed to the stereo equipment was unrelated to the justification for their entry into respondent's apartment, it was ipso facto unreasonable. That lack of relationship always exists with regard to action validated under the "plain view" doctrine; where action is taken for the purpose justifying the entry, invocation of the doctrine is superfluous. Mincey v. Arizona, supra, in saying that a warrantless search must be "strictly circumscribed by the exigencies which justify its initiation," 437 U.S., at 393 (citation omitted), was addressing only the scope of the primary [480 U.S. 321, 326] search itself, and was not overruling by implication the many cases acknowledging that the "plain view" doctrine can legitimate action beyond that scope.
We turn, then, to application of the doctrine to the facts of this case. "It is well established that under certain circumstances the police may seize evidence in plain view without a warrant," Coolidge v. New Hampshire, 403 U.S., at 465 (plurality opinion) (emphasis added). Those circumstances include situations "[w]here the initial intrusion that brings the police within plain view of such [evidence] is supported . . . by one of the recognized exceptions to the warrant requirement," ibid., such as the exigent-circumstances intrusion here. It would be absurd to say that an object could lawfully be seized and taken from the premises, but could not be moved for closer examination. It is clear, therefore, that the search here was valid if the "plain view" doctrine would have sustained a seizure of the equipment.
There is no doubt it would have done so if Officer Nelson had probable cause to believe that the equipment was stolen. The State has conceded, however, that he had only a "reasonable suspicion," by which it means something less than probable cause. See Brief for Petitioner 18-19. * We have not ruled on the question whether probable cause is required in order to invoke the "plain view" doctrine. Dicta in Payton v. New York, 445 U.S. 573, 587 (1980), suggested that the standard of probable cause must be met, but our later opinions in Texas v. Brown, 460 U.S. 730 (1983), explicitly regarded the issue as unresolved, see id., at 742, n. 7 (plurality opinion); id., at 746 (STEVENS, J., concurring in judgment).
We now hold that probable cause is required. To say otherwise would be to cut the "plain view" doctrine loose from its theoretical and practical moorings. The theory of that doctrine consists of extending to nonpublic places such as the [480 U.S. 321, 327] home, where searches and seizures without a warrant are presumptively unreasonable, the police's longstanding authority to make warrantless seizures in public places of such objects as weapons and contraband. See Payton v. New York, supra, at 586-587. And the practical justification for that extension is the desirability of sparing police, whose viewing of the object in the course of a lawful search is as legitimate as it would have been in a public place, the inconvenience and the risk - to themselves or to preservation of the evidence - of going to obtain a warrant. See Coolidge v. New Hampshire, supra, at 468 (plurality opinion). Dispensing with the need for a warrant is worlds apart from permitting a lesser standard of cause for the seizure than a warrant would require, i. e., the standard of probable cause. No reason is apparent why an object should routinely be seizable on lesser grounds, during an unrelated search and seizure, than would have been needed to obtain a warrant for that same object if it had been known to be on the premises.
We do not say, of course, that a seizure can never be justified on less than probable cause. We have held that it can - where, for example, the seizure is minimally intrusive and operational necessities render it the only practicable means of detecting certain types of crime. See, e. g., United States v. Cortez, 449 U.S. 411 (1981) (investigative detention of vehicle suspected to be transporting illegal aliens); United States v. Brignoni-Ponce, 422 U.S. 873 (1975) (same); United States v. Place, 462 U.S. 696, 709 , and n. 9 (1983) (dictum) (seizure of suspected drug dealer's luggage at airport to permit exposure to specially trained dog). No special operational necessities are relied on here, however - but rather the mere fact that the items in question came lawfully within the officer's plain view. That alone cannot supplant the requirement of probable cause.
The same considerations preclude us from holding that, even though probable cause would have been necessary for a seizure, the search of objects in plain view that occurred here [480 U.S. 321, 328] could be sustained on lesser grounds. A dwelling-place search, no less than a dwelling-place seizure, requires probable cause, and there is no reason in theory or practicality why application of the "plain view" doctrine would supplant that requirement. Although the interest protected by the Fourth Amendment injunction against unreasonable searches is quite different from that protected by its injunction against unreasonable seizures, see Texas v. Brown, supra, at 747-748 (STEVENS, J., concurring in judgment), neither the one nor the other is of inferior worth or necessarily requires only lesser protection. We have not elsewhere drawn a categorical distinction between the two insofar as concerns the degree of justification needed to establish the reasonableness of police action, and we see no reason for a distinction in the particular circumstances before us here. Indeed, to treat searches more liberally would especially erode the plurality's warning in Coolidge that "the `plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incrimination at last emerges." 403 U.S., at 466 . In short, whether legal authority to move the equipment could be found only as an inevitable concomitant of the authority to seize it, or also as a consequence of some independent power to search certain objects in plain view, probable cause to believe the equipment was stolen was required.
JUSTICE O'CONNOR'S dissent suggests that we uphold the action here on the ground that it was a "cursory inspection" rather than a "full-blown search," and could therefore be justified by reasonable suspicion instead of probable cause. As already noted, a truly cursory inspection - one that involves merely looking at what is already exposed to view, without disturbing it - is not a "search" for Fourth Amendment purposes, and therefore does not even require reasonable suspicion. We are unwilling to send police and judges into a new thicket of Fourth Amendment law, to seek a creature of uncertain description that is neither a "plain view" inspection nor [480 U.S. 321, 329] yet a "full-blown search." Nothing in the prior opinions of this Court supports such a distinction, not even the dictum from Justice Stewart's concurrence in Stanley v. Georgia, 394 U.S. 557, 571 (1969), whose reference to a "mere inspection" describes, in our view, close observation of what lies in plain sight.
JUSTICE POWELL'S dissent reasonably asks what it is we would have had Officer Nelson do in these circumstances. Post, at 332. The answer depends, of course, upon whether he had probable cause to conduct a search, a question that was not preserved in this case. If he had, then he should have done precisely what he did. If not, then he should have followed up his suspicions, if possible, by means other than a search - just as he would have had to do if, while walking along the street, he had noticed the same suspicious stereo equipment sitting inside a house a few feet away from him, beneath an open window. It may well be that, in such circumstances, no effective means short of a search exist. But there is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all. Our disagreement with the dissenters pertains to where the proper balance should be struck; we choose to adhere to the textual and traditional standard of probable cause.
The State contends that, even if Officer Nelson's search violated the Fourth Amendment, the court below should have admitted the evidence thus obtained under the "good faith" exception to the exclusionary rule. That was not the question on which certiorari was granted, and we decline to consider it.
For the reasons stated, the judgment of the Court of Appeals of Arizona is
Affirmed. http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=480&invol=321
Cant you think of anything to write for yourself? instead of copying and pasting someone else s work??
The question that you need to ask is: why did I just do that? The clock is a-ticking...
I couldn't agree more the interview was chilling.
He should be impeached for being morally unfit.
Cite as: 557 U. S. __ (2009) 1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
IN RE TROY ANTHONY DAVIS
ON PETITION FOR WRIT OF HABEAS CORPUS
No. 08–1443. Decided August 17, 2009
JUSTICE SCALIA, with whom JUSTICE THOMAS joins,dissenting. Today this Court takes the extraordinary step—one nottaken in nearly 50 years—of instructing a district court toadjudicate a state prisoner’s petition for an original writ of habeas corpus. The Court proceeds down this path even though every judicial and executive body that has exam-ined petitioner’s stale claim of innocence has been unper-suaded, and (to make matters worst) even though it would be impossible for the District Court to grant any relief. Far from demonstrating, as this Court’s Rule 20.4(a) requires, “exceptional circumstances” that “warrant the exercise of the Court’s discretionary powers,” petitioner’s claim is a sure loser. Transferring his petition to the District Court is a confusing exercise that can serve nopurpose except to delay the State’s execution of its lawful criminal judgment. I respectfully dissent.
Eighteen years ago, after a trial untainted by constitu-tional defect, a unanimous jury found petitioner Troy Anthony Davis guilty of the murder of Mark AllenMacPhail. The evidence showed that MacPhail, an off-duty police officer, was shot multiple times after respond-ing to the beating of a homeless man in a restaurant parking lot. Davis v. State, 263 Ga. 5, 5–6, 426 S. E. 2d 844, 845–846, cert. denied, 510 U. S. 950 (1993). Davis admits that he was present during the beating of the homeless man, but he maintains that it was one of his companions who shot Officer MacPhail. It is this claim of “actual innocence”—the same defense Davis raised at trial
but now allegedly supported by new corroborating affida-vits—that Davis raises as grounds for relief. And (pre-sumably) it is this claim that the Court wants the DistrictCourt to adjudicate once the petition is transferred.
Even if the District Court were to be persuaded byDavis’s affidavits, it would have no power to grant relief. Federal courts may order the release of convicted stateprisoners only in accordance with the restrictions imposedby the Antiterrorism and Effective Death Penalty Act of1996. See Felker v. Turpin, 518 U. S. 651, 662 (1996). Insofar as it applies to the present case, that statute bars the issuance of a writ of habeas corpus “with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim . . . resulted in a decision that was contrary to, orinvolved an unreasonable application of, clearly estab-lished Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. §2254(d)(1).
The Georgia Supreme Court rejected petitioner’s “ac-tual-innocence” claim on the merits, denying his extraor-dinary motion for a new trial. Davis can obtain relief onlyif that determination was contrary to, or an unreasonable application of, “clearly established Federal law, as deter-mined by the Supreme Court of the United States.” It most assuredly was not. This Court has never held that the Constitution forbids the execution of a convicted de-fendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that ques-tion unresolved, while expressing considerable doubt thatany claim based on alleged “actual innocence” is constitu-tionally cognizable. See Herrera v. Collins, 506 U. S. 390, 400–401, 416–417 (1993); see also House v. Bell, 547 U. S. 518, 555 (2006); District Attorney’s Office for Third Judi-cial Dist. v. Osborne, ante, at 18. A state court cannot possibly have contravened, or even unreasonably applied, clearly established Federal law, as determined by the Supreme Court of the United States,” by rejecting a type of claim that the Supreme Court has not once accepted as valid.
JUSTICE STEVENS says that we need not be deterred by the limitations that Congress has placed on federal courts’ authority to issue the writ, because we cannot rule out the possibility that the District Court might find those limita-tions unconstitutional as applied to actual-innocence claims. Ante, at 2 (concurring opinion). (This is not apossibility that Davis has raised, but one that JUSTICE STEVENS has imagined.) But acknowledging that possibil-ity would make a nullity of §2254(d)(1). There is no sound basis for distinguishing an actual-innocence claim fromany other claim that is alleged to have produced a wrong-ful conviction. If the District Court here can ignore§2254(d)(1) on the theory that otherwise Davis’s actual-innocence claim would (unconstitutionally) go unad-dressed, the same possibility would exist for any claim going beyond “clearly established Federal law.”
The existence of that possibility is incompatible with the many cases in which we have reversed lower courts fortheir failure to apply §2254(d)(1), with no consideration of constitutional entitlement. See, e.g., Knowles v. Mir-zayance, 556 U. S. , (2009) (slip op., at 9–10); Wright v. Van Patten, 552 U. S. 120, __ (2008) (slip op., at 5–6) (per curiam); Carey v. Musladin, 549 U. S. 70, 76–77 (2006). We have done so because the argument that the Constitution requires federal-court screening of all state convictions for constitutional violations is frivolous. For much of our history, federal habeas review was not avail-able even for those state convictions claimed to be in viola-tion of clearly established federal law. See Stone v. Pow-ell, 428 U. S. 465, 474–476 (1976); Bator, Finality inCriminal Law and Federal Habeas Corpus for State Pris-oners, 76 Harv. L. Rev. 441, 465–466 (1963); L. Yackle,
Postconviction Remedies §19 (1981). It seems to me im-proper to grant the extraordinary relief of habeas corpus on the possibility that we have approved—indeed, di-rected—the disregard of constitutional imperatives in the past. If we have new-found doubts regarding the constitu-tionality of §2254(d)(1), we should hear Davis’s applicationand resolve that question (if necessary) ourselves.*
Transferring this case to a court that has no power togrant relief is strange enough. It becomes stranger still when one realizes that the allegedly new evidence we shunt off to be examined by the District Court has already been considered (and rejected) multiple times. Davis’s postconviction “actual-innocence” claim is not new. Most of the evidence on which it is based is almost a decade old. A State Supreme Court, a State Board of Pardons and Paroles, and a Federal Court of Appeals have all consid-ered the evidence Davis now presents and found it lacking. (I do not rely upon the similar conclusion of the Georgia trial court, since unlike the others that court relied sub-stantially upon Georgia evidentiary rules rather than the unpersuasiveness of the evidence Davis brought forward. See App. to Pet. for Writ of Habeas Corpus 57a–63a.)
The Georgia Supreme Court “look[ed] beyond bare legal principles that might otherwise be controlling to the core question of whether a jury presented with Davis’s alleg-edly-new testimony would probably find him not guilty or give him a sentence other than death.” Davis v. State, 283 Ga. 438, 447, 660 S. E. 2d 354, 362 (2008). After analyz-ing each of Davis’s proffered affidavits and comparingthem with the evidence adduced at trial, it concluded that it was not probable that they would produce a different result. See id., at 440–447, 660 S. E. 2d, at 358–363.
When Davis sought clemency before the Georgia Board of Pardons and Paroles, that tribunal stayed his executionand “spent more than a year studying and considering [his] case.” Brief in Opposition 14–15 (statement of Board of Pardons and Paroles). It “gave Davis’ attorneys anopportunity to present every witness they desired to sup-port their allegation that there is doubt as to Davis’ guilt”;it “heard each of these witnesses and questioned them closely.” Id., at 15. It “studied the voluminous trial tran-script, the police investigation report and the initial statements of the witnesses,” and “had certain physical evidence retested and Davis interviewed.” Ibid. “After an exhaustive review of all available information regarding the Troy Davis case and after considering all possible reasons for granting clemency, the Board . . . determinedthat clemency is not warranted.” Ibid.
After reviewing the record, the Eleventh Circuit came toa conclusion “wholly consonant with the repeated conclu-sions of the state courts and the State Board of Pardons and Paroles.” 565 F. 3d 810, 825 (2009). “When we view all of this evidence as a whole, we cannot honestly say that Davis can establish by clear and convincing evidence thata jury would not have found him guilty of Officer MacPhail’s murder.” Id., at 826.
Today, without explanation and without any meaningfulguidance, this Court sends the District Court for theSouthern District of Georgia on a fool’s errand. That court is directed to consider evidence of actual innocence which has been reviewed and rejected at least three times, and which, even if adequate to persuade the District Court,cannot (as far as anyone knows) form the basis for any relief. I truly do not see how the District Court can dis-cern what is expected of it. If this Court thinks it possible that capital convictions obtained in full compliance withlaw can never be final, but are always subject to being setaside by federal courts for the reason of “actual innocence,” it should set this case on our own docket so that we can (ifnecessary) resolve that question. Sending it to a districtcourt that “might” be authorized to provide relief, but then again “might” be reversed if it did so, is not a sensible way to proceed. http://www.supremecourt.gov/opinions/08pdf/08-1443Scalia.pdf
MORGAN: Let's take a short break.
And when we come back, I want to ask you why you think burning the American flag should be allowed, even though personally, you'd throw them all in jail.
(COMMERCIAL BREAK)
MORGAN: Back with my special guests, Justice Antonin Scalia and Bryan Garner, who is the co-author of his book.
I left the viewers on a cliffhanger. Why you believe that people who burn the flag in America should be allowed to do so? And yet you personally, if you had the chance, would send them all in jail?
SCALIA: Yes, if I were king, I -- I would not allow people to go about burning the American flag. However, we have a First Amendment, which says that the right of free speech shall not be abridged. And it is addressed, in particular, to speech critical of the government. I mean, that was the main kind of speech that tyrants would seek to suppress.
Burning the flag is a form of expression. Speech doesn't just mean written words or oral words. It could be semaphore. And burning a flag is a symbol that expresses an idea -- I hate the government, the government is unjust, whatever.
MORGAN: If you're not sure, then, in the end, doesn't -- no one knows the Constitution better than you do. Doesn't it come down to your personal interpretation of the Constitution? If it isn't clear- cut, which it clearly isn't, you, in the end, have to make...
SCALIA: No, no, don't...
MORGAN: -- an -- an opinion, don't you?
SCALIA: Well, don't forget this person has to be convicted by a jury of 12 people who unanimously have to find that he was inciting to riot. So, you know, it's not all up to me.
It would be up to me to say that there was not enough evidence for the jury to find that, perhaps. But ultimately, the -- the right of jury trial is -- is the protection...
(CROSSTALK)
MORGAN: What is the difference speech about insurrection being unacceptable and speech as you're burning a flag? Isn't that a form of insurrection?
SCALIA: No. No.
MORGAN: Isn't it?
SCALIA: No. No. No. That -- that's -- that's just saying we -- we -- we dislike the government. It's not urging people to take up arms against the government. That's something quite different. That's what I mean by speech urging insurrection. Speech inciting to riot or inciting to...
GARNER: Or shouting "Fire!" in a theater. What about that?
MORGAN: One of the more complex things about you, just -- which I -- I think is -- has been admired and criticized in equal measure, the case I would put to you, where I think it's interesting where you dissented against something where I think common sense would have dictated the opposite, was "Maryland v. Craig," a young girl who had been abused by a child molester. And she gave evidence through closed-circuit television. She didn't appear in court.
And the abuser argued that this was unconstitutional, because, under the confrontation element of the Constitution, he should have been allowed to be face-to-face with his victim.
SCALIA: Right.
MORGAN: I'm back with my special guest, Justice Antonin Scalia and his co-author, Bryan Garner.
Let's turn to "Roe v. Wade," because you, Justice Scalia, you had very strong opinions about this at the time. I know you do now.
Why were you so violently opposed to it?
SCALIA: I -- I wouldn't say violently. I'm a peaceful man.
(LAUGHTER)
SCALIA: You mean adamantly opposed.
MORGAN: Adamantly.
SCALIA: Adamantly.
Basically because the theory that was expounded to impose that decision was a theory that does not make any sense, and that is namely the theory of substantive due process. There's a due process clause in the Constitution, which says that no person shall be deprived of life, liberty or property without due process. That is obviously a guarantee not of -- not of life, not of liberty, not of property. You can be deprived of all of them. But not without due process.
My court, in recent years, has invented what is called substantive due process by simply saying some liberties are so important that no process would suffice to take them away.
And that was the theory used in "Roe v. Wade." And it -- it's a theory that is simply a lie. There -- there's -- the world is divided into substance and procedure. MORGAN: Should abortion be illegal, in your eyes?
SCALIA: Should it be illegal?
Well, I -- I don't -- I don't have public views on what should be illegal and what shouldn't. I have public views on what the Constitution prohibits and what it doesn't prohibit.
MORGAN: But I mean, the Constitution, when they framed it, they didn't even allow women to -- to have the right to vote. I mean, they gave women no rights.
SCALIA: Oh, come on, no rights?
MORGAN: Did they?
SCALIA: Of -- of course. They were entitled to due process of law.
GARNER: All kinds of rights.
SCALIA: You couldn't -- you couldn't send them to prison without the same kind of a trial that a man would get.
MORGAN: But the -- but, again, it comes back to changing times. The founding fathers were never going to have any reason, at that time, to consider a woman's right to keep her baby or to have an abortion.
It wouldn't have even entered their minds, would it?
SCALIA: What -- I -- I don't know why. Why wouldn't it?
MORGAN: Because at the time, it was...
SCALIA: They -- they didn't have wives and daughters that they cared about?
MORGAN: They did, but it was not an issue that they would ever consider framing in the Constitution.
SCALIA: Oh, I don't know that...
MORGAN: But when women began to take charge in the last century, of their lives and their rights and so on, and began to fight for these, everybody believed that was the right thing to do, didn't they? I mean, why would you be instinctively against that?
SCALIA: My view is regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad, regardless of how you come out on that, my only point is the Constitution does not say anything about it. It leaves it up to democratic choice.
Some states prohibited it, some states didn't. What Roe v. Wade -- Wade said was that no state can prohibit it. That is simply not in the Constitution. It was one of those many things -- most things in the world -- left to democratic choice. And -- and the court does -- does not do democracy a favor when it takes an issue out of democratic choice...
MORGAN: OK.
SCALIA: Simply because it thinks--
MORGAN: But how do...
SCALIA: -- it should not be there.
MORGAN: But how -- how do you, as a conservative Catholic, how do you not bring your personal sense of what is right and wrong to that kind of decision? Because clearly, as a conservative Catholic, you're going to be fundamentally against abortion.
SCALIA: Just as the pro-choice people say the Constitution prohibits the banning of abortion, so, also, the pro-life people say the opposite. They say that the Constitution requires the banning of abortion, because you're depriving someone of life without due process of law.
I reject that argument just as I reject the other one. The Constitution, in fact, says nothing at all about the subject. It is left to democratic choice.
Now, regardless of what my views as a Catholic are, the Constitution says nothing about it. http://transcripts.cnn.com/TRANSCRIPTS/1207/18/pmt.01.html
I couldn't say it any better. The right of a privacy for an abortion is not in the constitution and the right to ban it is neither. It should have been decided by the state's or by law at the Federal level.
It doesn't say the right to privacy period. Not just for the things that one may not agree with. The right to privacy is implied.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Thanks for the link:
"SCALIA: Yes, if I were king, I -- I would not allow people to go about burning the American flag. However, we have a First Amendment, which says that the right of free speech shall not be abridged. And it is addressed, in particular, to speech critical of the government. I mean, that was the main kind of speech that tyrants would seek to suppress."
All in one response, "BTW if I were King, I'd be a tyrant".
(on abortion)
"SCALIA: Should it be illegal?
Well, I -- I don't -- I don't have public views on what should be illegal and what shouldn't. I have public views on what the Constitution prohibits and what it doesn't prohibit."
"Oh I need to use a convenient lie now".
What happened to "If I were king"?
He isn't lying. You are taking things deliberately out of context.
To make sure I'm being clear, why could he have not just started out with "If i were King"?
How is that so? Is flag burning not a "legal issue" did he not express a public opinion (when it was safe to do so) then hid behind the lie that he doesn't do that when asked about abortion?
He is telling you point blank that he is not a king and there is the first amendment and, thus, could not make that call if he so desired. He also tells you that this is not even close to inciting a riot. He also says, point blank, that there is nothing in the constitution or the federal limitations that says anything about abortion- choice or none. Hence, originalist. His job is not to get involved in what boils down to writing the law but to find out if it is constitutional or not.
You don't have anything, facts.
When he says if I were king flag burning would be illegal how is that not a "public opinion on a legal issue", girl?
Because, facts, it's a non-issue. As far as he is concerned, it doesn't represent an issue. We have an early history of what constitutes an insurrection. So, if you are familiar with the Federalist papers and the anti-Federalists it isn't a legal opinion. He is an originalist.
I'm not saying it's a legal opinion, I'm saying it's an opinion period which he did express in spite of his supposed resistance to do so. How easily someones lies can tell you something of how they think, if it were truly as deeply held as he seemed to feel when asked about abortion then his natural tendency would have been not to give his opinion of flag burning even though it posed no real threat, when he sensed a threat if he spoke simple truth he changed his stance.
You are simply looking for something to pick at because you don't like the fact that he reads the law too narrowly and is an originalist.
That's fine. I have no love for originalists. However, this is nothing more than attempt to take someone that you know cannot respond and use him for a political tool. This is why they are appointed incidently.
He choose to present himself in the interview, it's not my fault I watched.
How much do you know about the Federalist papers and/or do you have any background in studying the constitution which would include supreme court cases?
I am not trying to be rude or slam you here.
and I'm not trying to talk about Scalia the Jurist, if i were i would start with Bush v Gore (which this is making me want to) what I'm pointing out is how comfortable he is with his lies, what the little things tells us about how he thinks, like for instance he could have said he would hope that the government executes its duties in such a manner as to not make citizens want to burn flags or some such thing. But his nature is reveled in the little things, how much can you hope for from Piers Morgan?
Then, why are you Nancy Grace-ing it?
You seem to want to take an indirect approach to Scalia the Jurist. He isn't lying.
He is an originalist.
People can say anything that they want and know that there can be no response. Sweet.
Early on weren't they pretty firm on the states holding elections and counting votes and what not?
And what is the problem now?
really? well like I said another post, on Bush v Gore, would be a better place to discuss his judicial dishonesty
what dishonesty?
I love you. I really do. But, there is no difference between this spin and Faux news.
are you familiar with Bush v Gore?
However here the dishonesty is what I have point out the pretending not to share an opinion depending on the question.
Yep. That case was a requirement.
You have nothing.
You don't like the fact that he is an originalist and you don't like his eyes. You are afraid that if the rethuglican is in office that he will appoint someone that is also an originalist and will read the law too narrowly. Fine.
You did notice that he made a point of saying it was Gore who brought it into "the courts" while skipping the part where it was Bush who brought it before his court? ie Bush v Gore
Ok, facts, what is the history of the cases and why would he say that? It was a total of three cases. Can you identify who did what during the steps?
indeed why would he identify anyone who brought a case before him why would it matter? yet he did several times,
as I recall Bush filed the first and third, Gore the second, the first two were state cases Bush took it to the feds, but there really has been very little written on the case, at least on the main, I remember how much more time CNN spent on the 9th circuit when they would rule on the pledge of allegiance as compared to the time they spent on Bush v Gore, after the decision was handed down, I did read one piece from a law professor he broke down how the five in the majority went against almost everything they had ever written, but it is an area I have not thought about for a bit, did you know Ted Olsen was there very early on, I watched it real time but never was reported
A "requirement" ;) OK chat later. Let me refresh myself on this originalist thing, I'm pretty comfortable saying Bush v Gore was decided in a very unoriginal way.
Yes, "requirement" ;). When you take a course, with a focus on constitutional law or a focus on civil rights law or even on theory/history etc., the syllabus contains a list of cases. You will dissect each and every case on this list and then some. This case was a "requirement".
Wow, just wow. Thanks for letting us know who you are. I would never have imagined that you were a 99.9% true disinfo spook. Now we see the truth.
Well genius, why did the court say the Bush v Gore ruling applied only to this case (set aside the fact that that's a constitutional impossibility)? I'm not really interested in your tortured answer. I'm simply happy to know who and what you are.
hmmm, thank you?
we need more scalias
dont vote for Obama - he appointed women !
I kept telling myself to turn away but I made it till he started talking about "Scalia the man". I couldn't believe it when he moved right from damn right if I were in charge flag burning would be outlawed to tyrants outlaw flag burning!
It was like a car crash right? You couldn't turn away.
yes that and I was looking at his reactions and those cold cold eyes...
Shark eyes. He's not human. He's a robot.
I had a ten plus year "friendship" with a sociopath, he was very close to my family, so I got a pretty good feel for it (about 4% of people are) and I would say for sure Romney is, Bush was and Scalia may be.
Don't doubt that for a minute.
Saw some study that stated most execs in corp America are sociopaths, (or psycopaths, I forget which)
Sociopaths are far more common, a little more so that real ADD and a little less than left handed, I believe, they are all genetic conditions and are therefore pretty much according to rules of probability.
Aaaah. Very good.
Thx
Scalia is probably the worst. He seems easily to be gettin' senile.
He is certainly old enough. God I hope he gets replaced by Pres Obama.
Chief Justice John Glover Roberts, Jr. is 55 (DOB: 27 January, 1955).
Justice Antonin Gregory Scalia is 74 (DOB: 11 March, 1936).
Justice Anthony McLeod Kennedy is 73 (DOB: 23 July, 1936).
Justice Clarence Thomas is 61 (DOB: 23 June, 1948).
Justice Ruth Joan Bader Ginsburg is 77 (DOB: 15 March, 1933).
Justice Stephen Gerald Breyer is 71 (DOB: 14 August 1938).
Justice Samuel Anthony Alito, Jr. is 59 (DOB: 1 April, 1950).
Justice Sonia Sotomayor is 56 (DOB: 25 June, 1954).
Justice Elena Kagan is 50 (DOB: 28 April, 1960).
If willard replaces Ginsberg, we are done - roe is just the first
if Obama replaces Scalia, the train will be back on track
if Obama replaces Kennedy, the train will be back on track
The ages are off a couple of years for instance Breyer is 73.
Thanks for the info I have been looking at this, it is really scary to think that Romney could name Ginsburg's replacement, she turns 80 in March.
Excellent info. Thx.
The most important, longest lasting effect of the next Pres (any pres).
A right wing loss in this Pres election could be the death blow of the damaging right wing drift ofthe last 30 years.
It is critical that we replace pro 1% conservatives w. pro 99% progressives, & protest for change that benefits the 99%.
Those that rail against flag burning should also rail against flag wearing because both are illegal. But we don't do that do we? How often do we see people adorned, self emblazoned, in some representation of the red, white, and blue? As if dressed in clothing made of flags, as if cloaked in our flag?
It is absolutely illegal to deface the flag in any manner.
But we stand upon principle, upon an ideal; Scalia is absolutely correct to state that our admiration of symbolism should not be placed above freedom of expression.
"Worship me, and this symbolic representation of me, or I shall smite you"; this is something only kings do...
He is not concerned with matters of law, the subject of law; he is concerned with constitutional application.
He is not to bend to the political will or opinion on "matters," only to rule on the legitimate, i.e., "constitutional," application of law.
Scalia is brilliant; we need more Supreme Court judges that place their responsibility to this nation, and a perfect expertise in constitutional application, above political affiliation or opinion.
To me the choice is clear - be good at what you do - because the shadow of one's reputation is often far greater than the height of the tree.
Why would a "brilliant" man tell such an obvious lie? Right after commenting on a legal issue (flag burning) he claims to not give public opinion on legal matters? What a hoot and what a liar!!!
But telling us that if he were in charge he would be a tyrant that was a rare moment of honesty.
Because it is the proper place for a Supreme Court judge; that's why.
Burning the flag is illegal; he doesn't voice an opinion on the matter, he judges the law for its constitutionality - can our legislative and executive bodies impose their will in this manner without violating the constitutional rights of others? That is his concern.
And I've had this argument with many 1950s era vets - to outlaw flag burning, as symbolic expression, however repugnant it might be, is akin to saying you must worship my likeness, or I will kill you.
I will answer the question for him: his opinion on abortion is Roe Vs Wade, no more, no less. We know this because he places constitutionality above personal opinion.
The beauty of law in a Nation of Law is its dispassionate construct. If it is wrong, change it. But you cannot violate the rights of others in this legislative creation.
A liberal judge is NOT a constitutional judge, he is a defense attorney, and nothing more, because the Constitution was intended to afford some maximum freedom; you cannot apply liberal thought to impose change without the grant of rights to the favor of another. Those who do have an agenda, and it is a minority agenda; if it were not a minority trying to impose their will on a majority, it would not have landed in the Supreme Court.
Read the transcript he did express an opinion on flag burning them lied and said he doesn't do such things, that's my point. He also told us that if he could be, he would be a tyrant.
If I could be, I would be also. In fact, I have already devised a plan to take the entire government using tolerance against you.
The hand of politics is slow but eventually I will emerge as leader of the both the Free - and the soon-to-be Un-Free - World.
And I shall rule for forever and a day.
I'll take another look... but I will continue to support Scalia and those like him, regardless... do the job, that's what I expect from you.