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Hey, this has hit the top of my list for articles to try to get to FA status, and I am hoping to gradually improve the with a goal of getting it to FA by the end of March or so. Hope everyone can pitch in and help.--[[User:Wehwalt|Wehwalt]] ([[User talk:Wehwalt|talk]]) 18:35, 12 January 2010 (UTC)
Hey, this has hit the top of my list for articles to try to get to FA status, and I am hoping to gradually improve the with a goal of getting it to FA by the end of March or so. Hope everyone can pitch in and help.--[[User:Wehwalt|Wehwalt]] ([[User talk:Wehwalt|talk]]) 18:35, 12 January 2010 (UTC)

== "Judicial restraint" ==

The following passage from our article got me thinking:
<blockquote>Because Scalia's approach to precedent has the intent, if not the effect, of deferring to popularly enacted statutes in many cases, he has drawn praise as a judicial restraintist but criticism as a majoritarian.</blockquote>
It seems overly general, though I understand that the intention is to summarize a number of viewpoints. In my understanding, the major criticisms of Scalia's approach to precedent are based on the perception that he consistently determines the "original intent" of the Founders to line up with his personal social and political beliefs. That is, he's criticized for judicial ''activism'' despite his rhetoric on restraint and originalism.<p>This criticism has been voiced from the center-left for decades (e.g. [http://www.tnr.com/article/politics/the-leader-the-opposition Rosen 1993]), but it's also been voiced from the right - that is, it's non-denominational. For instance, his opinion in ''[[District of Columbia v. Heller]]'' was much remarked-upon in this regard. [[Richard Posner]], as close to a patron saint of the American judicial right as exists, criticized Scalia's majority opinion in the case as exactly opposite to that which true "originalism" would dictate. In effect, Posner accused Scalia of allowing his politically conservative ideology to trump his stated commitment to judicial restraint ([http://www.tnr.com/article/books/defense-looseness Posner 2008]). He even compared Scalia's reasoning to that of the majority in ''Roe v. Wade'', a comparison likely intended to be uncomplimentary. [[J. Harvie Wilkinson]], another prominent conservative jurist, castigated Scalia's opinion on the same grounds, also comparing its reasoning to ''Roe'', the antithesis of "originalism" ([http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1265118 Wilkinson 2009]). See also mainstream news sources, e.g. [http://www.nytimes.com/2008/10/21/washington/21guns.html New York Times 2008]. I haven't read Biskupic's book, but according to its ''Times'' review, she raises the same apparent contradiction, and further notes:
<blockquote>There are other conservative critics as well. The former judge Michael McConnell, the leading conservative scholar of the original understanding of the Civil War amendments, has called into question Scalia’s historical claims about religious freedom and affirmative action. These critiques are devastating, but Scalia has not responded to them.[http://www.nytimes.com/2010/01/03/books/review/Rosen-t.html New York Times 2009]</blockquote>
I'm not sure about the "right" way to cover this matter, or even how much coverage it warrants. I do think that if we're going to summarize "criticism" of Scalia, even if we intend to do so only in very general terms, then we can do better than the current wording. '''[[User:MastCell|MastCell]]'''&nbsp;<sup>[[User Talk:MastCell|Talk]]</sup> 23:11, 12 January 2010 (UTC)

Revision as of 23:12, 12 January 2010

Bot-created subpage

A temporary subpage at User:Polbot/fjc/Antonin Scalia was automatically created by a perl script, based on this article at the Biographical Directory of Federal Judges. The subpage should either be merged into this article, or moved and disambiguated. Polbot (talk) 20:15, 5 March 2009 (UTC)[reply]

What are Scalia's personal political views?

I assume, but could not find confirmation in this article, that Scalia's personal political views are conservative / Republican. For example, I assume that not only does he believe there is no right to privacy in the Constitution, but also that he personally supports pro-life, anti-gay marriage candidates. I wonder if someone could add a portion of this article discussing his personal political views. The reason why I bring this up is that Scalia has criticized believers in the so-called "living Constitution" for creating a Constitution that "means whatever you want it to mean" (paraphrase). It seems that if most of Scalia's court opinions favor the conservative viewpoint, and he is himself conservative, then the same criticism can, to a degree, be leveled at him. I believe that Scalia has spoken in the past of particular cases in which according to his judicial philosophy of textualism he was forced to rule in a manner he did not like; but I don't remember what cases Scalia cited as examples of that. In any case, I think a section or sections would be interesting that addressed Scalia's criticism of "living Constitution" judges, Scalia's personal political views, and the degree to which his judicial philosophy of textualism allows him to vote for the conservative position in a relatively consistent manner. 96.255.143.51 (talk) 16:45, 28 April 2009 (UTC)[reply]

Scalia and judicial activism

Scalia has received significant criticism in reliable sources for his own judicial activism. [1], [2], [3], [4] (a small sample), yet the article characterizes him simply as a passionate critic of the idea of a Living Constitution. How best to remedy this discrepancy? Dlabtot (talk) 17:28, 1 May 2009 (UTC)[reply]


Correction Needed?

The 'not' in this sentence appears wrong:

That Scalia would uphold some and overrule other precedents that contradict his judicial philosophy is an apparent inconsistency that has led Scalia's critics to note that the written constitution is not silent on precedent, and they conclude that originalism cannot be reconciled with stare decisis.


A quote by Scalia that is relevant:

"[A]lmost every originalist would adulterate [originalism]with the doctrine of stare decisis,"1
because "most originalists are faint-hearted."2

1. Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 861 (1989).

2. Id. at 862.


Related text: http://www.constitution.org/lrev/glawson/glawson_mucapr.htm


Nantucketnoon (talk) 18:34, 1 May 2009 (UTC)[reply]

Health

Would it be appropriate to include a section concerning his health. I know this would be an ever chaning issue, but many people would be interested in a predictive guess of how long he will probably serve. Am I off base? Just thought I'd throw it out there? Jefferybott (talk) 00:10, 2 May 2009 (UTC)[reply]

A Scalia death-watch? I don't think so. Dlabtot (talk) 00:37, 2 May 2009 (UTC)[reply]

Advocacy in the lead

See this diff [5].

The problem with this isn't that it's not well referenced. It clearly is. The problem is that we haven't even gotten out of the lead and we are already starting the advocacy. The lead should stand alone as a concise overview of the article. This criticism should definitely be in the body, but putting it in the lead is undue weight, drawing the reader's attention away from the overview of the subject. --causa sui talk 21:43, 27 May 2009 (UTC)[reply]

While it may score rhetorical points to label some viewpoints 'advocacy', it doesn't really have any meaning in this context. It certainly would be undue weight to assert that Scalia is "a vigorous proponent of textualism in statutory interpretation and originalism in constitutional interpretation" without noting the vigorous disagreement that many have with the viewpoint that his actions are consistent with this assertion.
Richard Epstein, a professor of law at the University of Chicago and a senior fellow at the Hoover Institution is engaging in 'advocacy'? Of what sort? Dlabtot (talk) 21:56, 27 May 2009 (UTC)[reply]
I'm not trying to score rhetorical points. I'm trying to improve the article. --causa sui talk 22:38, 27 May 2009 (UTC)[reply]
Since I am already required to assume good faith, your assertion of good faith adds nothing to the conversation. Do you have anything substantive to add in response to my comments? Dlabtot (talk) 03:18, 28 May 2009 (UTC)[reply]
I want to actually assume good faith, not act within its boundaries because it's required. As such I have to assume that you don't know how rudely you are coming across here. --causa sui talk 04:02, 28 May 2009 (UTC)[reply]
Do you have any comments to make about this Wikipedia article? You could, for instance, answer my question: you apparently accused Richard Epstein of 'advocacy'... what did you mean by that? By expressing his viewpoint about Scalia's judicial activism, what was he 'advocating' for? Dlabtot (talk) 04:26, 28 May 2009 (UTC)[reply]

I don't have a problem with the criticism itself, but I think it's undue weight to have it feature so prominently in the lead. Maybe it could be moved somewhere else? --causa sui talk 20:31, 29 May 2009 (UTC)[reply]

Well, we don't have a policy that states the lead section should be only laudatory. But this material certainly should also be expanded elsewhere in the article - these three references only scratch the surface. Dlabtot (talk) 20:51, 29 May 2009 (UTC)[reply]
My reason for wanting it to be moved elsewhere isn't because I'm citing policy somewhere, but because I think it would improve the article. --causa sui talk 22:58, 29 May 2009 (UTC)[reply]
Yes, we are all trying to improve the articles. No need to keep repeating that. Dlabtot (talk) 02:39, 30 May 2009 (UTC)[reply]
I'm not sure. I'm confused by your point that policy doesn't obligate us to do this. Of course it doesn't; but it would improve the article if we did that. I'm trying to reorient our attention away from the policy and back onto what is best for the article. --causa sui talk 00:08, 31 May 2009 (UTC)[reply]
It really is pointless and distracting to repeat over and over and over that you want what is best for the article. Please stop doing that. I again acknowledge that you want to improve the article, ok? One way to improve the article, would be to expand on this material elsewhere in the article. But to simply delete it because you believe that the lead should not include material that some may consider to be criticism, would detract from the article. You may disagree - fine. Reasonable people may disagree. But if you must disagree, please do so without once again repeating that you are trying to improve the article. Dlabtot (talk) 00:26, 31 May 2009 (UTC)[reply]
Well, I was trying to explain that my reason for repeating it is that I'm not interested in what the policy says about this. Anyway, I think you're right that it should be mentioned somewhere else in the article, but not the lead. Why don't we move the content to some other section, like the section on his legal philosophy? --causa sui talk 00:29, 31 May 2009 (UTC)[reply]
I think you're right that it should be mentioned somewhere else in the article, but not the lead. Since I didn't say that, it seems that you don't actually think I'm right. What I did say is that it should be expanded on elsewhere in the article, but this short mention certainly does belong in the lead. Dlabtot (talk) 00:49, 31 May 2009 (UTC)[reply]

Well, we're talking past each other quite a bit, so maybe we should get some outside opinions. --causa sui talk 01:09, 31 May 2009 (UTC)[reply]

  • I'm not sure from whence the ideas comes that lead sections are supposed to be exclusively laudatory. That principle is certainly not a part of any of our policies. Dlabtot (talk) 02:30, 26 July 2009 (UTC)[reply]
  • I'm more inclined to agree with causa sui that the sentence belongs in another section. A line saying that Scalia is generally considered on the right of the court would be appropriate in the lede—and we have one (although I think such a statement merits at least one iron-clad citation, even if it is in the lede). If this point does remain where it is, however, it needs to be re-cast. It currently reads and a passionate critic of the idea of a Living Constitution, though critics maintain that his actions bear out a belief in judicial legislation from the right. The though indicates the succeeding point contradicts the preceding one, but this is not the case. So that should be fixed. ÷seresin 02:56, 26 July 2009 (UTC)[reply]
Well, it does contradict the preceding point. Or at least it was meant to... looking at the sources, how would you characterize them? Dlabtot (talk) 03:05, 26 July 2009 (UTC)[reply]


"Judicial legislation from the right"

That criticism - which is itself dubious and does not seem to be echoed by many serious legal scholars - does not belong in the introduction. It belongs in the section on his legal and statutory philosophy, and I propose that it be moved there. Certain tyrannical administrators are preventing me from doing so. —Preceding unsigned comment added by 24.13.213.117 (talk) 04:13, 26 July 2009 (UTC)[reply]

Whether you think it is 'dubious' or not is irrelevant, and it is clearly well sourced. In fact, these few sources barely scratch the surface of the issue. I agree that it needs to be expanded elsewhere in the article, but the lead as well as the article is not intended to show only one viewpoint, it's is supposed to be WP:NPOV, which means all significant views that have been published by reliable sources. Dlabtot (talk) 18:12, 26 July 2009 (UTC)[reply]
The sources may warrant discussion in the article, but this kind of footnoted, standalone observation doesn't belong in the lede. Both WP:LEDE and MOS:INTRO make clear that the lede should serve as a short introduction to the article and its subject, and as a brief overview of the content of the article. To borrow user:Zaereth's locution from another context, the lede serves to (and should only) answer the question: "What is an Antonin Scalia?" To that end, most of the second paragraph could arguably be moved elsewhere into the main body of the article, and critics' views of him (which answer an entirely different question: "what do other people think of Antonin Scalia?" or "what are common criticisms of Antonin Scalia?" are valid questions, but they are not the same question as "what is an Antonin Scalia?") certainly ought to be. Cf. the lede for Barack Obama, which nowhere starts off on a tangent to say "though critics maintain that his actions..." etc. - Simon Dodd { U·T·C·WP:LAW } 17:11, 29 July 2009 (UTC)[reply]
We have a sentence that describes differing viewpoints of Scalia's judicial philosophy and actions. Obviously, limiting that to only one of those viewpoints would be entirely contrary to WP:NPOV. As far as moving most of the second paragraph... the lede is already too short, imho. Dlabtot (talk) 17:44, 29 July 2009 (UTC)[reply]
Too short? It strikes me as about right length-wise, while including too much content-wise, as noted above. I understand the NPOV claim, but it seems to me that the entire paragraph ought to be moved - good, bad, and indifferent - into the body of the article, and that the lede should run as follows:


- Simon Dodd { U·T·C·WP:LAW } 18:11, 29 July 2009 (UTC)[reply]

I don't get it, you said you "understand the NPOV claim", but your proposed change leaves one viewpoint, and removes the contrary viewpoint. Yes, some believe Scalia is "vigorously advancing textualism in statutory interpretation and originalism in constitutional interpretation" - and others disagree. Dlabtot (talk) 19:06, 29 July 2009 (UTC)[reply]
Actually, no one disagrees that he "vigorously advanc[es]" those positions - he does. You're conflating that with something quite different: His critics dispute whether he actually and/or consistently applies those philosophies in practice, and whether they are good or bad philosophies to have, but those are separate issues. Indeed, perhaps the best witnesses against you are his critics! Those who charge him with hypocrisy (expresssly or implicitly) are affirming that he advances textualism and originalism, because if he didn't, there couldn't be any hypocrisy in his supposed deviations from them.- Simon Dodd { U·T·C·WP:LAW } 22:10, 29 July 2009 (UTC)[reply]
LOL, that's a good one. I don't have the energy for this. Unwatched. Dlabtot (talk) 22:31, 29 July 2009 (UTC)[reply]

Talk page archiving

Although this talk page isn't high-traffic, it stretches back to 2006 and is getting quite long. Are there any objections if I set up Miszabot to archive the talk page, as is done on many others? - Simon Dodd { U·T·C·WP:LAW } 17:11, 29 July 2009 (UTC)[reply]

I've archived manually everything pre-2009. Auto-archiving doesn't seem necessary on this page, it's not that high-traffic. Rd232 talk 13:40, 21 August 2009 (UTC)[reply]

Worthy of inclusion?

"This Court has never held that the Constitution forbids the execution of a convicted defendant 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 question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable."

Supreme Court Justice Antonin Scalia in an dissenting opion published here: http://supremecourtus.gov/opinions/08pdf/08-1443Scalia.pdf

Some may take this to mean Justice Scalia advocates the execution of the "actually" innocent (though convicted and given sentence of capital punishment). sherpajohn (talk) 19:02, 18 August 2009 (UTC)[reply]

  • It's probably worth covering if only to dispel the mistaken impression you mention that people may form. I think it's worth waiting, however, to allow reliable secondary sources time to discuss it.- Simon Dodd { U·T·C·WP:LAW } 19:47, 18 August 2009 (UTC)[reply]
    • I fully agree with waiting for discussion from secondary sources - do you think this will get much attention in the press? sherpajohn (talk) 19:59, 18 August 2009 (UTC)[reply]
I don't know about the mainstream press, but the legal press (Legal Times, NLJ, etc.) will likely think about it, and it's already getting interesting coverage in the blawgosphere (WP:SPS would allow posts by, for instance, Doug Berman, Kent Scheidegger, Orin Kerr and [http://www.scotusblog.com/wp/hearing-on-innocence-claim-ordered/ Lyle Denniston). I'd say let's wait a week, keep notes, and see what becomes available. - Simon Dodd { U·T·C·WP:LAW } 20:50, 18 August 2009 (UTC)[reply]
I was wrong, the MSM are showing interest: [6]. I think that by early next week, we'll probably be in a position to frame a few words about the case. Although to tell the truth, looking through this article, I think there's a lot of work to be done on it as a whole.- Simon Dodd { U·T·C·WP:LAW } 15:54, 19 August 2009 (UTC)[reply]
I've added this to footnote 39, re the sentence on the Eighth Amendment. Rd232 talk 13:42, 21 August 2009 (UTC)[reply]
It would have been better to wait, but c'est la vie. In any event, I have removed the citation to "Counterpunch," an unreliable source scarcely more reputable than the World Weekly News or Socialist Worker, leaving your text and Time citation in place. Since you have included the quote, it seems fair to ask that you do the work that was otherwise going to be done to explain the context.- Simon Dodd { U·T·C·WP:LAW }

Comments on "enhanced interrogation techniques"

Please include this in the article.

http://newquebec.blogspot.com/2007/07/justice-scalia-defends-jack-bauer.html which quotes

What would Jack Bauer do? Canadian jurist prompts international justice panel to debate TV drama 24's use of torture The Globe and Mail COLIN FREEZE June 16, 2007 ......

During a break from the panel, Judge Scalia specifically mentioned the segment in Season 2 when Jack Bauer finally figures out how to break the die-hard terrorist intent on nuking L.A. The real genius, the judge said, is that this is primarily done with mental leverage. "There's a great scene where he told a guy that he was going to have his family killed," Judge Scalia said. "They had it on closed circuit television - and it was all staged. ... They really didn't kill the family.

Ray Eston Smith Jr (talk) 21:32, 30 August 2009 (UTC)[reply]

Tag removed - Unbalanced

There might be a case to be made for the "unbalanced" tag

But what is it? "it's unsourced and thus BLP issue 2) seems NN 3) classic case of overcategorization)" Huh? I don't think this merits "unbalanced." Of course it would be useful to have a discussion on potential bias, but some point has to be made- I'm not even sure if by "unbalanced" the andrew C meant too favorable or too unfavorable! Tumacama (talk) 16:06, 18 October 2009 (UTC)[reply]

What drives what? Originalism and Conservatism

I fear that this article has many references to Scalia's originalism and the extent to which it drives Scalia's decisionmaking that do not reflect scholarly consensus. For example, "Scalia's originalism frequently puts him on the conservative side of the Court in constitutional cases, and he is generally perceived as a conservative member of the court." Many (I would say "most" but I have no idea how one would quantify such a thing) law professors and court observers would say that originalism is not really what drives conservative results. Instead, they argue that it is Scalia's conservativism that drives his commitment to originalism. This is not necessarily a criticism of Scalia -- some think this means it avoids the "dead hand" problem and means Scalia actually is much more democratic than he says he is and that this a good thing. For example, see this article: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1356073

I don't think Wikipedia should necessarily takes sides in this debate. But that's my concern: I think by saying things like "Scalia's originalism frequently puts him on the conservative side of the Court" it is taking a side: it saying that that the originalism drives the conservatism, and not vice versa. Instead, to be more neutral, could this be changed to "Scalia frequently is on the conservative side of the Court in constitutional cases, a fact which many of his supporters attribute to his commitment to originalism."

Article improvement

Hey, this has hit the top of my list for articles to try to get to FA status, and I am hoping to gradually improve the with a goal of getting it to FA by the end of March or so. Hope everyone can pitch in and help.--Wehwalt (talk) 18:35, 12 January 2010 (UTC)[reply]

"Judicial restraint"

The following passage from our article got me thinking:

Because Scalia's approach to precedent has the intent, if not the effect, of deferring to popularly enacted statutes in many cases, he has drawn praise as a judicial restraintist but criticism as a majoritarian.

It seems overly general, though I understand that the intention is to summarize a number of viewpoints. In my understanding, the major criticisms of Scalia's approach to precedent are based on the perception that he consistently determines the "original intent" of the Founders to line up with his personal social and political beliefs. That is, he's criticized for judicial activism despite his rhetoric on restraint and originalism.

This criticism has been voiced from the center-left for decades (e.g. Rosen 1993), but it's also been voiced from the right - that is, it's non-denominational. For instance, his opinion in District of Columbia v. Heller was much remarked-upon in this regard. Richard Posner, as close to a patron saint of the American judicial right as exists, criticized Scalia's majority opinion in the case as exactly opposite to that which true "originalism" would dictate. In effect, Posner accused Scalia of allowing his politically conservative ideology to trump his stated commitment to judicial restraint (Posner 2008). He even compared Scalia's reasoning to that of the majority in Roe v. Wade, a comparison likely intended to be uncomplimentary. J. Harvie Wilkinson, another prominent conservative jurist, castigated Scalia's opinion on the same grounds, also comparing its reasoning to Roe, the antithesis of "originalism" (Wilkinson 2009). See also mainstream news sources, e.g. New York Times 2008. I haven't read Biskupic's book, but according to its Times review, she raises the same apparent contradiction, and further notes:

There are other conservative critics as well. The former judge Michael McConnell, the leading conservative scholar of the original understanding of the Civil War amendments, has called into question Scalia’s historical claims about religious freedom and affirmative action. These critiques are devastating, but Scalia has not responded to them.New York Times 2009

I'm not sure about the "right" way to cover this matter, or even how much coverage it warrants. I do think that if we're going to summarize "criticism" of Scalia, even if we intend to do so only in very general terms, then we can do better than the current wording. MastCell Talk 23:11, 12 January 2010 (UTC)[reply]