Excellent analysis. It shows clearly what a statist Scalia is. Why people who consider themselves libertarian would applaud him is beyond me.
Mithras | Homepage | 03.01.05 - 11:35 am | #

This does not bode well for a Scalia-led post-Rehnquist court. And it smacks of political favor-currying with the somewhat gratuitous (and, as you point out so well, illogical) and rhetorically inflammatory invocations of abortion at every turn. I agree completely that the state in fact has a higher responsibility--especially as it acts in my name.
The subtext seems to be that everyone who has had, considered, or supports the right to an abortion should themselves be executed.

Perhaps your career change should lead you to the law? You'd make a helluva Chief Justice. I heard a scary NPR piece on how the Bush admin is seriously considering Clarence Thomas as the replacement for Rehnquist, b/c Thomas could more effectively dismantle all vestiges of civil rights, being, as he is, One Of Them. As a "minority," too, Thomas would presumably be immune to challenges from Other "Minorities," including that majority minority, Women.

Scary shit.
Dorcasina | Homepage | 03.01.05 - 11:58 am | #

[i]Abortion need not, in fact, be a particularly complex decision, precisely because it is not killing an innocent person in cold blood.[/i]

The problem is, I think, that Scalia thinks that abortion *is* killing an innocent person in cold blood. But he's not going to say that on the bench. At least not yet.......

Scary times.
Andy Groves | 03.01.05 - 12:17 pm | #

Well, he's entitled to think that. He's not entitled to assume that we've reached some sort of collective consensus on that issue, though, because obviously we haven't.
bitchphd | Homepage | 03.01.05 - 12:28 pm | #

Now I have to actually read the whole goddamn opinion . . .
sergei | Homepage | 03.01.05 - 12:49 pm | #

Abortion need not, in fact, be a particularly complex decision, precisely because it is not killing an innocent person in cold blood.

Wait, I think you are confusing the relationship between the wrongness of an act and the difficulty of the decision.

If the act is clearly wrong, like killing someone "in cold blood", then the moral deliberation is not particularly complex. Normal adults easily know not to do it. The decisions that tax our moral competence are the ones where our rights and duties are ambiguous.

I teach a class on abortion ethics. I'm not sure I could teach a class on the ethics of cold blooded murder. There just isn't that much to say.

This is not to say that Scalia is right to draw an analogy between the state's oversight of a minor's access to abotion and the state's response to killing by minors. In general his reasoning is, as always, scary and weird.
rob loftis | Homepage | 03.01.05 - 1:29 pm | #

Rob, I see your point. I was responding to Scalia's saying that abortion is "surely a complex [moral] decision" for a young woman--I can imagine that, frequently, it really isn't. You're 15, you're pregnant, you are not ready to become a mom, you have an abortion. End of story. Of course, some 15yo's will agonize over the decision, and some will chose to carry the pregnancy to term, but it isn't *surely* a complex decision for everyone.

Is a decision to murder complex? Not for most of us, no--most of us say, murder is wrong, don't do it. But I would imagine that for those who kill people (and obviously this is pure speculation) that sometimes it's a non-decision--you just shoot someone--but sometimes (as in the case at hand) it seems that a lot of thinking goes into it--which is why we call it "cold-blooded," as opposed to a "crime of passion."
bitchphd | Homepage | 03.01.05 - 2:21 pm | #

Let me explain why the context is different for Scalia, who is apparently kinda stupid: the issue at hand is not the moral agency of children; it is on the power of the state.

I have not read the full text of Scalia's dissent, but I do not think it that complicated.

He seems to me to be simply arguing that having an abortion is essentially executing a human being. Therefore, if children have the moral capacity to make a decision regarding the execution of a (unborn) human, they must also have the moral capacity to make a decision to execute a born (post-born? afterbirth?) human being, so therefore, denying they have the moral capacity to perform one act and not the other is either nonsense or hypocrisy.

Even if I spot him the point that an abortion is killing a living human (and thus morally equivalent to murdering another human in cold blood), I think your point that the cold-blooded murder of (post-born?) human being involves going out and finding someone and an abortion ivolves a circumstance over which the actor has no choice, much like a child executing a human being in pure self-defense.

And then he would pop in with the argument that the child chose to get pregnant. And so on.

Aside from that, his overarching point of view is that the fed courts have no right to DENY the states freedom of action in their own sphere unless there is a specific injunction to do so, so therefore the court should not have the power to prohibit state decisions regarding the moral agency of children but if the fed courts DO have that power, then they should exercise it consistantly.

He DOES have a point that the fed courts handling of the moral agency of children is inconsistant. And in fact, the general treatment of the moral agency of children is inconsistant. (You can drive at one age, have sex at another, can be executed at a different age, can't vote until a certain age, can join the army earlier, etc. etc.)

That said -

Moreover, there is a major difference between protecting children from state power and "protecting" women from their own moral agency.

I agree with this, although I would phrase it as protecting _children_ from their own moral agency.

At any rate, I don't think he's stupid, so much, as simply an authoritarian federalist.

(The decision in Hamdi rather drastically improved my opinion of his intelligence and consistentcy. Whether I agree with him or not. Whereas, my opinion of Rehnquist probably couldn't any lower.)

ash
['Oh, the fun you'll have.']
ash | 03.01.05 - 2:37 pm | #

No, no, it's not about the moral autonomy of children, or states' rights. Scalia sees it as both kids' morality and a question of federal vs. state legislatures, but that's wrong. It's about the state (by which I mean "government")'s power over the individual. We do treat children's moral agency inconsistently, precisely because--just as with a fetus in utero--the exact moment at which tadaa! you're a moral agent is impossible to pin down, and varies from person to person anyway. Mostly we operate with rough guidelines: the level of maturity required to drive is less than to drink, etc. But when it comes to executing people, as I say, it behooves the state to be cautious, and to refrain from executions if there is any doubt at all. Equally, when it comes to abortion, it behooves the state to be cautious, and to grant to women, including young women, the power to make their own decisions.
bitchphd | Homepage | 03.01.05 - 2:45 pm | #

I predict he'll try to insert "abortion" into every opinion he writes from now on.
Roxanne | Homepage | 03.01.05 - 3:41 pm | #

I skimmed his opinion. It was very strongly worded and made him sound a bit hysterical. I found Sandra Day O'Connor's more troubling because it was harder to argue against. I only skimmed the majority opinion but think it's a step in the right direction, though the case they were evaluating was totally horrible.
Anna in Cairo | 03.02.05 - 5:19 am | #

Everyone seems to be missing the point of Scalia's abortion reference. He wasn't in any fashion comparing murder to abortion. That simply wasn't the point at all.

The point was this: If 17-year-olds have the moral capacity to make the often complex decision whether to have an abortion, they sure as hell have the moral capacity to know not to commit a brutal murder. And if they have the moral capacity not to commit a brutal murder, then what is the majority doing pretending that, hey, it could just be a confused teenager who needs to grow up a little bit?

THAT's the point. Why does the Court grant teenages such moral autonomy in one context, but a context where they have even more moral autonomy, the Court suddenly decides to infantilize them?
Functional | 03.02.05 - 8:49 am | #

Here's an article that explains the point: http://www.tnr.com/doc.mhtml?pt=...lBi83YS8h%3D% 3D
Functional | 03.02.05 - 9:16 am | #

The ACLU, for example, was able to grasp the point:

"The ACLU, although willing to sign a brief about the racial inequalities perpetuated by the juvenile death penalty, was not willing to sign a brief about the diminished rational capacity of juveniles. The organization's worry, according to Levick, who coordinated the amicus briefs for Roper, was that such a ruling might have adverse effects on reproductive rights, specifically the right of juveniles to obtain abortions."
Functional | 03.02.05 - 9:17 am | #

THAT's the point. Why does the Court grant teenages such moral autonomy in one context, but a context where they have even more moral autonomy, the Court suddenly decides to infantilize them?

And that's pretty close to what I said.

ash
['Woot.']
ash | 03.02.05 - 3:06 pm | #

Interesting. Keep in mind the peculiar position judges are in when they interpret the Constitution is one of second-degree removal. They don't ask, What decision would be best? so much as What decision is consistent with a constitutional jurisprudence that, overall, is the best? Another way of phrasing it is: When you decide constitutional questions, you're dealing with a law that the majority of one state decided to pass. So keep in mind you'd better have a good reason to overrule their judgment.

From that perspective, I think Scalia has a little bit of a point. The question is not whether any or most minors have insufficient moral capacity to justify their execution, but whether they should be _presumed_ to be. Scalia points out that when a legislative majority decided that minors should be presumed to be incompetent to make such a decision, the Court ruled that the Constitution forbid such a presumption. But now, when contrariwise the majority wants individualized concern, the Court has decided the Constitution _compels_ such a presumption.

Not that I agree with Scalia's conclusions, but the contrast makes a little more sense than I think you're giving him credit for.
Tony the Pony | Homepage | 03.03.05 - 9:46 am | #

Er, second paragraph should read:

"From that perspective, I think Scalia has a little bit of a point. The question is not whether any or most minors have insufficient moral capacity to justify their execution, but whether they automatically should be _presumed_ to be. Scalia points out that when a legislative majority decided that minors should be presumed to be incompetent to make the decision to have an abortion, the Court ruled that the Constitution forbids such a presumption. But now, when contrariwise the majority wants individualized determination by juries in death penalty cases, the Court has decided the Constitution _compels_ such a presumption."
Tony the Pony | Homepage | 03.03.05 - 9:49 am | #

Tony, I get that. But what I'm saying is that, on the one hand, you can have a foolish consistency (the hobgoblin of little minds): if we presume minors as incompetent in one case, we must presume them to be incompetent in all cases (or vice-versa). On the other hand, you can reframe the argument: let's be consistent in saying that the state should exercise its power with restraint, given that it's obviously true that blanket assumptions of competence or incompetence are imperfect, and there are always exceptions. Rather than putting the burden on the individuals to "prove" their exceptions to whatever rule we think up, let us say that the power of the state (to execute people, or to limit their medical care) should bear the responsibility for "proving" when it *should* do these things. That is, it's consistent to say that, given that "competence" is really an elusive concept, impossible to measure or really even define, let's not try to define it, legally. Let's just say that the state cannot execute members of a group of people who may have a higher than average rate of incompetence (children, the retarded, the crazy), nor can it limit the rights of that (or any group) based on a *presumption* of incompetence.

In other words, it simplifies the issue to just get the question of competence out of there, or at least to recognize that it's insolvable. Then the question turns to a much simpler, more clearly legal/constitutional issue of, what limits we want to put on the power of the state.
bitchphd | Homepage | 03.03.05 - 12:02 pm | #

"First of all, there is a pretty big difference between the state deciding to impose death on someone, and a person making decisions about their own medical care."

This is a complete and utter non sequitur.

Nobody who doesn't realize why that is so has a legitimate reason to call anybody else stupid.
Iconic Midwesterner | Homepage | 03.03.05 - 2:15 pm | #

If your point is that I'm not accepting Scalia's premises, then I would say the non sequitur is yours. What I'm saying is that his premises are ridiculous.
bitchphd | Homepage | 03.03.05 - 2:29 pm | #

let us say that the power of the state (to execute people, or to limit their medical care) should bear the responsibility for "proving" when it *should* do these things.

Fine, but that is EXACTLY what the Supreme Court said that states cannot do here. That is, after Roper v. Simmons, the state is not allowed to even try to prove that a guy who is 17 years and 11 months old is enough of a brutal murderer to deserve execution.

Read this brief filed by several state governments. It catalogs several horrific crimes committed by 17-year-olds. Read it, and tell me that at as a categorical rule, the 17 year-olds involved didn't know what they were doing.

For example:

Timothy Davis -- Age 17. Sixty-eight year old Avis Alford was working alone in her grocery store in Coosa County, Alabama, when Timothy Davis (17) entered. Davis proceeded to rob, sodomize, and brutally murder Mrs. Alford -- stabbing her 17 times in the back with a common steak knife.

Shortly after police discovered Alford's nude body, Davis, along with his wife and mother, came to the scene and told police that he had earlier found Mrs. Alford's body and that he had panicked and fled. He further said that he had gotten blood on his clothing from lifting her body and had returned home to change before making a report of the murder. Finally, Davis stated that he had seen two black men leaving the area after he discovered the body; when pressed, Davis could not give a description of either one.

Human sperm was recovered from Mrs. Alford's rectum. A stain composed of the combination of human sperm, fecal matter, and tissue from the inside of the rectum, was recovered from the crotch area of the underwear Davis had been wearing. Blood stains matching Mrs. Alford's blood type were also found on the inside of Davis's jeans and splattered across his motorcycle helmet. Davis later admitted the crime to a fellow inmate while awaiting trial.

Well, you're right. The court isn't leaving the states the options to make exceptions for obviously morally well-developed kids who kill (?!?). But the main point is restraint of the state's power.

I don't think that graphic descriptions of heinous crimes change anything. They raise emotional responses, it is true, and a desire to punish; but I don't think that affects (or should affect) our reasoning on the issue.
bitchphd | Homepage | 03.04.05 - 7:43 am | #

Nobody who doesn't realize why that is so has a legitimate reason to call anybody else stupid.

Coming from a creationist, that truly stings.
Mithras | Homepage | 03.04.05 - 7:54 am | #

"Coming from a creationist, that truly stings."

Hmm... from non sequiturs to ad hominems, my Logic and Language Prof. from freshman year would be turning over in his grave were he dead.

I love it. I write a piece that complains that people often don't engage at the level of ideas and result to being intellectually dishonest by attributing ideas to people that they do not espouse. And now I'm a creationist! Thanks for proving my point for me.
Iconic Midwesterner | Homepage | 03.04.05 - 10:31 am | #

Quick comment. Even amongst the ardent liberals within the legal profession, Scalia is recognized as a brilliant legal mind. His agreement with the majority opinion in the Gore v. Bush case was inconsitent with his prior EP opinions. It is not here. There is no inconsistency within the Scalia dissent.

The analysis is well written, but that doesn't equate with it being right.
Consigliere | 03.07.05 - 3:58 pm | #

Wow, I fell onto this site and I have to first ask for those open minds that "liberals" (including myself) say they have.

Scalia is consistent. You may not agree with the consistency, but it is there. That consistency is Federalism. States' rights. Inflammatory topic I know, but it's a free country.

"the issue at hand is not the moral agency of children; it is on the power of the state"

that is exactly right! rather than read into this dissent some anti-abortion stance, why not read an anti-Roe v. Wade stance? that is where Scalia is coming from. His references to abortion are made three times not because he wants to stamp out abortion, but because he wants to stamp out FEDERALLY FIATED right to abortion. he thinks it's up to the states to decide for themselves.

So his analogy is this: the Court in post-Roe abortion cases(and re: birth control, etc.) has waved its magic wand and determined that "kids" are capable of being responsible "adults." Scalia is simply pointing out that you can't have it both ways. you cannot, by judicial fiat, make 16 years olds adults, and then turn around and say, "but not always."

And give me a break. First degree murder requires intent to kill, and premeditation. Even then, capital punishment is reserved for particularly heinous crimes. It is well documented that children develop rational thought by age 10. Don't tell me that some butchering 16 year old needs to be exempt from capital punishment.

Unless you are against capital punishment except for RARE circumstances. That is my position. And that position is based on a blanket view of capital punishment.

While I disagree with Scalia re: widespread use of the death penalty, I do agree with him re: the hypocrisy of the liberal members of the Court when it comes to having your cake and eating it too. The New Liberal is a vicious beast. Ferocious defense of certain "rights" like privacy and free speech, but ferocious attacks on "rights" such as, well...anyone differing in opinion.

Oh, and as an MD, "viability" is not where you want to go with when life occurs, unless you want to ban abortions after 22 weeks. that may have been pushed back farther since i graduated from school 14 years ago.

And one final note: let's avoid the "I disagree so he's stupid" banter. Scalia could intellectually whip everyone's ass, including mine, in this comments section. You can say that he is "wrong" (try "i disagree"), but you can't call him stupid.

try calling him fat. that and other ad hominem attacks seem to work when logical argument fails.

SB
Steve Barnes | 03.14.05 - 5:09 am | #

“First of all, there is a pretty big difference between the state deciding to impose death on someone, and a person making decisions about their own medical care. It behooves the state, I think, to hold a high standard when it comes to killing people.”

Completely irrelevant to what Scalia was arguing. The majority insinuated that people under 18 were categorically unable to distinguish right from wrong; Scalia points out that the court has a much higher regard for minors’ mental capacity when talking about abortion. “The state” has nothing at all to do with that argument that the majority posed and that Scalia responded to. Just because Scalia politically might prefer limited government doesn’t mean he’s driving at that in every sentence of his opinion.

“Let me explain why the context is different for Scalia, who is apparently kinda stupid:”

That’s not a good way to start when you don’t even understand the basic legal arguments involved. As proven here:

“the issue at hand is not the moral agency of children; it is on the power of the state.”

Um, no it’s not. See, in a judicial dissent, you don’t get to decide what “the issue at hand” is. The majority has a position–studies show that minors can’t fully appreciate right from wrong–and Scalia attacks it. Talking about what you think “the issue at hand” is instead of what the majority said would be, well, “kinda stupid.”

“Not whether children can or cannot make moral decisions, but whether or not the state should kill people who may not be capable of making informed moral decisions. Hence, as Kennedy writes, ‘When a juvenile offender commits a heinous crime, the state can exact forfeiture of some of the most basic liberties, but the state cannot extinguish his life and his potential to attain a mature understanding of his own humanity.’”

Read that quote again. It doesn’t support all that you claim. In fact, it’s a conclusion, not a reason. It mentions the state, but nothing about a limited state. It focuses instead on the minor and “his life and his potential”–again, the majority here is concerned with the mental powers and future of the minor, not the powers of the state. This certainly doesn’t force Scalia to compose an essay about limited government in response.

“Hence, the decision is a conservative one: before the state can kill someone, it needs to be certain that the person is a mature moral agent. Since mature moral agency is hard to measure, let us err on the side of caution.”

It’s conservative in temperament and attitude. But it’s not at all conservative politically, or–the only thing that’s relevant–legally. In our judicial system, juries have long been given the power to make individualized decisions about the death penalty; and the Court, headed by Scalia, is now trying to get juries more involved, as they once were, in all other aspects of sentencing. One of Scalia’s points is that it makes no sense to be “cautious” on this issue when we already let juries decide all sorts of issues of fact, culpability, remorse, impact on the victim, and on and on.

Again, conservative in the “I’m scared, let’s be safe” temperament sense is NOT necessarily the same as conservative jurisprudence. When you’re a judge in a democracy, the conservative response may well be, “I’m not sure, let the people decide.” There is no, “let’s be safe and strike down a dozen laws” clause in the Constitution. Nor does any judicial conservative think there is.

So when you say, “it seems to me that the Supremes are taking an essentially conservative position, which is to restrain the power of the state,” you’re not even on topic. Scalia never claims to be a libertarian judge. (In fact, he often rules to increase the power of states through federalism.) Nor does the Constitution mandate libertarianism. Not only are there obstacles such as the Necessary and Proper Clause, but modern judicial interpretation–mostly by liberal idealists such as those on the Warren Court--has made a libertarian Constitution impossible. And besides, you would hate a libertarian Constitution. So what exactly is your point? You’re attacking a criticism that no one on the Court advanced.

You continue to blur politics, temperament, and the law in ranting about how this is all about Scalia’s opposition to abortion. Whatever you think Scalia is “implying,” it has nothing at all to do with the legal claim he’s trying to make: that the court has manipulated its views on the competence of minors to suit its desired outcome on abortion (good) and the death penalty (bad). In choosing abortion, he’s hitting a topic where judicial liberals might feel vulnerable; that’s all.

Of course, abortion and committing murder are not the same type of decision. Scalia says this. But he also reasons that having abortion is more complicated–not immoral, not in the sense that it involves the death of a person, but more complicated. In the sense that it involves multiple trips to the doctor, a rational calculation of what you want to do with the fetus and your future, etc. It’s quite plausible that this decision involves more thought than, “Should I murder this person?” You might agree with him on that, or you might not. But the majority doesn’t even pause to consider the tension between its treatment of execution of minors as opposed to abortions sought by minors. And a Court that opens itself up to contradiction without even replying is a Court that has gone very far astray. That is Scalia’s point.

The only thing this essay shows is that you know nothing about the law. By the way, Kennedy wrote this opinion. He’s the same justice who upheld the Partial-Birth abortion ban. It can really stink having someone just willy-nilly decide a constitutional issue based on political or temperamental grounds, huh?
ted | 06.13.07 - 7:54 am | #