Posts Tagged ‘Justice Scalia’


June 6, 2011

I am a snoot. I didn’t mean to be a snoot when I started out and I’m not sure how it happened or even when. But I am one, one of “The Few, the Proud, the More or Less Constantly Appalled at Everyone Else.


David Foster Wallace

No need to wander off in search of a dictionary, it’s a new usage and comes from the writer David Foster Wallace who, in the fifth footnote to an article he wrote about grammar, described SNOOTS: “A SNOOT can be defined as somebody who knows what dysphemism means and doesn’t mind letting you know it.”

And to prove I am a snoot I will now let you know that dysphemism means using an intentionally harsh word instead of a polite one. Think of it as the opposite of a euphemism. A common euphemism for dying is “passed away.” Dysphemisms for dying include, “assumed room temperature”,“kicked the bucket” or ”took a dirt nap”. A truly serious dysphemism, rising to the level of an actual insult would be calling a snoot a pedant.

In short, a snoot is somebody who cares about the English language, uses it correctly, and knows what a sublime tool it is.

Snoots know, according to Wallace, when and how to hyphenate phrasal adjectives and to keep participles from dangling, and we know that we know, and we know how very few other Americans know this stuff or even care, and we judge them accordingly.” And we who revere the language are more than “appalled”, we are apoplectic when we hear a putative political leader say about Paul Revere,

“He who warned the British that they weren’t gonna be takin’ away our arms by ringing those bells, and makin’ sure as he’s riding his horse through town to send those warning shots and bells that we were going to be sure and we were going to be free, and we were going to be armed.”


One of the Homes of the English Language (Oxford, 1890)

Nor are we pleased when we read in the United States Constitution – the Constitution! – :

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws. [emphasis added]

And speaking of the Constitution, that reminds me that I find myself in the company of Justice Scalia, also a self-described snoot. He has a good working definition too:

But there are people who care a lot about words, about precise use of words, and there are people who don’t. And snoots are those who are nitpickers for the mot juste, for using a word precisely the way it should be used.

I’m troubled by being in the company of Justice Scalia just like I’m troubled when I come upon a federal judge fly-fishing or engaging in some other harmless activity: It’s jarring. But, there you have it. And while I am compelled, by virtue of his exalted station in American life, to care about what Justice Scalia thinks, it is a good bet he cares not a farthing for anything I think. But facts are facts and we’re both snoots. And how can anybody disagree with this Scalian sentiment, “To write well is to communicate well. To write poorly is to communicate poorly.”

Stradivarius in Berlin -Photo courtesy of Hay Kranen

Because he coined the term, I leave the last word to Wallace who opined that hearing adults misuse the language is akin to watching someone pound nails with a Stradivarius.



What Was Congress Thinking?

March 31, 2010

Among the things that judges and law professors love to argue about is how a judge interprets the written words of a constitution or a law. In the United States the Constitution proscribes what must happen before something becomes a law: It must be voted upon and passed by majorities in both the House of Representatives and the Senate, then signed by the President.

Truman Committee Hearings during WWII

But Congress usually does a lot of work on the proposed law before it is passed. Usually staffers write the bill, either in the White House or committee staffers in Congress do it. In the normal course, committees on both sides of the Hill hold hearings on the bills which are often rewritten or amended as the process continues. Then, before both houses of Congress vote, all congressmen have the opportunity to be heard about the bill. Their debate and the record of the hearings gets written down and saved. The statute becomes law after passage by both houses and signature by the president. (Or by both houses overriding the president’s veto.) Lawyers call the record of passage the “legislative history.”

But the language of statutes is like that of politics, “designed,” wrote Orwell, “. . .to give an appearance of solidity to pure wind.”

Laws, like all human language, can be, and often are, ambiguous. The job of “disambiguating” ambiguous laws belongs to judges.

So, of course, Justice Scalia has opinions about how they are to go about it.

So does Justice Breyer and his ideas differ from Justice Scalia’s. The two of them have been in the news lately because they sometimes go to law schools and other public fora to debate about it.

Which makes one of this week’s opinions of the Supreme Court interesting. By a vote of 7-2 the court interpreted a statute allowing a private citizen to sue on behalf of the U.S. Government when the government has been overcharged by someone or some corporation. Justice Scalia agreed with the result but added a short concurring opinion expressing his disdain for “legislative intent” as revealed by the record of congressional action before the bill became a law.

Justice Scalia, as always, is succinct:

I agree that the stray snippets of legislative history . . . the dissent have collected prove nothing at all about Congress’s purpose in enacting [the law at issue] But I do not share the Court’s premise that if a “‘legislative purpose’” were “‘evident’” from such history it would make any difference. The Constitution gives legal effect to the “Laws” Congress enacts, Art. VI, cl. 2, not the objectives its Members aimed to achieve in voting for them. If [the law’s] text includes state and local administrative reports and audits, as the Court correctly concludes it does, then it is utterly irrelevant whether the Members of Congress intended otherwise. Anyway, it is utterly impossible to discern what the Members of Congress intended except to the extent that intent is manifested in the only remnant of “history” that bears the unanimous endorsement of the majority in each House: the text of the enrolled bill that became law.

Justice Breyer dissented, believing that the majority misinterpreted Congress’s intent in passing the law and maintaining that a it is a part of a judge’s job to resolve ambiguities by looking at legislative intent.

Unlike Scalia, Breyer hardly ever is succinct.

But it didn’t matter. Justice Breyer didn’t write the dissent. He has a new soul-mate on the question of legislative intent. Justice Sotomayor wrote the dissent and all Justice Breyer had to do was sign her opinion. She thinks the Court misread Congress’s intent as discerned from the text of the law and the legislative history.

One can imagine that Justice Scalia was not pleased.

We pass without comment on Justice Scalia’s 100 plus page opinion in the gun case where he does exactly what he usually disdains. Only he goes beyond what Congress intended: He discerns what the pre-industrial-age-male, property-owning voters intended when they voted to ratify the Bill of Rights. Apparently their intent is relevant and easier to discern than that of 20th Century legislators.

Amazingly, Justice Scalia’s divinations of what those voters of long ago intended almost always accords with his own inclinations. Probably a coincidence.


For more on legislative history, here is an informative page about the Congressional Record.

The opinion of the Court to which this post refers is here.

For more on Justice Scalia’s views about original intent see this post discussing two conservative judges’ take on his opinion in the Heller case.

Guns v. Commas – The Penultimate Post

July 7, 2008

He that uses many words for explaining any subject, doth, like the cuttlefish, hide himself for the most part in his own ink. -John Ray,naturalist (1627-1705)
It is time to tackle the Supreme Court’s opinion in Heller v. D.C., the recent case in which the court held that Americans have an individual right to own at least some kinds of guns. This should be the next-to-last post about the case. (At least until some of the cases the National Rifle Association started last week wind their way through the court system.) The other posts are collected in the 2nd Amendment category at the right.

The decision was 5-4 with Justice Scalia writing for the majority. Justice Scalia is the best writer on today’s Supreme Court. He knows how to write a short, well-reasoned opinion. When he goes on for 64 pages, as he does in this case, something cuttle-fishy is afoot.

And, as I’ve warned you before, if you give Justice Scalia his premises, which he usually sets out in the first few paragraphs of his analysis, he’ll frog-march you away helplessly entwined in his logic. It’s his premises you have to watch. Often they are honestly debatable and sometimes flatly wrong.

His opinion in the Guns v. Commas case is an example. Here is how it starts.

The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose.

Even Scalia knows he’s pulling the wool over our eyes:

Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose.

But we aren’t concerned with other “legal documents” and Scalia knows it. We’re concerned solely with the Constitution which does not have “prefatory clauses,” except in the Preamble.

If your premise is shaky, it’s good to muddy the waters with an impossible example as soon as possible. For instance,

Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.”

Then, after making up a provision that does not exist, run back to the unquestioned basic premise:

That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause (“The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence.” The preface makes clear that the operative clause refers not to canons of interpretation but to clergymen.) But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.

Talking through his hat like this makes Justice Scalia irritable and depressed, like an unwilling child dragged to a weekly piano lesson.

When that happens, he takes it out on a fellow justice. This time it’s Justice Stevens on whom he vents his frustration.

(JUSTICE STEVENS uses the same excuse for dismissing the state constitutional provisions analogous to the Second Amendment that identify private-use purposes for which the individual right can be asserted. See post, at 12.) That analysis is faulty. A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics).

Scalia spends a lot of cuttlefish ink disagreeing with the two dissents and often does it dismissively. But that enables him to gloss over other textual problems. For instance, what about the adjective “well-regulated?” Most everyone, back then and now, thought it meant a militia created and operated by a state government. But that is a troublesome understanding for Justice Scalia. So, he brushes it aside,

Finally, the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training.

Mr. Justice Scalia’s talent for deception is never as impressive as when he exercises it against unoffending, helpless dictionaries. “Regulated” does not mean “disciplined.”

A straw man to knock down is a good thing too, especially if it gets him back to his basic — and still unquestioned — premise,

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. . . . It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Eventually, he’s finished:

Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.

And not a word about those three commas, which is pretty good evidence that the Framers put them there for a reason; a reason which Justice Scalia finds disagreeable.


Stanley Fish weighs in with a good point: Everybody on the Court spent their time worrying over the “intention” of the long-dead framers. (Technically, Justice Scalia worries more about the understanding of the people who voted to ratify.) My take on the case, coming this week, is related. Here is a teaser: the Framers had no intention about gun control because they never thought about it. Neither did the people who voted to ratify the Constitution.

Justices Scalia and Souter Go Public

April 30, 2008

Supreme Court Justices Scalia and Souter have been in the news this week. Justice Scalia was on CBS’s 60 Minutes and several NPR programs. (Part One, Part Two, Part Three) The much more reticent Justice Souter delivered a speech which included a story about a recent visit to the Gettysburg Battlefield. Justice Souter used the story of the famous bayonet charge of the 20th Maine Volunteers down Little Round Top as an illustration of a moment when history pivots.

Jeffrey Toobin tells a story about Justice Souter’s reticence in his book, The Nine. The justice was on his way home to New Hampshire and stopped at a road-side restaurant for a meal. Someone came up to him and asked if wasn’t a Supreme Court Justice. Souter admitted to it. Soon it became apparent that the man had mistaken Souter for Justice Breyer. The man asked Justice Souter what was the best thing about being on the Court. He responded, “Well, I’d have to say it’s the privilege of serving with David Souter.”

Justice Scalia, in his interviews, discussed his life and judicial philosophy, originalism, which we have explained in our Maiden-Tied-to-the-Tracks series: Part One, Part Two, Part Three)