Associate Justice Antonin Scalia publicly lashed out at Fordham Law Professor Professor Joel Reidenberg who having his students compile a 15-page dossier on his private life. For civil libertarians, Scalia’s objections to a lack of privacy is analogous to Rep. Jane Harman’s outrage over being intercepted as part of the NSA warrantless program that she helped approve.
The controversy was triggered last January when Scalia spoke to the Institute of American and Talmudic Law’s midwinter conference on privacy issues. Scalia mocked privacy arguments, saying: “Every single datum about my life is private? That’s silly.”
It was so silly that Reidenberg decided to assign his students in his Information Privacy Law class to determine about much data they could find on Scalia in the public domain.
Reidenberg noted: “Justice Scalia said he doesn’t care what people find out about him on the Internet. So I challenged my class to compile a dossier on him.” It took only four months for the creation of a 15 page report filled with his home address, personal telephone number, favorite movies, favorite foods,his wife’s personal e-mail address, and “photos of his lovely grandchildren.”
Scalia went ballistic, stressing the difference between the question of legal protection and personal responsibility. He made the following statement:
I stand by my remark at the Institute of American and Talmudic Law conference that it is silly to think that every single datum about my life is private. I was referring, of course, to whether every single datum about my life deserves privacy protection in law.
It is not a rare phenomenon that what is legal may also be quite irresponsible. That appears in the First Amendment context all the time. What can be said often should not be said. Prof. Reidenberg’s exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any.
Of course, Professor Reidenberg is not the only one accused of “perfectly legal, abominably poor judgment,” here.
For the latest on the story, click here.
Free Speech and the triviality of a Private citizen to be safe from an unwanted governmental intrusion.
I guess that if Fordham is seen as a Governmental Actor either because it receives Feral (not a misspelling) Money then they might be subject to a 1983 action. But I do believe that from what I have read that Scalia gave a reasonable person a challenge or a dare if you may.
I would have done it. But if I published it would I have fear of the Marshals come a knocking at my door?
I guess the Right to Privacy does not apply to anyone but the Governmental employees, like Scalia.
Oh, sweet justice!
Oh, sweet justice! Please don’t publish the photos of Scalia and Dick engaging in nude duck hunting.
Here’s the thing I’ve been thinking about Scalia. His decision in Bush v. Gore was horrendous and hypocritical given his power of States v. Federal govt. legal positions. He is obviously less a jurist than he is a polemicist with judicial powers. His appointment to SCOTUS was a horror. The fact that his son worked for Attorney Olsen’s firm during Bush v. Gore should have caused him to recuse himself from the case. his presence debases SCOTUS not because of his political leanings, but because of his hypocritical willingness to shift his positions based on political considerations.
All that said the man is not a crook, or corrupt in a general sense. He is mentally unable to grasp another point of view and to empathize with people outside of his circle of approval. He may well be a highly intelligent man, but he fits my definition of a very ignorant one. If a human is incapable of putting themselves in someone else’s shoes, so to speak, they suffer from ignorance/intolerance. If a human can not look at belief systems, other than their own and not be capable of understanding the reasoning behind it (agreement is irrelevant)then they are ignorant and beyond that dangerous. This is so because then all belief system’s differing from one’s own become threatening and therefore need to be stamped out.
In this instance Scalia is incapable of seeing the irony of being hoisted on his own petard. He will use torturous rationalizations to differentiate between his remarks and the resultant actions and never realize his own hypocrisy.
He is a Robert Bork type, who made it through to SCOTUS and discredits all who voted him on board.
Though I would not have suggested this assignment to any class of mine, I must say: Mr. Justice Scalia, meet the roosting chickens.
BTW thank you JT for that link to your older Scalia post, “Scalia and the Advent of Celebrity Justice.” I was able to reacquaint myself with some of the wisdom we so abundantly enjoyed when our friend, “deeply worried,” roamed this blog. His wit and analysis were gems in a dunghill (my dung included), and, like Patty C, I do miss him very much.
I know this is about Scalia, however, I just viewed this video and if this is being done, privacy is no longer an issue.
mespo727272 1, April 30, 2009 at 9:16 am
BTW thank you JT for that link to your older Scalia post, “Scalia and the Advent of Celebrity Justice.” I was able to reacquaint myself with some of the wisdom we so abundantly enjoyed when our friend, “deeply worried,” roamed this blog. His wit and analysis were gems in a dunghill (my dung included), and, like Patty C, I do miss him very much.
—
mespo, DW admired you very much. You were like Redford to his Newman.
I apologize for the long cut&paste but I followed your link and came upon a poster’s (deeply worried) comment that included Justice Frankfurter’s opinion in Watts v Indiana. While it was written 60 years ago it is the perfect argument against enhanced interrogation of even the least form. Leaving aside the 4th and 5th Amendments it exalts sound investigation v expedient coercive investigation and should be the mandate for our military and Intelligence agencies.
“deeply worried
1, February 20, 2008 at 9:45 pm
And one last time (I promise you)
Watts v Indiana, 338 U.S. 49 (1949)
Mr Justice Frankfurter announced the judgment of the Court and an opinion in which Mr. Justice Murphy and Mr Justice Rutledge [two sainted souls] join: [excerpts follow]
“There is torture of mind as well as body; the will is as much affected by fear as by force. And there comes a point where this Court should not be ignorant as judges of what we know as men. See Taft, C.J., in the Child Labor Tax Case, 259 U. S. 20, 37.”
“A confession by which life becomes forfeit must be the expression of free choice. A statement, to be voluntary, of course need not be volunteered. But if it is the product of sustained pressure by the police, it does not issue from a free choice. When a suspect speaks because he is overborne, it is immaterial whether he has been subjected to a physical or a mental ordeal. Eventual yielding to questioning under such circumstances is plainly the product of the suction process of interrogation, and therefore the reverse of voluntary. We would have to shut our minds to the plain significance of what here transpired to deny that this was a calculated endeavor to secure a confession through the pressure of unrelenting interrogation. The very relentlessness of such interrogation implies that it is better for the prisoner to answer than to persist in the refusal of disclosure, which is his constitutional right. To turn the detention of an accused into a process of wrenching from him evidence which could not be extorted in open court, with all its safeguards, is so grave an abuse of the power of arrest as to offend the procedural standards of due process.”
Now comes the heart of Frankfurter’s analysis:
“This is so because it violates the underlying principle in our enforcement of the criminal law. Ours is the accusatorial, as opposed to the inquisitorial, system. Such has been the characteristic of Anglo-American criminal justice since it freed itself from practices borrowed by the Star Chamber from the Continent whereby an accused was interrogated in secret for hours on end. See Ploscowe, The Development of Present-Day Criminal Procedures in Europe and America, 48 Harv.L.Rev., 433, 457-58, 467-473 (1935). Under our system, society carries the burden of proving its charge against the accused not out of his own mouth. It must establish its case not by interrogation of the accused, even under judicial safeguards, but by evidence independently secured through skillful investigation. “The law will not suffer a prisoner to be made the deluded instrument of his own conviction.” 2 Hawkins, Pleas of the Crown c. 46, § 34 (8th ed., 1824). The requirement of specific charges, their proof beyond a reasonable doubt, the protection of the accused from confessions extorted through whatever form of police pressures, the right to a prompt hearing before a magistrate, the right to assistance of counsel, to be supplied by government when circumstances make it necessary, the duty to advise an accused of his constitutional rights — these are all characteristics of the accusatorial system and manifestations of its demands.”
“Protracted, systematic and uncontrolled subjection of an accused to interrogation by the police for the purpose of eliciting disclosures or confessions is subversive of the accusatorial system. It is the inquisitorial system without its safeguards.”
Now this is the common-law, due process accusatorial system that the distinguished jurists of the previous generation left us.
And which if Scalia had his way, would be dismantled under the name of State security, and a new edifice of inquisitorial law erected.”
Lottakatz,
DW was a truly great man. He is sorely missed.
“Privacy for Me, but not for Thee” – Antonin Scalia.
Lottakatz,
Thank you. BW’s post including these Frankfurter remarks bears continual repeating:
“This is so because it violates the underlying principle in our enforcement of the criminal law. Ours is the accusatorial, as opposed to the inquisitorial, system. Such has been the characteristic of Anglo-American criminal justice since it freed itself from practices borrowed by the Star Chamber from the Continent whereby an accused was interrogated in secret for hours on end.”
Game. Set. Match. Try these bastards!
DW
To DW…!
This is mostly for ‘Sundance’, but surely most remember ‘Burt’s
‘South American Getaway’…
Secretly, deep down, he wants and needs for a bigga badda coppa to strip search him …
Here’s the thing.
I went back and reviewed the text of the constitution. From the perspective of our lord textualist Scalia, there’s absolutely no text protecting a right of … how do you say… ‘privacy’ in the constitution.
Pity.
Come on, these arguments won’t just present themselves…
http://www.usconstitution.net/constnot.html#privacy
The Right To Privacy
The Constitution does not specifically mention a right to privacy. However, Supreme Court decisions over the years have established that the right to privacy is a basic human right, and as such is protected by virtue of the 9th Amendment. The right to privacy has come to the public’s attention via several controversial Supreme Court rulings, including several dealing with contraception (the Griswold and Eisenstadt cases), interracial marriage (the Loving case), and abortion (the well-known Roe v Wade case). In addition, it is said that a right to privacy is inherent in many of the amendments in the Bill of Rights, such as the 3rd, the 4th’s search and seizure limits, and the 5th’s self-incrimination limit.
Bob Esq.,
I agree if you cannot or won’t and have the opportunity to protect then how can you claim that your right to privacy has been infringed?
Strictly(constructionist)Speaking of course.
Patty C.,
I fear that you have been too trained in logical thought to be able to understand Justice Scalia. He’s not interested in any facts or precedent, he’s just interested in his own pre-Judgment of the law, based on his own prejudice and contempt for anyone not steeped in privilege and wealth.
Patty,
As you probably guessed, I was being sarcastic in showing my undying love for Lord Scalia.
Speaking of the amendment I spent my third year of law school researching and writing about, it does not confer any rights, but acts merely as Hamiltons reminder of the rule of construction–expounded in Fed 84.
Goldberg in Griswold almost had it right, but he kept using the same language as the Douglas plurality; i.e. implying that the right was conferred by the amendment — just as Douglas said the right was conferred by the penumbras of (insert what you want here).
The only rights set forth by the 9th Amendment are the rights that can be easily extracted by analytic judgments; i.e the concept of the predicate being contained within the concept of the subject.
Rights that cannot be alienated must be ‘retained.’
“AS usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond right, which no body can have a right to.”
“Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself.”
And what pray tell is the most fundamental stick in the bundle of self-ownership rights?
That’s right; privacy.
SIYOM,
Bob
P.S.
Rights confer power; not vice versa. Accordingly, I do not derive my right of privacy from a sovereign of nine; e.g. in Griswold.
Unfortunately I was not a visitor here when Deeply Worried was a poster; obviously it’s my loss. I’m sorry for your loss of a good companion poster.
Scalia never quite grasped this whole unalienable rights business OR the object of the Fordham exercise. either, apparently.
Child’s play for a students of Locke…
http://discoverjohnlocke.com/quotes.html
“Tyranny is the exercise of power beyond right, which nobody can have a right to”. (Second Treatise, Chapter 18).
“(Tyranny is) … when the governor, however entitled, makes not the law, but his will, the rule; and his commands and actions are not directed to the preservation of the properties of his people, but the satisfaction of his own ambition, revenge, covetousness, or any other irregular passion”. (Second Treatise, Chapter 18).
The life of a Supreme Court justice usually is, and ought to be, a rather lonely existence. Antonin Scalia treats it as though he were a goodwill ambassador for his Rotary Club, socializing with prominent politicians, regardless of whether they have business pending before the Court, and freely sharing his opinions with favored groups. He appears to relish the publicity, but reacts to the paparazzi like any other spoiled celebrity. While I am not sure that Prof. Reidenberg’s assignment was particularly appropriate, Justice Scalia, given his constitutional views, is the last person who should be raising privacy concerns.
It is often said of Justice Scalia that he does not suffer fools gladly. More accurately, he does not suffer disagreement with his positions gladly, which I suppose makes him a soul mate of Dick Cheney. So strong are his ideological leanings that he is not reluctant to incorporate derogatory dicta into his opinions, as though he felt it necessary to warn the bar in advance not to ask him to consider issues he has already ruled upon in his mind.
An example of this propensity appeared in his concurrence in the Pleasant Grove City v. Summum case, the park monument case that was the subject of a recent thread on this site. That case was argued and decided under the Free Speech Clause, although some of us, including me, wondered why it had not been litigated under the Establishment Clause. Without the benefit of any argument based upon alternative First Amendment theories, Justice Scalia gratuitously let us all know that he has already foreclosed all other avenues of attack. “The city,” he wrote, “ought not fear that today’s victory has propelled it from the Free Speech Clause frying pan into the Establishment Clause fire. Contrary to Respondent’s intimation, there are very good reasons to be confident that the park displays do not violate any part of the First Amendment.” Not that anyone asked, of course, but the city fathers of Pleasant Grove are likely relieved to know that they can do whatever the hell they please with religion in the public square without worrying about pesky interference from us Madisonian nut jobs. And it’s nice to know that we need not waste our time and energy presenting issues concerning which Justice Scalia has given us the benefit of his ruling in advance. That’s judicial economy for ya. Come to think of it, he could have crafted Judge Bybee’s memo with maybe a single phone call to the vice-president. No wonder these guys are so comfortable around shotguns.
I’m not sure Pleasant Grove is a good example, although I get your drift. That case, according to the prevailing argument was peculiar to Utah and Mormons, only, as I recall.
Patty,
That’s pretty much it; but you left out the element that makes Scalia worth despising.
By taking a textualist, formalist approach to the document that both Hamilton and Madison agreed was predicated upon the existence and acknowledgment of inalienable rights, Scalia anoints himself as Law itself by disregarding the Hamilton/Madison paradigm and formulating any outcome determination he desires.
He’s evil incarnate.
oh, goody, I so hope they got the details on his relationship to Obama patron Khalid Al Mansour & how they hooked up for the OPEC case, and any relationship he may have to Bill Ayers
Cindy,
I do not follow what point you are trying to make. Are you saying that you are for Obama? That is all I could get out of this. Please explain. Thank you.
Obama should nominate the professor for the Supreme Court … now that it appears Souter is retiring.
The federal bench is unbalanced:
http://blogdredd.blogspot.com/2009/03/here-come-de-conservative-judges.html
Patty C:
“mespo, DW admired you very much. You were like Redford to his Newman.”
************
Thank you Patty C. I can’t recall a finer compliment. I know he felt the same way about you.
“What is good for the goose is good for the gander”. Scalia deserves no more privacy than you or I.
Isn’t this reminiscent of Robert Bork filing suit for tripping on a sidewalk in New York – principles are fine as long as they don’t affect my personal life.
The irony is making me laugh so hard I risk aggravation of my para-sailing injury.
Bob,
“He is evil incarnate.”
I spread that word as fast as I can.
mespo,
Please avoid Bolivia.
You don’t get it, Buddha – Bolivia is who ‘we’ ie DW, mespo, JT and
I are!
You can’t change our blog history. We’re bonded together
- forever.
As an occasional reader of this site, can I ask: Who was Deeply Worried?
Dr. Dredd,
I will speak from my experience and I’m certain others will speak of him as well. D.W. had worked for the Federal? govt. One of his last posts described him as having blacked out, waking up in the hospital, being forced to eat phood known as “the cardiac diet”!
His posts were always deep, thoughtful, unique, well researched, kind-spirited, and intelligent–to name of few of their qualities. He only posted a few times after describing the hospital visit. As he had posted here regularly I assume the worst, but hope for the best.
I think you can google, deeply worried on jonathanturley to find some of his many posts. You won’t be sorry that you did.
Jill
Dr. Dredd:
To me this was “deeply worried” in his own words. Though not a lawyer by certificate he was a lexiphile at heart:
“The people who hate lawyers would, if their logic was to be extended, repeal both Constitution and Magna Carta and we would be happily returned to serf and Lord where order and certainty was restored to human society.
Too bad there are lawyers indeed! Too bad there is a Law, they argue in courts. Muzzle them, pillory them, slander them!
Or better yet, subvert them, suborn them, co-opt them. There will always be willing dogs to lie at the feet of their masters.
And there will always be polemicists who argue the virtues of Power unchecked.”
While many of you make excellent points, the thing to behold here is that Scalia is, above all, a bully. He exploits the law when it is dovetails with his beliefs and shuns it when it trips him up.
I find this hugely amusing.
GWLSM,
Good to notice that you moved over to the main Blog (Blawg) Tab from the BIO Tab and not to the Latest Column Tab. Welcome.
Old man Judge Scal (scowl) looks like a mafia puppet in that thumbnail photo accompanying this topic thread, especially the way his arms are positioned—sans the active puppet strings.
One of his last posts described him as having blacked out, waking up in the hospital, being forced to eat phood known as “the cardiac diet”!
—
DW was NOT a cardiac patient, Jill.
He was admitted to the Cardiac Service and given a bland diet while under observation – overnight, only.
Jill,
Please do not take the bait. I have noticed that you have not been posting. I enjoy the open exchange it is fun, although I may disagree with you, I enjoy reading.
Former Fed LEO,
It is good to recognize the new people and what they have to offer and contribute to this site.
You are a person of integrity, how did you last as a LEO with the Feds? Oh, you never said you retired.
A.Y.,
Thank you for what you said. In an open, democratic society, difference of opinion is to be cherished not repressed. Vigorous debate is one ot the best qualities of this website. Anyone who understands the Constitution and respects what JT is trying to do here, values it.
I do not read Patty posts but I get some idea of them from what others write. My philosophy is to ignore her type of personal and ignorant attacks. I just wasn’t posting because I was up to no good most of the day!
Again thanks. I know you and I don’t agree on things but I’m glad you are posting here. I do agree with you about FFLEO!
Jill
Jill,
So what kind of “No Good” were you up to?
A.Y.,
Like Gyges, I’ve already said too much:)
Jill,
Well, well, I am offended. I was just reading about Scalia and his desire to have his private life open to the public. So I figure you would as well.
A.Y.,
O.K.,
I confess to naked duck hunting with Scalia and Dick, while accidently shooting my friend in the face. Fortunately, she apologized to me, so everything’s fine now.
That was too bad about Scalia being exposed because he does value the right to privacy for himself so highly. Oh Well. Sometimes bad things happen to good people.
Back to the bunker for me. Have a good evening.
Quack, Quack, Quack.
Bunker? Oh my.
AnonY,
I retired from the Federal government, although not as an LEO; hence ‘Former’, and not retired LEO. I had eighteen and one-half years of duty as a Federal law enforcement officer.
See Former Fed LEO,
Given enough time and we attorneys that have half a brain can figure out things without being told.
That’s what separates the A, B and C students. Well it was a slippery slope in Law School. I started out with a 3.5 for the first year and then I took it easy. I had not a life out side of law school. I was afraid of flunking out and then I realized that I could pass and still have fun except for 6 to 8 weeks during the year. I chose the path of least resistance to my basic nature.
I look back at the McCombs School of Bidness and wonder how I even got in as well, but I passed. I did get an Accounting degree in 3 worked for 6 months and then went back to school for Marketing.
I thank you for your chat, sir.
I get goose bumps when any one of Liberty’s four blood clots is compelled to hastily search the Constitution and in the process, suffer an ideological hit right out in the light.
Precious.
http://www.light-to-dark.com/supremes_06.html