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Justice Scalia Called a "Bully":

CBS News "Analyst" Andrew Cohen has called Justice Scalia a "bully" for offering strongly-worded views on legal subjects in this column. Cohen's views are absurd. There is a vast difference between strongly arguing one's case and "bullying" someone. In fact, it is Justice Scalia's well-known ability to offer lively, opinionated views on legal subjects is what makes him such a desirable speaker for many organizations.

Interestingly, the apparent flash point for Cohen's column is the fact that Justice Scalia opposes televising Supreme Court proceedings — something that CBS has a vested interest in securing.

AntonK (mail):
I feel sorry (and I mean this with every sincerity) for those who still tune-in to the mainstream media.
2.6.2009 10:29am
JAA:
Maybe not a bully, but at least impolite.

Based on the article, I assume that it was a good question, appropriate for the speaker,and it doesn't appear to be mean spirited. I say fair play.

If he doesn't like these types of questions, maybe he shouldn't open himself up to taking them?
2.6.2009 10:35am
Dantheman (mail):
So saying "That's a nasty, impolite question." to a question which was clearly not is strongly arguing one's case? Please.
2.6.2009 10:37am
Arkady:
His was a rude response to what is a reasonable question:


Student Sarah Jeck stood in front of 750 people and asked Scalia why cameras are not allowed in the U.S. Supreme Court even though the court hearings are open, transcripts are available and the court's justices are open enough to go 'out on book tours.' 'Read the next question,' Scalia replied. 'That's a nasty, impolite question.'


Can you explain to us why the question was "nasty" and "impolite"? Maybe to "book tours" part was a bit cheeky, but the substance of the question was serious. He wasn't arguing his case to her, he was swatting her down.
2.6.2009 10:38am
Per Son:
Good grief. I probably agree with Scalia 0.00001% of the time, but I can't help but root for him.

He can be a blowhard, but heck, I like it.
2.6.2009 10:38am
GW 2L (mail):
It's a little disingenuous to say that Scalia's remarks are only "lively" and "opinionated." While I agree that "bully" is too strong of a word, he is certainly condescending, both in his opinions and while speaking in public.
2.6.2009 10:40am
Realist Liberal:
I disagree with Justice Scalia on quite a bit. With that said, I think the question was rude too. Remember, he was speaking on a book tour. To me it sounded like the question was just trying to bait AS.
2.6.2009 10:42am
kormal:

CBS News "Analyst" Andrew Cohen has called Justice Scalia a "bully" for offering strongly-worded views on legal subjects . . . .


I don't think is is a fair characterization of the column. I'm not saying I agree with Cohen, but he's calling Scalia a bully due to the tone of his response to the question, not his later substantive defense of his position (which Cohen also disagrees with, of course).

Based on the news accounts, the Justice's response certainly did seem needlessly dismissive and impolite. Although we only seem to have the accounts of the student and her mentor.
2.6.2009 10:42am
huskerfan:
Realist liberal:

Yes, indeed. Nothing worse than an undergraduate baiting a Supreme Court Justice. The horror, indeed.
2.6.2009 10:45am
Hadur:
Do the liberals who favor televised Supreme Court hearings also go after Justice Souter this hard? As I recall, he is the other major opponent of televised hearings.

Or could it be that liberals are just looking for any excuse to go Scalia-hunting?
2.6.2009 10:50am
PersonFromPorlock:
Why shouldn't nasty, impolite questions be answered if they're answerable? Granted, "Have you quit beating your wife?" is both nasty and unanswerable, but "Do you beat your wife?" is merely nasty - and easily answered.

There doesn't seem to be anything unanswerable, here.
2.6.2009 10:54am
byomtov (mail):
You are misrepresenting the facts.

Scalia was rude in his initial response, or refusal to respond, rather. Cohen is absolutely right about that.

Later, Cohen addresses the substantive response Scalia finally gave - maybe Scalia felt remorse for acting like a jackass - but while Cohen disagrees with Scalia, he does not claim the actual answer was rude.
2.6.2009 10:55am
Sarcastro (www):
I think he meant Scalia was a bully in High School.
2.6.2009 11:03am
DiverDan (mail):
I think Cohen was probably right that Scalia's initial response was at the least rude and condescending, if not actually bullying. However, on the notion of televising oral arguments in the Supreme Court, Scalia is dead on that televising these arguments would only help to mislead the public. First, what channel (C-SPAN, maybe?) is going to televise the arguments in their entirety? MSM outfits like CBS will only edit the arguments for their own 30-second soundbites, and chose those outtakes that serve their own editorial slant. Then, the overwhelming majority of the public will have no real understanding what the oral arguments are about, or that they are often a sideshow; without a familiarity with the opinions below, the Petition for Cert and Reply, the Merits Briefs, and the Record on Appeal, its often impossible to understand the oral arguments. Hell, 99 times out of 100, the main stream media can't even accurately report a decision from the Supreme Court, and that's with the benefit of reading the opinion. What makes ANYONE think that it will accurately portray what went on during oral arguments? And to say that the Oral Arguments are "the work of" the Supreme Court is just ridiculous - I would guess that more than 95% of the real decision-making work goes on in places like the weekly Conferences among the Justices, and in private discussions between a Justice and other Justices or with his clerks - are we going to ask to televise those events as well?
2.6.2009 11:09am
Bama 1L:
Do the liberals who favor televised Supreme Court hearings also go after Justice Souter this hard?

Souter is a bit harder to track down, isn't he?
2.6.2009 11:10am
http://volokh.com/?exclude=davidb:

Do the liberals who favor televised Supreme Court hearings also go after Justice Souter this hard?

They certainly should, if he is this much of an ass about the topic. Maybe he is, I dunno.
2.6.2009 11:11am
Green Monster (mail):
If Cohen's gripe is the prohibition on cameras in the courtroom, perhaps he should have been critical of Justices Kennedy and Souter, who strongly oppose the intrusion as well. Indeed, if memory serves me, it was Souter who said that "you'll see cameras in the courtroom when they roll them over my dead body."

If his gripe is that justices are "hawking" their books, perhaps he should have taken after retired Justice O'Connor, who's penned a couple and "hawked" them, too.

If his gripe is that Scalia was "rude" to a student who asked a legitimate question but couched it in a wiseass manner (i.e., justices' book-hustling), then perhaps he should realize that perhaps students shouldn't dish out what they can't take in return.

It's obvious that the real motive is simply another opportunity for a media leftist to slam a conservative justice.
2.6.2009 11:13am
Houston Lawyer:
I believe the question was worded as a dig at Scalia and he took it so. The question could have been presented without the personal dig, giving no offense to Scalia. A rude response to a rude question is not bullying. If he had pushed it any further though it might have been bullying.
2.6.2009 11:21am
Soronel Haetir (mail):

aare we going to ask to televise those events as well?



I would go further, actually. Every action even remotely related to an elected or appointed official should be recorded on whatever media provides a true memorialization of the events at reasonable cost. The record should become public at whatever point the action becomes final.

I am willing to allow a very narrow national security exception, but even that should expire at some fixed time, consequences be damned.

Government officials should have no lasting priviledge in their communications or actions. Eventually they'll learn to avoid doing things that ambarras them later.

I especially have problems with the Jusctice's tendency to bar cameras from non-court related activities. Do members of Congress or the President claim such a priviledge?
2.6.2009 11:24am
Visitor Again:
Those men and women on the Supreme Court are public servants. If the technology exists, the work they conduct in public, in the courtroom, should be open to public review. Who do these people think they are. Arguments that the public would not understand are elitist in the extreme.

Justice Souter opposes televised proceedings because he values his privacy and does not want to become the equivalent of a rock star. Goes with the power in a democracy is my answer.
2.6.2009 11:38am
PaiGow:
This account, which includes:

Jeck asked whether the rationale for Scalia's well-known opposition to cameras in the Supreme Court was "vitiated" by the facts that the Court allows public visitors to view arguments and releases full argument transcripts to the public, and that justices go out on book tours

leads me to believe the question was less "Why can't cameras be allowed?" and more "How do you feel about being wrong about why cameras aren't allowed?"
2.6.2009 11:46am
Thorley Winston (mail) (www):






I agree with Green Monster and Houston Lawyer, later on at the book signing, Scalia actually addressed the question of why he didn't support allowing cameras in the court room, probably from someone who wasn't trying to take a cheap shot at him. Perhaps she should have bought and/or read the book he was there to sign before asking him the question unlike another rude student who tried to cause an incident last summer.
2.6.2009 11:47am
anonoprof (mail):
This is just absurd. The post, as many other have pointed out, misses the point of the column. I don't know whether you'd call it bullying, but it was a very odd response to a reasonable question phrased in a way that made the questioner's point stronger. The truly rude question Scalia got was whether he sodomized his wife - from a student at NYU I believe. Clearly a rude question, though we could argue whether rudeness was right or wrong there.

This student's question was no more read than any number of the many questions Scalia himself asks at oral argument or any number of digs he takes at lawyers and colleagues in his opinions. I don't mind them there, and I see nothing wrong with the student's pointed question here.
2.6.2009 11:57am
Steve:
I think Scalia acted like a bully towards that student. Reasonable people can draw the opposite conclusion. But this post is pretty disingenuous on the matter. "There is a vast difference between strongly arguing one's case and 'bullying' someone." Well, maybe, but I don't think anyone can say that Scalia strongly argued his case to that student.
2.6.2009 12:12pm
Hans Bader (mail):
Andrew Cohen defended the disgraceful Duke Lacrosse prosecution every step of the way, and repeatedly defended rogue prosecutor Michael Nifong, justifying his egregious due process violations. He also advocated gagging critics of Nifong's unethical actions.

Andrew Cohen is a bully, and a disgrace to journalism. He is also a sycophant when it suits him.

CBS News should fire Andrew Cohen.
2.6.2009 12:14pm
PLR:
What about those people other than Andrew Cohen who have previously suggested that Scalia is a bully in other contexts?

Or is his a Comment of First Impression?
2.6.2009 12:15pm
ArthurKirkland:
Regarding the original exchange with respect to the question, if the report is accurate, Justice Scalia was a boor. He misused his stature -- most or all of it derived from a position as public servant -- at the expense of a college student.

The disinclination to permit recording that would enable the public to view Supreme Court arguments, ostensibly to prevent circulation of misleading snippets, generates two points:

(1) What distinguishes United States Supreme Court arguments from state Supreme Court arguments, city council meetings, school board meetings, county council meetings, Congressional hearings, state legislative proceedings, the NFL draft, Rolling Stones concerts, and other important events that are televised without apparent risk to our nation? Absent the remarkable assertion that United States Supreme Court arguments are uniquely susceptible to dangerous editing, should not those who advance the Souter-Scalia position insist that video recording or television broadcasting of other important proceedings be stopped?

2) Should the Supreme Court move its arguments to a venue in which interested citizens may attend? The current arrangements discourage and routinely deny attendance by citizens who do not have a special route to a seat. If the Court denies a citizen the opportunity to observe the argument remotely, should it be required to make reasonable accommodations -- by conducting arguments at the Verizon Center, for example -- for those who wish to attend the argument?
2.6.2009 12:22pm
Allan L. (mail):
"Bully" hardly begins to describe it. The only positive note in Scalia's rude, boorish, arrogant and oppressive public behavior is that it is predictable. He deserves all the public criticism and taunting that he gets, and then some. He clearly is not qualified to sit in judgment on anyone or anything, and should be impeached.
2.6.2009 12:33pm
njones (mail):
Thank you PaiGow

Scalia may have been a boor but the interesting thing is that Scalia is quoted directly but the student is not. So we really have no way to judge if the question was a "dig" or not. Even if we had a direct quote from the student, her body language or inflection could make something seemingly innocent be a bit of a swipe against Scalia. We just don't know.

His response ("that was a nasty question") does seem so off-the-handle if you assume the question was innocent that I wouldn't be at all surprised if there were more to this story…
2.6.2009 12:37pm
Tim Torrent (mail) (www):
I don't see eye to eye with Scalia on a lot of things, but I have to agree with him on cameras in the courtroom. The media already wrecks cases by presenting one-sided issues without any legal insight whatsoever.

Look at the case a bit back where the judge prohibited the alleged victim from testifying that she was "raped." Nonlawyers didn't understand that under the FRE, no witness can testify to ultimate legal conclusions. It's no different than a judge prohibiting a witness from testifying "X-corp was negligent."

And look at the treatment of the Dover case. When you read through the record, the judge's opinion is fully justified (he pointed out grossly perjurious statements and conflicts of interest all around in club Panda's side), yet certain news outlets portrayed this as activist judging and some sort of injustice.

Or take a peak at Anna Nicole Smith's baby case. With the ridiculousness and DAYS of irrelevant testimony, it looked like a scene out of Boston Legal. Everyone involved made the case into a mockery of the legal profession.

Now imagine if this all happened in Heller or Carhart II, both of which had staggeringly one sided facts, yet partisan and sometimes irrational disagreements of law. And there are really one-sided partisan cases that should go the other way, although the conservatives keep knocking cases out on standing rather than getting to the merits. I'd rather not see these become a circus.
2.6.2009 12:51pm
Meggle:

I think he meant Scalia was a bully in High School.


Yes, and it is important that we continue to interpret his words and actions this way today.
2.6.2009 12:57pm
ShelbyC:

Clearly a rude question, though we could argue whether rudeness was right or wrong there.



How could we argue anything there? I guess it's OK to rudely ask someone who believes that the state has the powerer to ban marital rape if he rapes his wife too?
2.6.2009 12:58pm
loki13 (mail):
I would like to make the following observation:

CJ Roberts once addressed a group of 1Ls. After giving a very long and thoughtful explanation of how SCOTUS was in the worst position to find factual errors, and that they mainly served as a court of error to correct discrepancies in the law and not to serve some goal of justice by reviewing factual records of cases (for example, guilt/innocence), he took questions. One student, outraged, asked,

"Why don't you CARE about JUSTICE???!!!???!!!"

Although he had to pause for a second, CJ Roberts smiled and gave a very detailed and thoughtful response, reiterating the points he set forth earlier and elaborating on them. While he may not have convinced that student, he at least made a convincing argument. The same is often seen in his relations with other members of the Court.

Contrast that with the way Scalia acts, and the way in which he handles questions. Heck, cf. the great influence he on O'Connor. While Scalia might have a decent intellect, and can be charming at times (according to Ginsburg) he is also well known for being condescending and, occasionally, bullying. I think Prof. Cassell doth protest too much.
2.6.2009 1:16pm
James Fulford (mail):
anonprof writes


it was a very odd response to a reasonable question phrased in a way that made the questioner's point stronger.


We believe we know what Justice Scalia said, because it's in quotation marks, but we don't know the wording of Jeck's question, because the account only gives a paraphrase.

Therefore, we don't know if her question was rude or not, because we don't know what her question was, or how it was phrased.
2.6.2009 1:46pm
GU (mail):
I agree with Scalia on TV cameras in the courtroom.

However, this is one incident in a long line of rude behavior by Scalia. For example, I watched a Q&A with him on C-SPAN recently, and after answering many questions about his theory of interpretation, judicial philosophy, etc. someone asked "How do you square the holding of Lopez with Raich"? Visibly perturbed, he grumbled with indignation "I'm not going to answer that question, next question."(paraphrase)
2.6.2009 1:49pm
loki13 (mail):
BTW, just to clarify- I agree with the substance of Scalia's position (no cameras in the courtroom). I just think that he has a history of being an a$$. You can attract more flies with honey than vinegar.
2.6.2009 1:58pm
JHU BME:
First of all, being a bully entails using force or the threat of force to control the actions of others. Scalia chose not to answer the question, because he perceived it to be rude. He didn't force or threaten anyone. The person who asked the question must have known that it was possible Scalia would not answer the question (especially since it is common practice for Justices of the Supreme Court to decline to answer, though perhaps not on this particular topic).

Additionally, transcripts of spoken words do not always convey the intended and perceived meaning. Voice tone can sometimes mean the difference between sincerity and sarcasm, and that difference can determine whether a question is perceived as polite or impolite. Yet, there isn't even a transcript of the actual question. The question, for all we know from the information available, could have actually been prefaced by a minute-long tirade, or included words meant to provoke an emotional response.

Further, there is not much about tone that can be inferred from Scalia's response. Indeed, I can imagine that Scalia responded in a hurt or disappointed way, at least as well as I can imagine that he responded vitriolic ally.

Interestingly, Scalia responded by saying, "Read the next question," which might suggest that there was a moderator reading questions, or that the questions were supposed to have been written in advance and read by the writer according to some predetermined system or order. Of course, Scalia's response may not have reflected either of these things, and may have just been a figure of speech. Nonetheless, without additional information, it's hard to say whether Scalia was accurate in his characterization of the question as "nasty [and] impolite."

Finally, Cohen's analysis of Scalia's response to the underlying question about televising SCOTUS oral arguments is lacking in substance. First, for further reading on the views of the Justices of the Supreme Court with regard to camera's in the courtroom, see: http://www.c-span.org/camerasinthecourt/. He argues that Scalia is wrong because his "view of America is…completely out of touch with reality." Yet, he offers nothing to defend this statement, other than unsupported claims about the "tremendous popular interest" in seeing video of oral arguments. Maybe such interest exists, and maybe it doesn't. I would suggest Mr. Cohen ask someone at the CBS Evening News which would get better ratings, an audio tape of Greg Anderson discussing Barry Bonds' alleged steroid use, or an audio tape of Neal Katyal on behalf of the United States arguing the next challenge to ERISA. If there isn't "tremendous popular interest" in audio recordings, why should we believe that such interest exists for the video?


Maybe there is something inherently more appealing about video, yet there is no evidence presented that the videotaped Courts of Appeals arguments (which Cohen discusses) have garnered much popular interest, despite that many Court of Appeals cases are mentioned in the media. Frankly, what is gained by seeing video of the arguments that cannot be gained by listening to the audio of the arguments? Not much, except that it's much more difficult make the Supreme Court look bad with audio rather than video. Indeed, other than on C-SPAN, the only time I see House or Senate floor debates on TV is with 10-second video bites meant to (mis)characterize a politician's point of view. Yet, quite often, the Justices of the Supreme Court will ask probing questions of the advocates without having any allegiance to one side or the other. Such questions could easily be misinterpreted and conveyed through TV as expressing a point of view, which undermines the perception that the Supreme Court is composed of (generally) impartial adjudicators of legal disputes. I cannot imagine the Court, with how often the Judiciary is attacked by politicians, retaining its independence if it is perceived as being composed of politicians in robes, which seems inevitable if video bites of arguments become commonplace (because the disputes are usually not easy to resolve even with all of the information, let alone with partial and misleading 10-second video clips).
2.6.2009 2:03pm
Zubon (www):
For just a moment there, I mis-read the headline and was trying to combine the images of Antonin Scalia and Buffy the Vampire Slayer.
2.6.2009 2:09pm
TerrencePhilip:
As legal commentators go, I have always considered Andrew Cohen well below average; nothing in this post makes me reconsider.
2.6.2009 2:13pm
Putting Two and Two...:
I'm opposed to televising Supreme Court proceedings because being on camera brings out the worst in some people. I suspect it would do so to Scalia.

Just look what a meany Judge Judy has become!
2.6.2009 3:04pm
Putting Two and Two...:
Vaffanbooktour...
2.6.2009 3:08pm
Putting Two and Two...:

I guess it's OK to rudely ask someone who believes that the state has the powerer to ban marital rape if he rapes his wife too?


If you lived in a society where the likelihood of a "yes" answer approached 100%, yes.
2.6.2009 3:11pm
Bill McGonigle (www):
For the record, I think CSPAN-SC would be a great channel and the argument that the media might do the wrong thing applies to the Congress just as well (what, we don't trust the market to succeed?), but the right to know is more important than that risk. But I'm also against judges wearing black dresses and other trappings of the church, like sitting upon altars, so I doubt Scalia would accept my world view on its face.

That said, I think his gut reaction is telling. If he was internally at peace with the idea he could have handled it gracefully, perhaps as a Roberts would. That he rebuked it so reflexively probably means he can't reconcile his position with his principles. I think I see this in his Heller opinion too. So there may be hope for him yet. OK, enough Pop-Psyc.
2.6.2009 3:17pm
Curmudgeonly Ex-Clerk (www):
I do not think Justice Scalia is without fault, but many of the comments above are the usual, tedious anti-Scalia axe-grinding. For her own part, the student in question reportedly was not offended by Scalia's reaction; the Sun Sentinel article states that "[a]fter the luncheon, Jeck said she wasn't offended by Scalia's chilly response."

Nor should the student be offended, as she acknowledges that she went out of her way to needle Scalia. Of her question, she admits that "[w]e knew it was a little jab." Scalia may not have been magnanimous, but he did react in a fairly normal human fashion. Her jibe amounted to saying that he is a hypocrite for denying the public access to the Court whilst publicly touring to sell his book. Unsurprisingly, Scalia did not appreciate this jab and said so in a pretty measured fashion, characterizing her question as "nasty" and "impolite." I do not see how that amounts to bullying.

In addition, someone should get Andrew Cohen some smelling salts before he succumbs to the vapors. His column is pretty over the top. Among other things, Cohen characterizes Scalia as "a jerk," anyone who disagrees with him about this assessment of the Justice as "sycophants," and anyone who disagrees with him about the advisability of cameras in the Court as "zealots." So his complaints about Scalia's speech and demeanor are fairly ridiculous, given Cohen's own rhetorical style.

Cohen's tone is quite remarkable for a column released by a major news outlet and billed as legal analysis. For example, Cohen writes:
Perhaps you can find the part of Jeck's question that is "nasty" and "impolite." I can't. Indeed, the only person who was nasty and impolite was Scalia, who no doubt was feeling defensive because his appearance in South Florida was, in fact, tied to a book tour. Turns out that Justice Nasty is hawking a book called "Making Your Case" that he co-authored with a fellow named Bryan Garner. These unseemly book tours, and the publicity and marketing that comes with them, are part of the new normal at the Court. Justice Clarence Thomas, for example, won't ask a single question from the bench. But he's Chatty Kathy when he's hawking his memoirs.
Apart from the unhinged character of the prose and the irrelevant and unprovoked non-sequitur directed at Justice Thomas, Cohen's argument is self-refuting. He pretends to not understand why Scalia regarded the question as "nasty" and "impolite," but in the next breath identifies the very reason why Scalia took umbrage. Indeed, I think that Cohen's snide commentary regarding the book tour fairly indicates why Scalia was offended by the question posed and why his offense is perfectly understandable.

In sum, I think the pretense of outrage adopted by Cohen and some of the commenters above is transparent posturing.
2.6.2009 3:22pm
commontheme (mail):
A bully? Surely not a guy who offers a "go f*ck yourself" hand gesture while in a church . . .
2.6.2009 3:40pm
MJH21 (mail):
based on the article, it sounds like Justice Scalia was rude. If he was, he should have apologized.

I will say that for those who have never been present at a university when Justice Scalia speaks, he generally only gives it as good as he gets it. He spoke at my law school in 2003 and was shouted down by members of the faculty, not students, faculty. The tone of the questioning was embarrassingly rude and antagonistic: unbefitting any invited guest, and unimaginable to think that like tenor would have been directed at any other justice, save Justice Thomas.

I won't excuse Justice Scalia for being rude, because it sounds like he was. I do wonder about the context, i.e. what the tone of the questions had been before that young lady's.
2.6.2009 4:27pm
prison rodeo:
Cassell clerked for Nino. AS's clerks are known for being fiercely, irrationally loyal to the old coot.

QED.
2.6.2009 4:48pm
~aardvark (mail):
Paul, your insinuation that Cohen came up with the column because his network is interested in the outcome of an essentially theoretical debate is dishonest. Cohen comments on Scalia's behavior, not on the underlying issue.

That said, I believe, Cohen is wrong to use the term "bully" in this context. In technical meaning, this use of bully is incorrect. What Cohen should have said--but was proscribed from saying by the standard media taboo avoidance--was that Scalia was an asshole. This, at least, would have been accurate.
2.6.2009 5:02pm
Curmudgeonly Ex-Clerk (www):
~aardvark wrote:
Cohen comments on Scalia's behavior, not on the underlying issue.
That's flatly wrong; Cohen's column addresses both. In relevant part, Cohen writes:
Why, indeed. It's bad enough that the Justice first hid behind his black robe when Jeck asked his question. But when he finally did answer it he displayed the sort of cynical view of America, and Americans, and the American media that is completely out of touch with reality. Scalia sounds like he's living in a pre-Internet world of the 1986, when he ascended to the Supreme Court as one of Ronald Reagan's most enduring legacies. In other words, on both form and substance, the Justice simply blew it.

The fact is that there is tremendous popular interest in seeing significant portions of the Supreme Court arguments live or on tape. It's incontrovertible, for example, that the release of audio-taped oral arguments from the Court, which started only a few years ago, has not caused the sky to fall at the Court (or anywhere else). Indeed, the audio recordings have been played at great length and have helped Americans better comprehend the law and the brilliance of the men and women who practice it on that level.

Another argument often posited by anti-camera zealots is that somehow the essence of what the Court does will change when the klieg lights are turned on. But there are federal appeals courts which allow cameras in oral argument and those courts haven't been transformed into a Marx Brothers set. And surely Justice Scalia and others don't believe that they will change their style at oral argument just because the red-light turns on, do they?
2.6.2009 5:35pm
Emily Post:
The question was rude, and the girl lacked manners, but it is also rude to point out when someone lacks manners.

The proper response would have been

A slight chuckle followed by either a request for the next question, or talking about something else, and ignoring the question entirely.


You arent required to answer a question when someone is rude, although you should expect in a large crowd that not everyone will be well mannered.



The girl couldnt have actually expected a response to her question. Would you expect asking the lady behind the counter at the DMV (a public servant) to give a response to "Excuse me, what line do I need to stand in for registration renewals, and will the person waiting at that counter be as ugly as you?
2.6.2009 5:44pm
road2serfdom:
Interesing that the word "vitiated" does not appear in Cohen's column. Hmm.
2.6.2009 6:02pm
Curmudgeonly Ex-Clerk (www):
Given the extent of Cohen's tirade, it is interesting that Cohen quotes so little of Jeck's actual question and provides almost none of the surrounding context.

More than one commenter above suggests that we cannot know whether Jeck's inquiry was "nasty" or "impolite," because we do not know the actual wording of her question. It is true that we do not know the precise wording of the entire question, but I think that we do know enough to assess it.

The Palm Beach Post article, which Cohen links to in his column criticizing Scalia, reports Jeck's question as follows:
The book promotion led Florida Atlantic University student Sarah Jeck to ask Scalia if the Supreme Court's opposition to having its proceedings televised was "vitiated" by, among other things, "Supreme Court justices going out on book tours."
Regardless of what definition we give "vitiate," it is hard to construe Jeck's question as "polite," inasmuch as the "book tours" clause of her question almost certainly was intended to suggest hypocrisy, intellectual dishonesty, or the like on Scalia's part.

One cannot read Jeck's mind, of course. In addition, we are unable to assess her delivery and body language at this remove. But we do have some helpful context.

As I noted above, Jeck herself admits that she intended to needle Justice Scalia; in a Legal Times post, which Cohen also references in his column, she is reported as acknowledging that her "book tours" remark "was a little jab" at the Justice. In addition, the Palm Beach Post story seems to indicate that members of the audience understood the "gotcha" quality of Jeck's remark, noting that the question "drew laughter and applause."

The more I think about this incident, the less inclined I am to conclude that Justice Scalia was overly rude or a bully. He could have handled the situation with greater aplomb to be sure; but, his reaction seems fairly normal and understandable under the circumstances.

In any event, Cohen's take on the situation seems rather unfair in terms of its presentation of the facts. If anything, his column sort of lends credence to Scalia's substantive position on cameras in the Court (i.e., that they should not be permitted, because the resulting soundbites presented to the public will be misleading).
2.6.2009 8:02pm
bellisaurius (mail):
roads,

I didn't realize that the word vitiated was quite the issue that it was. I thought it merely meant "weakening", but (since I was curious why you brought it up)it turns out to have a secondary meaning along the lines of "corrupted morally". Well, learn something new every day. I guess I can see why he decided to be so curt (as opposed to bullying, like Bale's recent F bomb rant).
2.6.2009 8:06pm
Larry Reilly (mail):
Gee, has Scalia ever jabbed lawyers arguing before the Supreme Court? Duh. He likes to tweak and pummel them with quick and sharp questions that sometimes are sarcastic as well as off point for fun or to unbalance the speaker.

His "soundbite" answer is bull. The justices like doing their thing in the semi-privateness they get with a courtroom that has only so much seating and no cameras of any kind.
One of the justices once told me that he doesn't want cameras in the court because he likes not being recognized on the street and on airplanes, among other privacy concerns.
Soundbites?
What is the difference in getting a soundbite from a Congressional hearing and trying to get a soundbite from a Supreme Court hearing? Answer: The power of the least accountable branch to have less scrutiny of its personal styles and interpersonal dynamics.
Scalia moves easily between being a personable charmer and an arrogant bully. On this one, he blew it and he realized it.
The student's question had more than ample reason behind it. Scalia thinks the court should be able to exclude public access by camera, yet he wants to go out in public and tout his book that has to do with the court. So now he has cake crumbs on his mouth and his cake box is still full.
2.6.2009 8:43pm
Ben S. (mail):
The treatment of Scalia (and, to a lesser extent, Thomas) at public speaking engagements does little to dispel the notion that conservatives largely have a monopoly on values.

I can remember vividly when Justice Ginsburg visited my law school in Spring 2006. Although I am quite conservative in my legal views and find many of Ginsburg's legal views problematic, I felt nothing but awe and respect when I saw the Justice and was able to shake her tiny hand. I could never imagine saying anything to heckle her or any other liberal justice, and it is hard to imagine a conservative person doing so. On the other hand, liberals (apparently even liberal adult members of academia) seem to have no problems with this and will unabashedly ask impolite questions of justices and, similarly, openly boo the president.

The irony is that liberals want to perpetuate the belief that they have a monopoly on sophistication, intellect, and progressive thinking, yet so often seem to be the first ones to devolve into jeers, snide remarks, inappropriate questions, or outright name calling (a la Cohen). There are only two types of people who are capable of such conduct: fools (they don't know better) or people who lack values (they don't care).

I also agree with the sentiment that it is difficult to gauge the appropriateness of Scalia's response without knowing exactly what the student said and how she said it.

In any event, I think Scalia probably could have found a better way to handle the situation, perhaps with a witty, less-abrupt comeback (e.g., "Young lady, I object to cameras at the Supreme Court because they might interfere with orderly courtroom decorum, but---as your question demonstrates---decorum is not critical for a book tour.")
2.7.2009 2:28am
gw:
Who is Andrew Cohen?
2.7.2009 10:29am
ArthurKirkland:
Who has the notion that conservatives largely have a monopoly on values? That's as dopey as the idea that liberals have a monopoly on sophistication, intellect and progressive thinking.

Regarding the underlying issue: If anyone who opposes televised (or video-recorded) Supreme Court does not also oppose similar treatment of legislative proceedings, state and other federal court arguments, school board meetings, NFL drafts, Springsteen concerts and the like: Why not?
2.7.2009 2:00pm
ArthurKirkland:
Reviewing the original post caused my eye to grate on the final line, which accuses CBS of acting to advance a "vested interest" in securing increased openness with respect to Supreme Court arguments.

CBS shares that "vested interest" with every American, in my view, who favors open government.
2.7.2009 2:07pm
Feldman:
As Charles Dickens said when thinking of Justice Scalia, "the law's an ass."
2.7.2009 9:15pm
Larry Reilly (mail):
Something about Ginsburg's tiny hand. Politics and ideology aside, she and Scalia have different approaches in interactions with others and, in turn, get different approaches from others.
2.8.2009 11:02am

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