Has Scalia Gone Off The Rails?

scaliashot.jpgThe Boston Herald published a photo of Justice Scalia today documenting him flipping off a Herald reporter. (I’ve attached a different photo here. Call it USNewsophobia. The real image, with accompanying story, is only a click away.) This news story broke a couple of days back, and Scalia apparently argued that his gesture – flipping his fingers off his chin – had been misunderstood. The photographer released the photo to show that reporters had gotten the story right the first time.

Am I unusual in thinking that the Justice’s conduct is not only inappropriate but downright weird? I mean, this guy is on the SUPREME COURT. If I can learn to censor myself as part of my southern law prof persona, I have to think that the admittedly volatile Justice Scalia can do likewise. How hard can it be to avoid responding “fuck you” to a reporter? (And would the Senate confirm a similarly qualified candidate who had exhibited this sort of conduct prior to his or her confirmation hearings?)

Perhaps he’s hoping to run for vice-president.

Update. Let me first admit that I had not been following the story – particularly the Justice’s letter to the editor – as closely as I ought to have. I enjoyed the Justice’s originalist explanation a great deal. Do I think he was unaware of the more commonly understood (modern) meaning of the gesture? I’ll reserve judgment. That said, even if he was engaging in a bit of cultural arbitrage – no, particularly if he was – I have to give it up to the Justice.

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17 Responses

  1. The gesture strikes me as the least problematic thing Justice Scalia has done of late. It seems as though he can’t stop from stating his already prejudged positions about cases and issues currently before the Supreme Court. And nearly every year brings new Justice Scalia controversies.

    My colleague Jonathan Turley has this essay on Scalia’s recent and past antics. Jonathan writes:

    In 1996, he denounced theories of a constitutional right to die when there were two cases on that very question pending before the court. In 2003, he appeared at a “religious freedom rally” sponsored by the Knights of Columbus in Virginia to denounce attacks on the Pledge of Allegiance when a challenge to the pledge was pending before the court. Rather than wait for the oral arguments, Scalia pumped up the audience by declaring that the effort to remove God from the Pledge of Allegiance was “contrary to our whole tradition.” On that occasion, Scalia had to recuse himself.

    The latest public proclamation from Scalia is even worse. In Switzerland, Scalia responded to a question about the claims of detainees like Salim Ahmed Hamdan by saying “give me a break.” Hamdan — Osama bin Laden’s former driver — is arguing that the federal courts should have jurisdiction over his case, but Scalia dismissed the premise of his claims and emphasized that “if he was captured by my army on a battlefield, that is where he belongs. I had a son on that battlefield, and they were shooting at my son, and I’m not about to give this man who was captured in a war a full jury trial. I mean, it’s crazy.”

    Each of these incidents brings new debates. Was the gesture obscene? Did Scalia prejudge the cases? Should he recuse himself? Everybody can make a foolish mistake at one point or another — say the wrong thing, make the wrong gesture. Typically, an apology should follow. But at some point, the totality of Justice Scalia’s behavior ought to be carefully examined. Is this kind of repeated controversial behavior appropriate for a Supreme Court Justice?

  2. Will Baude says:

    Scalia claims in a letter (and the picture seems to corroborate this, and there’s no particular reason to disagree) to have been making a different gesture, not obscene.


  3. I think that Scalia’s comments on cases should be getting more attention than his gesture.

    Wonkette has this useful post describing the nature of the gesture.

  4. Rick Garnett says:

    Certainly, if Justice Scalia *really* did make the f*** off gesture, then he did something inappropriate. That said, the question to which he was responding — basically, “as a Justice, shouldn’t you not be seen going to Mass” — was strikingly offensive. Not a justification, perhaps, but certainly an excuse.

  5. joe patent says:

    this is all much ado about nothing. You liberal law school professors have nothing better to do than criticize a man for being perturbed when a reporter questions the choice of being seen going to mass?

  6. none@ says:

    you dont have life tenure. why should he bother?

  7. Paul Gowder says:

    Who cares about the gesture, as Dan said, the man has been freely admitting that he’s pre-judged cases coming up before the court.

    (And why on earth did the photographer get fired?? Good to know the Catholic Church is still into censorship.)

  8. Lex Aquila says:

    A note on this blog’s style: I’m not sure it’s a spoken policy, but the posting of an image, picture, etc., with blog entries is well-taken. Looking over the blog, it adds something to each story aesthetically, if nothing else, for their to be some sort of image. Good job.

  9. David S. Cohen says:

    I had the same reaction as you, Dan. Coupled with the incidents Daniel notes in his comments, Scalia is really taking liberties with his public persona these days.

    As for his rebuttal, how long do you think he had his law clerk work on that? Interesting assignment….

    The Philly Inquirer had its own take on this issue this morning, linked here. Several South Philly Italian-Americans weighed in, many saying Scalia went beyond appropriate public behavior with the gesture.

  10. Bruce says:

    I’m a liberal law professor, but I agree with Joe Patent that there’s not much here here. For one thing, I sympathize with public figures who are hounded by the press. Maybe (just maybe!) Sean Penn shouldn’t beat them up, but an obscene gesture now and then seems reasonable. Dan Solove, you’re a privacy guy — don’t you agree?

  11. Bruce, I shouldn’t take the bait you offer, but we expect different standards of behavior from celebrities and Supreme Court justices. What is reasonable for Courtney Love to do is different from what’s reasonable for Justice Scalia. So perhaps you’re applying the “reasonable celebrity” standard instead of the “reasonable Supreme Court Justice standard.” Of course, one could surely quip that there is no such thing as the “reasonable Supreme Court Justice,” but we all know that these standards are ideals. . . .

    But I wish that all the attention weren’t on the gesturing — in the end, it’s not a big deal. The really outrageous matter is Scalia’s speaking out about cases he’s currently supposed to be deciding.

  12. In the movie Donnie Brasco, Johnny Depp playing undercover agent Joe Pistone is asked, “what does ‘forget about it” mean?” Donnie Brasco anwers

  13. In the movie Donnie Brasco, Johnny Depp playing undercover agent Joe Pistone is asked, “what does ‘forget about it’ mean?” Donnie Brasco answers:

    “‘Forget about it’ is like if you agree with someone, you know, like ‘Raquel Welsh is one great piece of ass… forget about it.’ But then, if you disagree, like ‘A Lincoln is better than a Cadillac? Forget about it!’ you know? But then, it’s also like if something’s the greatest thing in the world, like Mingrio’s Peppers, ‘forget about it.’ But it’s also like saying ‘Go to hell!’ too. Like, you know, like ‘Hey Paulie, you got a one inch pecker?’ and Paulie says ‘Forget about it!’ Sometimes it just means forget about it.”

    As someone who has lived in Southern Italy, I can vouch for Scalia that like “forget about it,” the gesture in question can have many meanings (some obscene, some benign). In the context of the Boston Herald story was Scalia being obscene? Forget about it! Was he simply telling the reporter that he does not care what she thinks? Forget about it! Is this much ado about nothing? Forget about it!

    (The source of the quote from Donnie Brasco: http://www.whysanity.net/monos/donnie.html)

  14. Big Hands says:

    What up with all the evil people in the world and their common trait: small hands. Scalia has small hands. So does that guy on the McLaughlin group–Tony what’s his name.

  15. ce.Anonymous says:

    This is much ado about nothing. The story (as a “news” story) is absurd on its face–a completely contrived mountain out of a molehill.

  16. SCOTUSblog says:

    Blog Round-Up – Monday, April 3rd

    Here is Concurring Opinions with a post titled, “Has Scalia Gone Off the Rails?” The WSJ Law Blog has this post titled, “Justice Scalia’s Gesture: Obscene or Not?” The Volokh Conspiracy has this post reporting that the Raich oral argument…

  17. cynic says:

    Get a life.