"Jiggery-pokery"

Shorter Scalia:  "Try the veal! I'm here all week!"

Antonin Alfalfa

Earlier today, we saw an example of Scalia using his own personal history -- and empathy for his own preferred Bronze Age religious symbolism -- to argue that of course the families of Jews killed in combat would have no problem with a cross on their loved one's tombstone. Now we get an example of something that I have never seen or heard addressed. Scalia is considered an intellectual lion on the Supreme Court. Today we see that besides the fact that his "intellectualism" rests on a single chord, he's just not very interested in learning about the subjects he will be passing judgment on.

As expected, this week's Supreme Court oral arguments on Monsanto had much less to do with the pros and cons of genetically modified (GM) seeds than it did with the ins and outs of environmental regulation.

On that point, the justices who actually spoke seemed fairly skeptical of the Ninth Circuit's decision to completely halt the sale of Monsanto's Roundup Ready alfalfa seed, rather than just sending the question back to USDA to re-decide.

That said, we did get some insight into how the justices are thinking about GM agriculture. In particular, we learned that Antonin Scalia does not think that cross contamination between conventional/organic crops and GM crops is "the end of the world."

To which the attorney for Geertson Seed Farms, one of the plaintiffs, offered the entirely appropriate and accurate rejoinder: "I don't think we bore an end-of-the-world burden, Justice Scalia."

At one point, Justice Sotomayor did jump in with the fact-based question of how GM contamination could reasonably be expected to occur out in the fields. She asked an attorney whether farmers in the U.S. often rent equipment from vendors to cut their fields. The suggestion is that farmers have a legitimate worry that tools used to cut a Roundup Ready alfalfa crop on one day might leave behind some modified seeds in a conventional field the next. Scalia admitted that sure, perhaps, that could, in theory, happen. And perhaps, sure, those farmers would find their crops unsellable in GM-unfriendly Europe. But here, Scalia was convinced that the market would solve things! In every agrarian nook and cranny of the United States! "You don't think that the free market would produce companies that advertise 'We only cut natural seed fields?'" Scalia went on to answer his own question. "I'm sure it would happen."

Yes, the riches that lie out there for farm-related support industries is massive, so competitors would sprout up like...alfalfa plants in no time.

Sotomayor obviously did her homework. Not only do farmers rent their equipment, carrying all sorts of detritus to their fields, if a modified crop from one of those seeds does indeed grow, the farmer can be liable to copyright infringement suits brought by Monsanto if the farmer then saves and replants or sells the resulting seeds from the contaminated crop the farmer harvests.

Scalia could care less, brushing off a significant issue with a "the free market will solve it" laziness that would be shocking if it weren't so typical of this incurious, pompous ass.

Activist judge

I'm certain that Justice Scalia can point to the specific passage in the Constitution that lays out the "Founders' Intent" on this one.

Peter J. Eliasberg, a lawyer with the American Civil Liberties Union of Southern California, said many Jewish war veterans would not want to be honored by “the predominant symbol of Christianity,” one that “signifies that Jesus is the son of God and died to redeem mankind for our sins.”

Justice Antonin Scalia responded that the symbol in the context of a war memorial carried a more general meaning. “The cross is the most common symbol of the resting place of the dead,” he said.

Mr. Eliasberg said, “There is never a cross on the tombstone of a Jew.”

Justice Scalia, who is usually jovial even in disagreement, turned angry. “I don’t think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead,” he said. “I think that’s an outrageous conclusion.”

And it would also be outrageous to conclude that Scalia's Catholicism has no bearing on his decisions whatsoever. Empathy be damned.

Scalia throws the courts under the bus

Dahlia Lithwick is really smart.

And in the end, this is the fight between the majority and the dissent: Kennedy and the justices who signed his opinion (David Souter, John Paul Stevens, Stephen Breyer, and Ruth Bader Ginsburg) are worried about the very real risk of a lifetime of mistaken imprisonment. And the dissenters (Scalia, Roberts, Clarence Thomas, and Samuel Alito) are worried about the risk of ... what? Not an actual mistaken release, but a day in court. The big threat here is of federal court review that may—somewhere far down the line, and at the moment entirely hypothetically—result in the release of a detainee or (more attenuated still) the disclosure of a piece of hypothetical information that could help the terrorists in their fight against us.

Six years of no trials, in the eyes of the dissenters, is more than justifiable in the hopes of dozens more years of no trials. And it's precisely that sense of time passing without consequence that so infuriates the majority. Justices Kennedy, Breyer, and Souter each observe in their opinions today that the passage of so many years while detainees waited and watched was preposterous. This is not some demented Supreme Court prematurely racing into a war zone with morning breath, uncombed hair, and misguided good intentions. This is a deliberative Supreme Court saying that it's been standing by for six long years. That's how long it's been since the Bush administration started doing battle with the federal courts alongside its battle against the enemy. Responding to the dissenters' fatuous complaint that the majority should have waited to see how the tribunals played out before ruling on their constitutional infirmity, Kennedy observes that, as yet, the game still hasn't even started, and "the costs of delay can no longer be borne by those who are held in custody." As David Barron points out at "Convictions," the court is saying that if Congress wanted to suspend the right to habeas, it should have done so, clearly and definitively. The court is also saying that six years of detainee victories that—for all the change on the ground at Guantanamo—might as well have been losses are not exactly a ringing endorsement of the American legal system.

But Scalia is such a nice guy when you get to know him

Just a day after his fellating by Leslie Stahl on 60 Minutes, Scalia once again shows how "original" his "originalism" really is.