January 12th, 2010
06:07 PM ET
5 years ago

Scalia comments draw laughter, puzzlement

 Supreme Court oral arguments are often a time for the ever-colorful Justice Antonin Scalia to attract attention with a provocative display of his rhetorical gifts and sense of humor.
Supreme Court oral arguments are often a time for the ever-colorful Justice Antonin Scalia to attract attention with a provocative display of his rhetorical gifts and sense of humor.

Washington (CNN) - Oral arguments at the Supreme Court are often a time for the ever-colorful Justice Antonin Scalia to attract attention with a provocative display of his rhetorical gifts and sense of humor. Both were in display Tuesday in a pair of cases heard in public session.

The first dealt with a U.S. law allowing sex offenders who have served their prison sentences to remain in federal custody under what are called "civil commitment" laws.

The fun started when Solicitor General Elena Kagan - arguing in favor of such laws - mistakenly referred to Scalia as the chief justice.

"Mr. Chief - excuse me - Justice Scalia," said Kagan, "I didn't mean to promote you quite so quickly." That drew laughter from the audience of several hundred.

Replied Scalia to Kagan, "I'm sure you didn't," bringing a huge roar.

"Thanks for thinking it was a promotion," said the real chief justice, John Roberts, sitting next to Scalia on the nine-person bench.

The solicitor general quickly got her bearings and referred to the 73-year-old justice by his correct title. Kagan, by the way, was a finalist for the high court vacancy last year that went to Justice Sonia Sotomayor.
Government sources say she would be given serious consideration if another high court vacancy were to open up in the next few years.

Less than an hour later, in a separate international child custody case, Scalia turned heads by suggesting federal courts show fidelity to the views of courts from other nations on the issue.

"The purpose of a treaty is to have everybody doing the same thing, and if it's a case of some ambiguity," in U.S. courts, he said, "we should try to go along with what seems to be the consensus in other countries that are signatories to the treaty."

Sounds like a reasoned statement, but the conservative justice has been very outspoken in the past when his more liberal colleagues consult foreign law when interpreting federal law and the U.S. Constitution. His comments Tuesday drew puzzled looks and even smiles from the audience.

When it comes to international treaty obligations by the United States, Scalia has articulated views somewhat similar to those expressed Tuesday, but not in such clear terms that appear to contradict his previous statements on the subject.

Those statements include his writing in a 2002 case, when Scalia dissented from the high court decision banning the death penalty for the mentally retarded. The majority opinion cited international condemnation of the practice.

"The Prize for the Court's Most Feeble Effort to fabricate 'national consensus' (against executing the mentally retarded)," wrote the justice, "must go to its appeal ... to the views of the 'world community,' whose notions of justice are (thankfully) not always those of our people."

And just last week, in a speech in Mississippi, Scalia noted, "If there was any thought absolutely foreign to the founders of our country, surely it was the notion that we Americans should be governed the way Europeans are. I dare say that few of us here would want our life or liberty subject to the disposition of French or Italian criminal justice - not because those systems are unjust - but because we think ours is better." He said American judges who advocate use of international law in their rulings do it selectively, such as nations who have widely differing views on whether abortion is legal.

Scalia offered no further thoughts or explanations for his latest comments on treaty interpretations by foreign courts.


Filed under: Popular Posts • Supreme Court
soundoff (11 Responses)
  1. Charlie in Maine

    I hate to be a stick in the mud but I find very little that is funny about this court or Scalia in particular. Though I was wondering why is it that the pro-Death Penalty Scalia still gets Communion while the pro-choice Dems do not. A rule is a rule right? I thought the big wigs were against cafeteria Catholisism? Hmmmm?

    January 12, 2010 06:20 pm at 6:20 pm |
  2. Stewart

    Remember, Scalia is the same guy who said torture was constitutional and wasn't "cruel and unusual punishment," because it wasn't punishment and was instead a way to get information. Stand up guy that Scalia is. Good thing he isn't in an important position or anything. Oh wait, he gets a lifetime membership to the final arbiter of legality in the United States you say? Crap.

    January 12, 2010 06:20 pm at 6:20 pm |
  3. NSR

    Show fidelity to the views of courts from other nations? Are you kidding me? We seem to lose more and more of our sovereignty and national identity more and more each day. Amazing.

    January 12, 2010 06:40 pm at 6:40 pm |
  4. jrzshor

    there is a difference between signed treaties that you are party to and world opinion on law.

    January 12, 2010 06:52 pm at 6:52 pm |
  5. Fredric, Las Vegas

    Is there any chance that Scalia will vote for the civil rights of gays and allow them to marry like they do in 3rd world countries, catholic countries around the globe. It seems that the United States is not developing into the progressive and open and equitable society our forefathers intended.

    January 12, 2010 07:02 pm at 7:02 pm |
  6. Henry Miller, Libertarian

    "If there was any thought absolutely foreign to the founders of our country, surely it was the notion that we Americans should be governed the way Europeans are."

    I hope Scalia keeps that in mind when the Court hears arguments concerning the Constitutionality of the health-care welfare bill–and then goes on keeping it in mind when States start bringing Tenth Amendment suits.

    January 12, 2010 07:02 pm at 7:02 pm |
  7. Frank, San Diego

    Justice Scalia's remark about following the lead of courts in other countries is very puzzling indeed. But it is very hopeful.

    Perhaps Justice Scalia and Justice Breyer (who have been engaged in an ongoing debate on this issue) can now find some common ground on that subject. If so, that will help the other justices find their way in what is likely to be an increasingly important area of the law.

    January 12, 2010 07:43 pm at 7:43 pm |
  8. ThinkAgain

    Sounds like Scalia is losing it!

    January 12, 2010 08:13 pm at 8:13 pm |
  9. Jeff Brown in Jersey

    What a knee slapper that Scalia fellow is, I'm doubled over laughing!
    :-(

    January 12, 2010 08:34 pm at 8:34 pm |
  10. Bob

    wow that was hilarious...."didnt mean to promote you"....HAHAHAHA

    January 12, 2010 08:46 pm at 8:46 pm |
  11. Jon

    There is no contradiction. Scalia's comments today specifically related to international TREATIES not Domestic criminal or civil law. Treaties are, by definition International.

    January 12, 2010 08:56 pm at 8:56 pm |