Nino Scalia And His Elites

Oh, the irony.  Turns out the defendant in Justice Scalia’s poster child case for the death penalty:

The death-by-injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional — for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. See McCollum v. North Carolina, No. 93-7200, cert. now pending before the Court. How enviable a quiet death by lethal injection compared with that!

is – well – innocent.  Gamso’s all over it, of course.  As he should be.

Nino’s not our Bete Noire over here at Lawyers on Strike.  We often agree with Nino.  But then we have some serious disagreements, too.

A couple of large topics beyond that are in play here, though.

First is the death penalty.  We don’t care for it, but Nino happens to be correct – absolutely, unarguably correct – that there’s nothing unconstitutional about it.  At least not now.  The constitution could be amended to make the death penalty unconstitutional, of course, but the population at large has to do that, not justices of the Supreme Court.

So to that extent, we agree with Nino.

But there’s something else going on here that we find more troubling.  A few news outlets here and there have noted how Nino’s rhetorical flourishes went embarrassingly wide the mark here, but the reaction has been muted.

We’ll hazard a guess as to why that might be the case: Nino’s “credentials” are beyond reproach.  He went to the right law school, did well there academically, and pretty much followed the standard, approved, and privileged “career path” all the way to his current high perch.  He and other members of the elite may disagree about some things, but in the most important matter of all – who’s in the club – there is no disagreement whatsoever.

A lot rides on such credentials being revered, and nothing undermines the starry-eyed reverence for them more than an episode where the man who possesses them is shown to be flagrantly wrong.  Harvard sits on a $32 billion “endowment” that is grounded in its supposed ability to identify and produce the “best and the brightest”.  But a few examples of these best and brightest being flagrantly wrong could eat into the (over) confidence that is embodied in that over-sized nest egg.

Thus, trumpeting Nino’s flagrant error doesn’t harm just Nino’s reputation; it also harms Harvard’s reputation. So it’s not just about Nino.  He has his enemies among the elite, but they’re not in the habit of cutting off their noses to spite their faces.  If they could find some personal peccadillo to tar Nino with, I’m sure they would.  Pointing out a flagrant professional error, however, undermines the mythology that credentials assure brilliance, and every Harvard graduate’s livelihood – not to mention often overblown self image – depends on that mythology.

Of course Nino doesn’t make just flagrant factual errors; he makes flagrant legal errors, too.  We have been constrained to point this out before.

We don’t fault Nino terribly for this particular legal error even though a good argument can be made that it has personally cost us dearly.  Yet it is a fairly stupid – and fairly revealing – error, because it means that not only Nino but several generations of his law clerks, all of whom have credentials rivaling his own, have never read Pyle v. Kansas.  Or if they did, they did not understand it, which in itself is something because there’s nothing terribly difficult about understanding that case.

How vigilant and defensive the elites have to be to protect and preserve a credential mythology they must themselves believe to be quite fragile.  Otherwise, why be so defensive about it?

And our press persons are slaves to the same mythology.

Credentials don’t make truth, though.  Motto notwithstanding, Harvard gets no monopoly.  But so many have a vested interest in pretending otherwise that a great “gotcha” story about Nino gets little play in the Washington and New York media centers.




Filed under Media incompetence/bias, wrongful convictions

2 responses to “Nino Scalia And His Elites

  1. This touches on something I’ve been thinking about quite a bit lately. It seems that the United States blew a fine reformist moment in the seventies and went into something of a reactionary tailspin. In some senses this reform moment marked the end of a decades-long midcentury reform campaign starting under FDR, but in others it was a distinct moment of its own, e.g., in the reactions against Vietnam and Watergate, both of which had been abuses of the imperial presidency.

    Two ultimately failed attempts at reform stand out to me from the seventies. One is the brief abolition of the death penalty by SCOTUS. If SCOTUS hadn’t reversed its own ruling, I suspect that death penalty abolition would have become widely accepted, if not exactly supported, by the public over the course of the following decades, more widely accepted as reasonable jurisprudence than Roe v. Wade, for example (although even the latter isn’t as controversial as the zealots at each extreme make it out to be). The public would have realized over time that the police, the courts, and the prisons were still generally able to protect them from violent criminals without execution or the threat of execution. It might have taken a while, but I suspect that it would have come. No one can know, of course, since SCOTUS reversed itself in the midst of public hysteria over the crime wave of the seventies and the eighties. (This crime wave, it’s worth noting, probably had less to do with penology than with generational cycles of cocooning and social engagement; Agnostic ( has a fascinating series on this cycle.) The reform moment was lost in four years.

    The other failed reform movement is the Equal Rights Amendment. The ERA came within a few state ratification votes of being put before Congress before opposition from clergy and quasireligious political agitators derailed it. Implementing the ERA would have been difficult and messy on account of the natural differences between the sexes, but I think it would have been feasible in a reformist society. The most important immediate benefit of the ERA, I believe, would have been for men, not women: protection against a repeat of the Vietnam draft. It would have been more effective than the all-volunteer army, which left the draft in place as an option and draft registration in place as a legal mandate binding on young men. The ERA probably would have forced systemic reform on military recruitment and, by extension, deployment. I’m surprised that there has never been much discussion of the benefits men would have received under the ERA. It speaks to the volume of war-between-the-sexes bullshit that passes for public discourse on gender equity.

    One likely reason why these reform efforts failed is that socioeconomic equality in the US peaked in 1973. (Agnostic has an excellent series on this, too.) To oversimplify it, Americans stopped giving a shit about the rights and welfare of those more vulnerable than themselves. I consider Jimmy Carter something of a lagging indicator in this context: elected shortly after peak equality, but before the reversal of the trend was obvious or overwhelming, more or less the last honest, mature US President, and a man endlessly savaged for what amounted to poor stage management. Carter, a Navy veteran, was defeated by a lifelong civilian movie actor who claimed to have been at the liberation of Dachau (oops) and suffered periods of pronounced senility in office. But Reagan has a cottage industry devoted to his lionization, mostly for his persona, not his accomplishments in office; the reactionaries ignore his very real success as Gorbachev’s diplomatic opposite in peacefully winding down the Cold War, because that wasn’t Captain America enough for their tastes.

    A retrospective in the Onion summarized the Carter-Reagan debates as “Let’s talk better mileage” vs. “Kill the bastards.” Infantile vindictiveness, paranoia, and arrogance won out, in a number of realms. It has been greatly inflamed ever since by sensational crime coverage in the yellow press, and it’s taken several decades for the hysteria to abate and reform to become presentable as something other than the coddling of hardened criminals.

    The propriety of SCOTUS’s shortlived abolition of the death penalty depends on whether the courts must be process-oriented in the interest of constitutional legitimacy or deserve the latitude to be outcome-oriented in the interest of equity. I generally take the latter position on serious matters like the death penalty or uninhabitable prison conditions. The public is easily inflamed to the point of hysteria by tabloid coverage of violent crime and lurid dramas like the Law and Order series, which many people can’t properly distinguish from reality. It seems vital in circumstances like these for the courts to save the republic from itself.

    Appeals to process-orientation in determining the constitutionality of the death penalty are especially rich coming from Scalia, given his reluctance to allow established appellate processes to run their course on the basis that there aren’t enough resources (judges, public funds, docket openings, etc.) to do so. I.e., that it’s better for the courts to be cheap than to do their damn jobs. If the courts aren’t willing to consistently take death penalty appeals seriously, it would be much better for them to shut down the machinery of death entirely by fiat than to pretend that they’re diligent enough to oversee it.

    The notion that the death penalty should be a democratic institution is scary. There was an op-ed in the Eugene Register-Guard the other day by Joshua Marquis, the Clatsop County District Attorney, perhaps the most vocal death penalty supporter in Oregon, that did little more than use the crowd to win the argument. Marquis suggested that Nebraska’s recent abolition of the death penalty wasn’t entirely legitimate because it was enacted by the legislature and the governor, not by plebiscite. He kept repeating that the American public supports capital punishment and that it would be wrong for anyone but the electorate to overrule this fine democratic sentiment. He badly misconstrued a recent failed ballot proposition in California to abolish the death penalty as indicating enduring support for death, when in fact it indicated unprecedented popular opposition in a state that has historically had some of the most virulent and popular pro-death penalty politics outside the Deep South. One of his arguments insinuated that “wealthy elites” are less supportive of the death penalty than workaday Americans because they’re in less fear of being murdered. If the average American is in routine fear of murder, something is very wrong with popular perceptions of violent crime.

    Marquis treated the death penalty almost as an opportunity for the electorate to vote unpopular people off the island. Granted, he’s a fringe lunatic by Oregon standards without a prayer of winning statewide office on his current platform, but his thinking is an object lesson in why the death penalty cannot safely be a democratic institution and must be a judicial institution, either overseen or abolished by a judiciary that is willing to transcend mob sentiment.

    I’m normally a Harvard abolitionist, but the local elites are often no prettier than the national ones. The best we can hope for are ones with the noblesse oblige and good judgment to save us from ourselves. Someone will always be angling to run the show; with luck and good government it may not be a psychopath.


    • Well, Andrew, you pack so many thoughts into a comment or post it could take a book to properly engage. But let me start somewhere.

      The politics of crime in America is an extremely complicated subject. I’m not disagreeing with Agnostic (honestly, haven’t read it yet but since you recommend it I intend to) but I would start with the examination of conscience each person should do for themselves. In traditional Catholicism there were all sorts of instructions on the necessity of doing that regularly and details about how to do it, but as I often point out the US was the only country on earth to start out protestant so in the west the US, popularly speaking, has had a tendency to be peculiarly lacking in this very thing. That has a number of pathological consequences, I think, among them being a very ugly tendency to externalize the evil dwelling in our own hearts, and “criminals” serve that sounding board purpose quite readily.

      Then, being also completely unreflective in that distressing and annoying low brow protestant way, this deficiency of conscience combines with the same kinds of impulses that produce, say, “championship” wrestling (Andre the Giant, anyone?) among people who are, frighteningly, actually eligible to vote, and an “elite” that has no qualms about pandering to them and capitalizing on them for personal gain, and you can get a sense of how hopelessly dysfunctional the politics of crime has always had the potential to become in this country.

      And so the anti-death penalty argument arises that bestowing the power of life and death upon such a toxic, unregulated, mob-dominated spectacle is simple madness.

      All that said I think there was, to some extent, a rational reaction to some excesses of judicial constitutional tinkering that took place in the late 1950’s and early 1960’s ostensibly favoring criminals, combined with a boom in public employment (especially police), that played a prominent role. Richard Nixon was a very unappealing politician but rode to the presidency in 1968 almost entirely as a result of seizing the “law and order” issue, so in political terms the reaction was already in full swing by then.

      Even so, I don’t think the SCOTUS can, or should, abolish the death penalty. In the first place I don’t agree that the public would eventually acquiesce, and that seems to have been borne out by events; and second, it would be intellectually dishonest: they are bound by the constitution, and the constitution explicitly provides that so long as “due process of law” is provided, the government can take someone’s life. If that’s going to be qualified the constitution will have to be changed, not case law from the SCOTUS.

      But one thing I was getting at in this post is how errors among our elites affect those further down the food chain, and Scalia’s error seemed to me a teachable moment. You have to forgive honest errors, even by the elites, but you should also be mindful of how destructive they can be. In the Scalia example, of course, Scalia and his cocktail party companions or Harvard classmates suffer no consequence whatever for his flagrant error, but Mr. McCollum stood to lose his life in one of the worse ways possible – being executed for a horrible crime he did not in fact commit.

      Scalia has never represented an actual human being, and it’s for that reason that he is especially prone to an error like that. And for that reason it’s also too bad that when he commits that error he is not forcibly confronted with its potential consequences by the only people he’s likely to listen to: other elites.

      So we take up that baton over here at LoS, but I don’t think Nino is reading.

      For what it’s worth, the other flagrant Nino error I pointed out in the linked post – that prosecutors can willfully contradict themselves in pursuit of inconsistent “wins” without violating due process – is in many ways a worse and more destructive error, but I can’t deal with that at length at the moment.

      Thanks for the comment.


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