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The Liberal Face of Justice Scalia
A more nuanced picture of Justice Antonin Scalia’s 30-year stint on the nation’s highest court tells a tale that complicates the conservative-mouthpiece narrative.
Antonin Scalia, a justice nicknamed "Nino", is being portrayed as one of the Supreme Court’s staunchest conservative voices. Indeed he was: Justice Scalia authored a 5-4 opinion in 2008 declaring that the Second Amendment guarantees an individual's right to bear arms. He was a dependably acerbic voice against gay rights, warning presciently in cases from 2003 and 2013 that the court was headed inexorably toward a ruling that would make same-sex marriage a constitutional right. He believed that Roe v. Wade, the 1973 ruling that established a right to abortion, was wrongly decided. He embraced capital punishment and took a skeptical view of the “separation of church and state,” regarding the division as phony and ungrounded in the constitutional text. And most notoriously, he supplied one of the five votes that made George W. Bush the nation’s 43rd president in the explosive case Bush v. Gore. (When people would complain about this in later years, he famously told them to “get over it.”)
But a more nuanced picture of Justice Scalia’s 30-year stint on the nation’s highest court tells a tale that complicates the conservative-mouthpiece narrative that has led to some very unsavory cheering of his demise on Twitter. For all of his apparent advocacy of far-right positions, Justice Scalia has written opinions that liberals have reason to cheer. And more importantly, his intellectual temperament reflects an openness to ideas that few ideological liberals seem to have these days.
Nino’s liberal jurisprudence
Perhaps the most notable case in which Justice Scalia voted contrary to his personal ideology was Texas v. Johnson, a 1989 ruling that struck down a law banning the burning of the American flag. Scalia was no flag-burner himself, of course, and he admitted to reviling people who desecrated this symbol of the American republic. But he refused to join either of the two dissents and voted with the Court’s liberal justices to hold that the First Amendment protects critics of the government who choose to express their disdain for the country by setting its flag aflame.
While Justice Scalia’s originalism made him an unswerving vote to uphold death-penalty laws (he liked to point out that the Constitution itself refers to capital punishment, so the Eighth Amendment cannot be understood to ban it), he voted time and time again on the side of criminal defendants. His vehicle for coming to their rescue was the Sixth Amendment, one of the more obscure harbors in the Bill of Rights that became more robust as a result of Justice Scalia's advocacy. He pushed his fellow justices to take more seriously the guarantee of a jury trial and especially the so-called “Confrontation Clause,” a provision that requires criminal defendants to be faced (in person) by their accusers. A year ago, Justice Scalia took his frequent ally Justice Samuel Alito to task for “shoveling ... fresh dirt upon the Sixth Amendment right of confrontation so recently rescued from the grave” in a decision Scalia had written in 2004.
One of the questions that will remain a mystery is how Justice Scalia would have voted in one of this term’s biggest cases: a challenge to the power of public-sector unions to charge non-members “agency fees” to facilitate collective bargaining. Justice Alito has been itching for years to abandon a 1970s-era Supreme Court precedent that permitted unions to charge non-members these fees for bargaining for their wages and benefits (but not for political advocacy). In the oral argument in Friedrichs v. California Teachers Association last month, Justice Scalia seemed to be edging toward Alito’s position that non-members have a right not to subsidize union speech. But in a previous ruling from 1991, he wrote that “where the state imposes upon the union a duty to deliver services it may permit the union to demand reimbursement from ... nonunion members of the union’s own bargaining unit.” Justice Scalia was no ideological friend of organized labor, but the logic of his past rulings could conceivably have led him to be the unions’ savior this spring.
Nino’s penchant for engaging with rival views
The stereotypical conservative, in the eyes of liberals, is stuffy and closed-minded, set in his ways and allergic to ideas that differ from his. This caricature cannot be ascribed to Justice Scalia. In contrast to most of his brethren, who surround themselves with law clerks with roughly similar views about the law and politics, Justice Scalia went out of his way most years to hire one clerk who thought quite differently from him. The liberal clerk would help him wrestle with the opposing side of a case to enable him to fashion more deeply reasoned, more persuasive opinions.
David Axelrod, a former advisor to President Barack Obama, tells a remarkable story about how willing Justice Scalia was to entertain opposing viewpoints. When Obama was mulling over a successor for David Souter, who retired in 2009, Scalia offered some surprising advice: “'Let me put a finer point on it,' the justice said, in a lower, purposeful tone of voice, his eyes fixed on mine. 'I hope he sends us Elena Kagan.'” Sonia Sotomayor got the nod from Obama that year, but when another seat opened up, he did indeed choose Elena Kagan, an Obama solicitor general and strong liberal voice. Axelrod writes, “I was surprised that a member of the court would so bluntly propose a nominee, and intrigued that it was Kagan, the former Harvard Law School dean who was appointed solicitor general by Obama to represent the government before the Supreme Court. Though she had worked on policy in the Clinton administration and had a reputation for pragmatism, Kagan plainly would be a liberal in the context of the court. ... Each was a graduate of Harvard Law School and had taught at the University of Chicago Law School, though in different eras. They were of different generations, he the son of an Italian immigrant, she a Jew from New York City's left-leaning West Side. But they shared an intellectual rigor and a robust sense of humor. And if Scalia could not have a philosophical ally in the next court appointee, he had hoped, at least, for one with the heft to give him a good, honest fight.”
This integrity and pugnacious spirit is captured poignantly by another liberal justice, the redoubtable Ruth Bader Ginsburg, his ideological opponent and “best buddy”:
"Toward the end of the opera Scalia/Ginsburg, tenor Scalia and soprano Ginsburg sing a duet: 'We are different; we are one,' different in our interpretation of written texts, one in our reverence for the Constitution and the institution we serve.
From our years together at the D.C. Circuit, we were best buddies. We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation.
Justice Scalia nailed all the weak spots — the 'applesauce' and 'argle bargle'—and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh."
The bottom line
Just as Justice Scalia sought out great legal minds to argue with him and sharpen his arguments, it behooves Americans who disagreed with him vehemently on any number of issues to learn from his example. Democracy is not well conducted by citizens who demonize their political opponents and feed their minds exclusively with ideas they already have by consulting news sources, blogs, and talk shows that massage preconceived views. Much better, the example of Justice Scalia shows, to listen, argue, and engage while respecting your interlocutor.
Steven V. Mazie is Professor of Political Studies at Bard High School Early College-Manhattan and Supreme Court correspondent for The Economist. He holds an A.B. in Government from Harvard College and a Ph.D. in Political Science from the University of Michigan. He is author, most recently, of American Justice 2015: The Dramatic Tenth Term of the Roberts Court.
Image credit: shutterstock.com
Follow Steven Mazie on Twitter: @stevenmazie
Emotional intelligence is a skill sought by many employers. Here's how to raise yours.
- Daniel Goleman's 1995 book Emotional Intelligence catapulted the term into widespread use in the business world.
- One study found that EQ (emotional intelligence) is the top predictor of performance and accounts for 58% of success across all job types.
- EQ has been found to increase annual pay by around $29,000 and be present in 90% of top performers.
The achievement is an important milestone in quantum computing, Google's scientists said.
- Sycamore is a quantum computer that Google has spent years developing.
- Like traditional computers, quantum computers produce binary code, but they do so while utilizing unique phenomena of quantum mechanics.
- It will likely be years before quantum computing has applications in everyday technology, but the recent achievement is an important proof of concept.
How quantum computers differ from traditional computers<p>Like traditional computers, quantum computers produce binary code to execute computing functions. But instead of using transistors to represent the ones and zeroes, as traditional computers do, quantum computers like Sycamore use quantum bits, or "qubits."</p><p>Qubits are extremely tiny pieces of hardware that act like subatomic particles, utilizing quantum phenomena like entanglement, superposition, and interference. Qubits can represent ones and zeroes. But thanks to superposition, qubits are also able to represent multiple states at the same time, meaning they can make calculations much faster than traditional computers. That's what helped Sycamore recently outperform a supercomputer.</p><p>Sycamore achieved "quantum supremacy," which occurs when a quantum computer can do something that a traditional computer cannot. To pass this benchmark, Google engineers pit Sycamore against the world's leading supercomputer, Summit, which is housed at Oak Ridge National Laboratory in Tennessee.</p><p>"Summit is currently the world's leading supercomputer, capable of carrying out about 200 million billion operations per second," William Oliver, a physicist at the Massachusetts Institute of Technology, wrote in a <a href="https://www.nature.com/articles/d41586-019-03173-4" target="_blank">"News and Views" piece</a> for <em>Nature</em>.</p><p>But the contest between Sycamore and Summit involved a highly specific task, one that was specifically designed to give a competitive edge to a quantum computer like Sycamore.</p>
Beating the world's leading supercomputer<p>The task involved estimating how likely it was that a processor would produce some "bitstrings" more often than others. As you continue to add information to the equation, it becomes exponentially difficult for traditional computers to conduct the calculations. (You can read more about the experiment <a href="https://ai.googleblog.com/2019/10/quantum-supremacy-using-programmable.html" target="_blank">here</a>.)</p><p>"We performed a fixed set of operations that entangles 53 qubits into a complex superposition state," Ben Chiaro, a graduate student researcher in the Martinis Group, which conducted the experiment, told <em><a href="https://www.sciencedaily.com/releases/2019/10/191023133358.htm" target="_blank">Science Daily</a></em>. "This superposition state encodes the probability distribution. For the quantum computer, preparing this superposition state is accomplished by applying a sequence of tens of control pulses to each qubit in a matter of microseconds. We can prepare and then sample from this distribution by measuring the qubits a million times in 200 seconds."</p><p>"For classical computers, it is much more difficult to compute the outcome of these operations because it requires computing the probability of being in any one of the 2^53 possible states, where the 53 comes from the number of qubits -- the exponential scaling is why people are interested in quantum computing to begin with," Brooks Foxen, another graduate student researcher in the Martinis Group, told <em>Science Daily</em>. "This is done by matrix multiplication, which is expensive for classical computers as the matrices become large."</p><p>But the specific nature of this task has led some to question the utility of quantum computers like Sycamore.</p><p>"One criticism we've heard a lot is that we cooked up this contrived benchmark problem—[Sycamore] doesn't do anything useful yet," Hartmut Neven, a Google engineering director said at a press event on Wednesday. "That's why we like to compare it to a Sputnik moment. Sputnik didn't do much either. All it did was circle Earth. Yet it was the start of the Space Age."</p>
A proof of concept for quantum computing<p>Although it could be decades until we see quantum computing powering everyday devices, Sycamore serves as a proof of concept that there exists a form of computing that has the potential to be vastly superior to traditional computing.</p><p>"This demonstration of quantum supremacy over today's leading classical algorithms on the world's fastest supercomputers is truly a remarkable achievement and a milestone for quantum computing," Oliver wrote in his piece for <em>Nature</em>. "It experimentally suggests that quantum computers represent a model of computing that is fundamentally different from that of classical computers. It also further combats criticisms about the controllability and viability of quantum computation in an extraordinarily large computational space (containing at least the 253 states used here)."</p>
A study published Friday tested how well 14 commonly available face masks blocked the emission of respiratory droplets as people were speaking.
- The study tested the efficacy of popular types of face masks, including N95 respirators, bandanas, cotton-polypropylene masks, gaiters, and others.
- The results showed that N95 respirators were most effective, while wearing a neck fleece (aka gaiter) actually produced more respiratory droplets than wearing no mask at all.
- Certain types of homemade masks seem to be effective at blocking the spread of COVID-19.
Fischer et al.<p>A smartphone camera recorded video of the participants, and a computer algorithm counted the number of droplets they emitted. To establish a control trial, the participants spoke into the box both with and without a mask. And to make sure that the droplets weren't in fact dust from the masks, the team conducted more tests by "repeatedly puffing air from a bulb through the masks."</p>
Fischer et al.<p>The results, published Friday in <a href="https://advances.sciencemag.org/content/early/2020/08/07/sciadv.abd3083" target="_blank">Science Advances</a>, showed that some masks are pretty much useless. In particular, neck fleeces (also called gaiters) actually produced more respiratory droplets compared to the control trial — likely because the fabric breaks down big droplets into smaller ones.</p><p>The top three most effective masks were N95 respirators, surgical masks, and polypropylene-cotton masks. Bandanas performed the worst, but were slightly better than wearing no mask at all.</p>
Fischer et al.<p>Research on mask efficacy is still emerging. But the new results seem to generally align with <a href="https://newsroom.wakehealth.edu/News-Releases/2020/04/Testing-Shows-Type-of-Cloth-Used-in-Homemade-Masks-Makes-a-Difference" target="_blank" rel="noopener noreferrer dofollow">prior tests</a>. For example, a study from June published in <a href="https://aip.scitation.org/doi/10.1063/5.0016018" target="_blank" rel="noopener noreferrer dofollow">Physics of Fluid</a> found that bandanas (followed by folded handkerchiefs) were least effective at blocking respiratory droplets. That same study also found, as <a href="https://newsroom.wakehealth.edu/News-Releases/2020/04/Testing-Shows-Type-of-Cloth-Used-in-Homemade-Masks-Makes-a-Difference" target="_blank" rel="noopener noreferrer dofollow">others have</a>, that masks made from multiple layers of quilter's fabric were especially effective at blocking droplets.</p><p>The researchers hope other institutions will conduct similar experiments so the public can see how well different masks can block the spread of COVID-19.</p><p style="margin-left: 20px;">"This is a very powerful visual tool to raise awareness that a very simple masks, like these homemade cotton masks, do really well to stop the majority of these respiratory droplets," Fischer told CNN. "Companies and manufacturers can set this up and test their mask designs before producing them, which would also be very useful."</p>
Sharing QAnon disinformation is harming the children devotees purport to help.
- The conspiracy theory, QAnon, is doing more harm than good in the battle to end child trafficking.
- Foster youth expert, Regan Williams, says there are 25-29k missing children every year, not 800k, as marketed by QAnon.
- Real ways to help abused children include donating to nonprofits, taking educational workshops, and becoming a foster parent.
Real ways you can help stop child trafficking<span style="display:block;position:relative;padding-top:56.25%;" class="rm-shortcode" data-rm-shortcode-id="21fc2dc85391501eec28c4bf46d7db15"><iframe type="lazy-iframe" data-runner-src="https://www.youtube.com/embed/AXL0q9jNZGU?rel=0" width="100%" height="auto" frameborder="0" scrolling="no" style="position:absolute;top:0;left:0;width:100%;height:100%;"></iframe></span><p>Williams is the founder and CEO of <a href="http://www.seenandheard.org/" target="_blank">Seen and Heard</a>, a Los Angeles-based nonprofit that helps foster youth develop character through the performing arts. She's been involved with foster youth for years; I <a href="https://bigthink.com/politics-current-affairs/child-sex-trafficking" target="_self">wrote about her work</a> in child trafficking just over a year ago. Tragically, since that time, the situation for these children has only gotten worse, in large part because of QAnon.</p><p>Williams says child trafficking is an easy cause to rally people together. Fear is also a powerful unifying force, one that QAnon believers are already primed for via the news they consume. Almost every parent cares about their children, making them the ideal target to solidify groups. </p><p>The real problem, she says, is that the youth she works with are falling for these conspiracy theories. Trauma is a particularly powerful tool for indoctrination. If you're a teenager that's been abducted or abused, your trust level is already extremely low. Then you read about a global cabal of powerful men (and a few women) secretly abusing children, and the narrative seems ready-made for your personal history.</p><p>When Williams tried to "lovingly and kindly correct" the youth she was working with after learning about the Wayfair conspiracy, the girls' response was, "well, who owns the media?" </p><p style="margin-left: 20px;">"She goes from this small little thing to a QAnon talking point. I've been thinking about why she would believe such a preposterous idea—and there are others; it's not just one student, and they're in in deep. I think that when something horrific happens to you as a child, it's a lot easier to distance yourself from the immediate reality that it was an uncle or a parent or a sibling that hurt you. By detaching from that immediate person, they project it onto Bill Gates or Chrissy Teigen. Then it's not so personal, it's global." </p>
A man wear a shirt with the words Q Anon as he attends a rally for President Donald Trump at the Make America Great Again Rally being held in the Florida State Fair Grounds Expo Hall on July 31, 2018 in Tampa, Florida.
Photo by Joe Raedle/Getty Images<p>As Williams mentions, there are over 30,000 kids in foster care in the Los Angeles area alone. It's easy to fall through the cracks. The systems in place aren't perfect; they're certainly underfunded. When you're in a system trying to support you yet isn't capable of doing so, viewing the world as imperfect, and even harmful, becomes the lens through which you see reality. Again, this makes for a perfect indoctrination tool.</p><p>One popular QAnon talking point is that 800,000 children are missing. As Williams says, child trafficking experts "don't buy this for a minute." The number makes for a good meme but a poor representation of the problem. </p><p>To source better data, Williams turns to the <a href="https://www.missingkids.org/" target="_blank">National Center for Missing and Exploited Children</a> (NCMEC) and the <a href="https://www.fbi.gov/services/cjis/ncic" target="_blank" rel="noopener noreferrer dofollow">National Crime Information Center</a> (NCIC). An important factor when reading data: if a teacher <em>and</em> a caregiver report a missing child to NCIC, that counts as two children, not one, which accounts for some of the fluctuations in numbers. In total, between 25,000 and 29,000 kids go missing every year. Importantly, 94 percent of those children are recovered within four to six weeks. </p><p style="margin-left: 20px;">"They're not documenting the recovery rate. It's not like these numbers are perpetually hanging out there. So this 800,000 number is just ludicrous." </p><p>Williams compares what's going on to Black Lives Matter. Blacking out your Instagram profile picture is performative. It signals that you actually care, which is great, but if you're not supporting Black-owned businesses, for example, there are no teeth to your activism. </p><p>Of course, blacking out your profile doesn't cause the real-world harm the QAnon virus does. Sharing misinformation is ultimately harmful to the children in need of help. Williams offers the resources below—ranging from donations to nonprofits to educational trainings to becoming a foster parent—for people that actually want to do something to help victims of sexual and physical abuse. They might not make a great Twitter meme, but in the actual world, this support makes all the difference. </p><p><strong>To report abuse/neglect, call the child abuse hotline: 800.540.4000 (LA county) / 800.422.4453 (National)</strong></p><ul><li>Support anti-trafficking organizations by donating to <a rel="noopener noreferrer dofollow" href="http://savinginnocence.org/" target="_blank">Saving Innocence</a>, which runs the continuum of care from rescue to recovery, <a href="http://gozoe.org/" target="_blank" rel="noopener noreferrer dofollow">Zoe</a>, a reputable faith-based organization, and <a rel="noopener noreferrer dofollow" href="https://withtwowings.org/" target="_blank">Two Wings</a>, which helps to rehabilitate female survivors</li><li><a rel="noopener noreferrer dofollow" href="http://www.nolabrantleyspeaks.org/" target="_blank">Nola Brantley</a> offers in-person and online trainings to help combat the commercial sexual exploitation of children</li><li><a rel="noopener noreferrer dofollow" href="http://instagram.com/imrebeccabender" target="_blank">Rebecca Bender</a> is a trafficking survivor that runs "Myth Busters," which combats conspiracy theory disinformation</li><li>The <a href="https://www.instagram.com/missingkids/" target="_blank" rel="noopener noreferrer dofollow">National Center</a> of Missing and Exploited Children</li><li>Operation <a href="https://www.instagram.com/ourrescue/" target="_blank" rel="noopener noreferrer dofollow">Underground Railroad </a></li><li><a href="https://www.instagram.com/defendinnocence/" target="_blank" rel="noopener noreferrer dofollow">Defend Innocence</a> offers tips for parents and caregivers to keep kids safe</li></ul><p><span></span>--</p><p><em>Stay in touch with Derek on <a href="http://www.twitter.com/derekberes" target="_blank">Twitter</a>, <a href="https://www.facebook.com/DerekBeresdotcom" target="_blank">Facebook</a> and <a href="https://derekberes.substack.com/" target="_blank">Substack</a>. His next book is</em> "<em>Hero's Dose: The Case For Psychedelics in Ritual and Therapy."</em></p>