Civility and Justice.

October 4, 2006 · Filed under Law, Poli-ticklish

Yesterday, as I was driving from work to tutoring, radio tuned (as nearly always) to NPR, I heard an All Things Considered story about the current Supreme Court consideration of the standard for deportation and the definition of “aggravated felony.” “At issue,” explains the program’s website, “is not whether someone should be deported for committing a felony, but whether states may set a tougher standard for staying in the United States than does the federal government, which has the power to regulate immigration.” In one example given in the story (pardon the lack of citation, I can’t find this case on the internets), a Trinidadian grandmother who came to the U.S. when she was 11 was convicted of simple marijuana possession under state law, which considers such possession a felony. The same charge, under federal law, is a misdemeanor. Because she now has a felony on her record, she is facing deportation; the case before the Supreme Court will determine whether Grandma can stay in the U.S.

What struck me about this story, besides the patent stupidity of attempting to label simple possession an aggravated felony in order to deport legal residents, was this statement by (our favorite!) Antonin Scalia:

“the doctrine of standing is more than an exercise in the conceivable. … Nobody thinks your client is really, you know, abstaining from tequila down in Mexico because he is on supervised release in the United States.” [PDF]

Exsqueeze me? Tequila? Come again?

I can’t say I was shocked to hear such dismissive rhetoric from Scalia; he’s not known for politeness, after all. But I was surprised by the near-absence of reaction in the media today. When did this kind of offensive language by officials in our judiciary become acceptable, and what does that mean for justice in the United States?

Dahlia Lithwick, in Slate, approaches this discussion.

The more interesting question is about Scalia’s deliberate carelessness with language, his sense that he is somehow above the sorts of linguistic delicacy the rest of us expect in our dealings with others. Indeed, he seems to think it’s his obligation to be ever more reckless with his words, perhaps because he’s about the only guy left who faces no consequences for his rhetorical body-slams.

When Virginia Senator George Allen referred to a young man as “macaca,” and said “welcome to America,” the media called him on his hateful speech. It appears that Scalia escapes the same sort of attention, perhaps because there is no campaign being run against him, and therefore no one who will benefit directly and immediately from his censure.

The backlash against “politically correct” language has created an atmosphere in which some people delight in saying things to offend. When those people are comedians, it may be funny or not, but in the end it doesn’t matter too much. When judges engage in such blithe disregard for the feelings of others, however, there’s good cause for concern. How are we to be confident that this disregard doesn’t extend to their policy-making? In Scalia’s case, I certainly don’t see a ready distinction between his words and his actions.

*Update: CNN is deliberately undermining me, dammit.