Judicial SIGHT-ation: Justice Scalia at NYU!

What is it with New York University Law School and Supreme Court justices these days? Just last week, on Monday, April 4, Justice Anthony M. Kennedy graced NYU Law with his presence. And last night, on Tuesday, April 12, Justice Antonin Scalia visited NYU. Justice Scalia was on campus to be honored by the NYU Annual Survey of American Law, which is dedicating its 2005 issue to him.

As reported in the Washington Square News, during a question-and-answer period before the dedication ceremony, the Rock Star of One First Street was asked a rather inappropriate question. A UTR reader offers this eyewitness (or earwitness?) account:

as you already know, scalia was at nyu today. in case you haven't yet heard, someone actually had the gall to ask him during a packed question and answer session whether or not he sodomizes his wife!! it was the singularly most shocking event i have witnessed. the question was asked in connection with his contention in lawrence v. texas that the government can regulate private sexual behavior.

After A3G requested details concerning how Justice Scalia and the crowd reacted to the "do you sodomize your wife" inquiry, her loyal correspondent offered further information:

There was this loud collective gasp from the audience, and for about 5 seconds Scalia stared at the questioner - I wasn't sure whether he was in shock like the rest of us, or whether he was going to come down from the podium and throttle the guy. He finally got a hold of himself and said he wasn't going to answer that and tried to move on to the next question, but for about 30 seconds the guy kept on badgering him and Scalia kept on trying to move to the next question, which he finally did.

To Scalia's great credit, he took another half hour of questions, and was cut off by the moderator when the session was scheduled to end, despite his attempting to take even more questions from people. The most disgraceful part about the whole incident is that the dean of the law school didn't cut the guy off, or admonish him, or apologize to Scalia.

After the whole thing was over, every single conversation taking place was focused on the lack of respect and how unseemly the whole thing was.

This is all really quite disgraceful. The questioner would perhaps defend his question as a form of political protest (or maybe as a work of performance art). But the inquiry strikes A3G as absolutely horrific, butt-clenchingly mortifying, and ample proof that there is such a thing as "too much information," even when it comes to justices of the Supreme Court.

Now, A3G knows what you're thinking. As the proprietress of a federal judicial gossip blog, A3G likes to get "under the robes" of Article III judges as much as -- if not more than -- the next gal. So some of you might be thinking, "A3G, where do you get off criticizing someone for going too far into a federal judge's private life? Isn't an unseemly interest in the bedroom practices of the justices just a natural extension of the UTR 'philosophy'?"

Well, even Article III Groupie has some modicum of shame. A line must be drawn somewhere -- especially when you're interacting with a Supreme Court justice in the flesh. Although UTR focuses on federal judges as people, it does so with some sense of boundaries and tact (or so A3G likes to think). Indeed, A3G regularly receives rumors and information for her blog that she declines to publish, based on the exercise of her discretion and common sense (and her desire not to be sued).

A3G has little interest in getting mired in an extended debate over "how far is too far" when it comes to the personal lives of federal judges. And she refuses to accept "blame" for somehow encouraging this type of conduct, through her running of a blog about the federal judiciary's more personal side. People who insist on being rude to federal judges in public will do so regardless of whether UTR exists. 

Suffice it to say: Just because the boundaries set by good taste are somewhat subjective does not mean they're non-existent. To paraphrase Justice Potter Stewart on pornography, when it comes to tastelessness, A3G "knows it when she sees it." And this is it.

Comments

[LD]

The question might have been better put to those white male justices who authored the majority opinion in Bowers v. Hardwick. (Michael Bowers himself, incidentally, was guilty of violating GA's prohibition on adultery.) In any case, it was entirely appropriate, commendable and long overdue for someone to shore up the hypocrisy of Justice Scalia, who is not infrequently self-righteously wrong. The discussion in this comment section neglects First Amendment arguments. Doesn't anyone remember the "safety-valve" theory of the First Amendment? What of the famous call for more speech, not enforced silence to counteract false speech? How about the conduct / speech distinction which would place death threats in the former category and the NYU inquisition squarely in the latter, thus breaking apart the illogical analogy to the Justice Blackmun death threats? The question might even be tolerated from the perspective of Meiklejohn's town hall framework with its listener-oriented focus in Political Freedom.

What disguts me is not the dean's (lack of) response, but Nadine Strossen's objection to the protesters. The ACLU represents the right of the KKK to march. It comes down on the side of the "Fuck the Draft" jacket-wearer and the flag-burner. The Supreme Court itself in New York Times v. Sullivan invokes discouse in a democractic society as "robust, wide-open debate."

Perhaps A3G, the author of incendiary remarks about LBGT people in his Harvard Crimson days, relates a little too well to Scalia. A3G, please, what the world needs now is not q and a about the dainty teacup patterns of right wing judicial divas. Everyone knows Scalia has a stick up his ass, and kudos to the NYU student for having the balls to point it out.

[v]

I am sorry, I don't find the offense in the question. If the gentleman who asked the question of an individual who advocated the same views as Justice Scalia, and who was not a judge , I would think that the shock that people profess here would be muted. There is a double standard here which enables someone like Scalia to hide behind his judicial authority while advocating bigotry against gays. If Scalia can write dissents and advocate banning gays and the ilk, there is equally nothing offensive in someone asking him about his private habits in the same framework that he uses to characterise gays. The fact is that the questioner used precisely the same kind of language that Mr Scalia uses to describe gays. If people find this acceptable and not insulting, while at the same time they find the same language coming from others insulting, there is clearly a double standard.

[Dan]

Justice Scalia has made it perfectly clear that he - if he were a legislator - would support bills banning sodomy - homosexual, heterosexual, cunnilingus, oral sex, analingus, and however else that term is defined. He has made it perfectly clear that he - if he were President - would sign such a bill into law. How does one know this? Because of his pious paean to the death of "morals" legislation in Lawrence v. Texas, a paean in which Scalia completed the trifecta, arguing that the striking down of the Texas law prohibiting homosexual sodomy represented "the end of morals legislation as we know it." (Love that Scalia doomsday rhetoric; just two days ago, I wasn't able to buy alcohol because my state still has Sunday blue laws).

By the way, Scalia's opinion in Lawrence v. Texas was notable for several things - chiefly the paucity of its analysis. The opinion accused the majority of "cooing" over the homosexual agenda (yeah, Justice Kennedy - I can just picture him getting all hot and bothered by the gay rights movement), and then actually went on to say, "Many of us are severely uncomfortable with gay people as our soccer coaches, our chaperones, etc."

Thanks, Nino, for explaining to us what you believe to be constitutionally acceptable animus, but your opinion added little to the dialogue about whether there is, or should be, some kind of fundamental right of privacy in this country.

Now, to the question at hand: was the student's question of "Do you sodomize your wife" proper? You betcha. Supreme Court justices are pampered dandies who not only have lifetime tenure but write their own ethics rules, do their work in almost complete secrecy, have pretty much unlimited discretion when it comes to hiring and firing employees, and are unaccountable to no one in more ways than even Tom DeLay could imagine. Scalia himself stood by in Hattiesburg, VA as federal marhsals seized a tape recorder of someone who was taping a speech of his. The seizure was a federal crime. The topic of Scalia's speech? "The Constitution, and How People Don't Respect It How They Used To." Yuk Yuk.

If a Supreme Court justice is going to make his morals our misery, he certainly has the right to be ASKED, mind you - to be ASKED - if he at least has the tiniest ability to practice what he preaches. He ducked the question. So, no one knows whether he sodomized his wife. But to say the question is "unworthy of a response..."... If that is true, then his discourse as to what gay people in what roles make what straight people feel uncomfortable was certainly unworthy of a response too. The majority opinion in Lawrence v. Texas knew this, and didn't even mention this comment.

[UM Law student]

I don't know if the question was appropriate or not, but some piece of me is happy that Scalia was confronted. When Scalia visited UM Law, everyone here was nice and polite. The Dean did everything in his power to stop protests; no one protested. Scalia is taking us back to the dark ages with his "living constitution" rhetoric. There is no way that GLBT issues do not pass muster under strict scrutiny. Even is there is no precedent, the parameters for evaluating GLBT people all fit SC criteria according to parallel precedent aka. no living constitution required. Therefore, it makes no sense to defer to the political process like Scalia suggests we should. I am ashamed that UM did not do more to push Scalia and am sad that my school does not embrace its GLBT community and human progress generally like NYU. GO NYU!!!!!!!

[homer]

Why be nice to someone who so obviously thinks homosexuals are second class citizens? I could care less if he and other people were shocked. I'm sure the suffragettes and anti-slavery folks shocked a few people in their times.

What do you mean Scalia was unresponsive? Eric Brendt's question was the 2nd one of the Question and Answer session. He directly answered both questions. Don't act as though just because you don't get the answer you want to hear it is being unresponsive.

[Daniel McGuinness-Ross]

Viewing the comment as merely a protest is ignorant and childish. This comment was thoughtful and obviously its meaning went over your head. Take a moment to think about it.

"OMG too much info!" Hmmm maybe the person who is listed in police beat for a sodomy violation is thinking the same thing. Luckily Scalia's homophobia could be curbed by more reasonable minds.

The question to Scalia is entirely appropriate because Scalia has advocated the removal of privacy protection from sodomy inquires. Or does that just apply to everyone else and not him? Or is it that sodomy is so hienous that the question implies a horrible accusation? (Keep in mind that the definition of sodomy includes oral sex.) If you answered yes to either of those questions you are either a fool or a biggot.

"Speak truth to power."

If power has a problem with it, power can act accordingly.

[Paul]

It seems to me that the "equivalence" point (whereby Scalia's supposed inquiry into the private lives of homosexuals is treated as being the same as a single homosexual's inquiry into Scalia's private life) ignores at least one key point, possibly two.

First, the government may not ask homosexuals or heterosexuals about their bedroom behaviors, under Bowers, Lawrence, or any version of the law in between the two, and expect or demand an answer because the Fifth Amendment protects the citizen from being forced to speak. While under Bowers, bedroom behavior could be punished, it posed no special exception to the prohibition against self-incrimination. Relatedly, the government could not enter the questioner's bedroom for Fourth Amendment reasons. Nor could the prosecutor call the Defendant as a witness and ask the questions to embarrass him. I think these points are far from trivial. Therefore, any attempts to propose, as Carlos B does, among others, that the government was empowered to conduct a searching inquiry into private behavior are inaccurate.

The second, broader point is about propriety in the forum. Justice Scalia was undoubtedly visiting NYU cloaked in the metaphorical robes of his office. Regardless, he came not as a political figure, but rather as a legal one. One's decision on whether the question was appropriate necessarily depends on the forum. Were Scalia attending a political rally, perhaps, or a partisan event, or even a forum with political ends, a question admittedly designed to make a political point would be appropriate. However, here the question was at a legal forum. One can reasonably question whether this was indeed the place to go into a judge's bedroom.

All of this, of course, is written on the backdrop of a judge who has used a public forum to say things that have offended and hurt others. Those people might reasonably be excused for taking vengeance when they, too, were given a voice. However, in my opinion, the arguments being deployed in favor of the behavior exhibited are not persuasive. There is a fine line between asking a question designed to provoke and one designed to offend. I believe this to have been one of the latter.

[milo_went]

i'm glad i'm not on the supreme court.

wonkette has posted the student's email response justifying the question. link

The student had the right to ask the question, unseemly as it was, i suppose. The government, scalia should agree, has the legal right to force him to answer that question if it passed legislation to that effect (subject to the 5th amendment). Since sodomy is illegal in most states, isn't it at all relevant to his fitness to serve? Of course this is all bullcrap because most people couldn't give a crap about what Scalia does to give his wife the big O. Scalia would say stupid laws can be constitutional. He is right.

Asking the length of his erection would clearly be unconstitional, however.

[karl]

Scalia begged the question in his dissent in Lawrence. The question is fair and amounts to no more than "Mr. Scalia are you a hypocrite?" I know I thought it, I know others thought it, and I know that his vote means that ONE's SEX IS A LEGITIMATE ISSUE FOR PUBLIC INQUIRY. Perhaps your distaste is because you aren't legislated against or can buy your freedom from the rules the rest of us "peons" must follow.

- k

[Gary]

Of course you find the 'do you sodomize your wife?' question offensive. Now think of how it feels as a homosexual to have those very questions asked of you. Have you ever committed sodomy? Have you ever had a blow job?

Bigotry and demands of civil obedience from the oppressors will not be tolerated by us anymore. Certainly not from a Supreme Court Justice who has sodomized the Constitution.

To the Mr. Manners who equates embarrassing Scalia with sending DEATH THREATS to Blackmun: is threatening someone's life more or less indelicate than picking your teeth with your fork?

[Eric Prindle]

Thomas: While our protest was not "very tame" (as I'm very happy to say), no one was shouting obscenities over a bullhorn or banging on the walls. One person brought a bullhorn and briefly tested it in anticipation of its use later in the evening on private property, which ended up not happening. But the chanting people heard was our plain unamplified voices as required by law. And yes, one non-student who was present rolled up a piece of paper and tapped on a window for a couple seconds before being told to stop and immediately complying. No reason to make us sound like a violent mob.

As to another comment: Yes, all these responses of shock are making me start to wonder if people realize that Queen Victoria no longer reigns. Geez.

[Article Too]

Why not use this opportunity to practice some estates and future interest problems?

1) A3G owns Kozinskacre in fee simple absolute. She conveys Kozinskacre "to Antonin Scalia and his heirs so long as he never sodomizes his wife, but if he sodomizes his wife, then to Anthony Kennedy and his heirs."

2) A3G owns Hedgehog Estate in fee simple absolute. She conveys Hedgehog Estate "to Kimba Wood for life, then to Eugene Volokh and his heirs, then to the heirs of Kimba Wood."

3) A3G owns Easterbrook Manor in fee simple absolute. She conveys Easterbrook Manor "to the hot Kim Wardlaw and the heirs of her body, then to John G. Roberts, Jr and his heirs if he is appointed to the Supreme Court, but if he is not, then to Stephen Reinhardt for life."

What estates and future interests? Come on, you're studious/dorky enough to answer these!

Whiny little maggots.

[Thomas]

No, it was a pathetic question and a poor attempt to point out hypocrisy where none exists. It merited no response. I'm glad Scalia didn't give it one.

[Carlos B]

Rectum? Damn near killed 'im.

You know, I'm getting tired of people putting on a show of being shocked over this. It was a perfectly legitimate question, and not outside the bounds of taste at all- given Scalia's previous statements and his positions on issues relating to sexuality and the law, he should have been willing, even eager, to answer that question.

So stop it with the histrionics. This was not only a pointed, and appropriate, commentary, it was a damn good question.

[Thomas]

Additional note: My comment on the level of the outside protests was directed at a report I read on a different site where the person claimed the protests were very tame.

[Thomas]

Before I'm attacked, let me make it clear that I don't worship at the altar of Scalia. However...

The question was entirely inappropriate. I blame any support for that kind of question on immaturity. Unfortunately, some people never grow up.

It's hard to believe that people cannot see the difference between Scalia's stinging dissents and what happened here. The two are separated by miles, not inches. The question posed, in any form, bears no resemblance to any comment in any Scalia dissent, concurrence, or opinion that I have ever read. (And I've read them all.)

Also, I take issue with the person who claimed that the protests were barely audible. From what I understand, the protests were loud enough to be a significant annoyance. (I seriously doubt the head of the ACLU would have said something if the protests were very quiet.) Either way, it's an extremely weak form of protest to shout obscenities over a bullhorn and bang on walls. It may make you feel better, and in many cases you have the right to do it, but it certainly doesn't help your cause. The average person is turned off by such displays. Unfortunately, people on both the left and right have yet to learn this. (Think PETA and anti-abortionists)

[gram]

while i agree that scalia's dissent in lawrence v. texas, like some of his other writing, "uses disrespectful and bigoted innuendo," i remain convicned that the questioner's actions during the q. and a. were out of bounds. i'm not so much offended by the person's crude question as i am by its silly motivation...

did the questioner really believe that his pointing out to scalia that enjoying a little oral (or more) now and then with one's hetero partner was comparable to gay partners getting it on would cause the justice to publicly disavow his lawrence dissent? did he think the question would change scalia's mind and the echo maybe inform scalia's future opinions? perhaps the questioner thought scalia had never considered the hypocrisy of giving his wife a little bottom poke but denying gay couples the same pleasure.

naaah... i'm more than certain scalia knows that his views on sexuality and morality are not shared by all; in fact, i suspect that's precisely why he slithered to d.c. and shook the hands he needed to end up where he is. the questioner was either naive or simply a foolish troublemaker whose act of "resistance" was, in my view, ill-conceived political theater... it was beneath the dignity of such a forum not because the questioner asked a supreme court justice if he sodomized his wife (who was in the adience and must have been mortified), but because the question had no legitimate potential to advance the discussion... it was not designed to elicit a thoughtful response but to shock and offend.

[Anderson]

Don't forget, folks, that sodomy occurs above the waist as well. Poor Mrs. Scalia ...

[Article Too]

Folks, I think A3G's problem with the question was not so much its content but the inartful way it was worded. The questioner should have framed his query thus:

"Justice Scalia, what legitimate interest does the state have in your penis, vis a vis its penetrating your wife's ass?"

Had the question been so worded, Scalia would doubtlessly have replied:

"My kind sir, the legitimate interest the state has is promoting morality, an interest that has been part of the state's police powers since the time of the framing. Anal sex between lawfully married, consenting adults violates numerous tenants of that essential document of our society, the Christian bible. As you know, many members of the state legislatures are a part of the Christian religion, as am I, and wish to advance its views. That said, it is fully within the power of the legislature to strike these laws down if viewed as archaic, and indeed, this is the proper course to take over activist constitutional pronouncements. I myself believe that these laws do not violate Christian tenets. In fact, I also advocate the use of orgies to ease tensions. However, since anal sex between a man and his wife is illegal, I, though truly desirous of it, refrain. Furthermore, if we deny the state the power to regulate morality, where is the line drawn? Does the state then not have a legitimate interest in forbidding incest, bestiality, and polygamy? You, sir, forget that judges must not legislate. I urge you, rather, to petition your state legislators, and convince them of the injustice of these laws."

"Thank you for having me, NYU. I'd like to close with the following quotation on anal fisting from the Bible. 'My beloved put his hand by the hole of the door and my bowels were moved for him.' Song of Songs, 5:4."

Yeah, I think it would have gone down like that. Come on guys, don't you know the importance of form over substance? And his heirs! And his heirs!

In an era when the President of the United States is impeached for passively receiving felatio, how can anyone say asking a Chief Justice about his bedroom habits is out of bounds?