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

[Curious George]

The New York Post's Page Six is reporting that Justice Scalia's wife, Maureen Scalia, was in the audience. Did anyone see her reaction to the question?

[M]

The shocked, no, *shocked* response is the path of least resistance. Does it not matter that Scalia openly displays contempt for those who adopt different legal postions, including sitting Supreme Court Justices? The NYU student used no profanity and, as far as I can tell, not even a threatening tone. It's more likely than not that, if Scalia had been on the other side of Lawrence, and Lawrence had been decided the same way, that Scalia would have posed that exact question to the Justices in the majority.

Are you not offended when a Supreme Court Justice defends his controversial involvement in deciding a Presidential election with "get over it?"

Are you not concerned when a Supreme Court Justice derides most of his colleagues as mere political hacks who decide the law purely on the basis of personal feelings?

No, you're bothered by a student making a point in the only way this Justice can apparently understand.

[A hetersexual in a committed relationship who would not enjoy being asked this question either]

If a particular government can regulate private sexual behavior, then anyone subject to that government is subject to the inquiry, at least to the government inquirer, if not the public. The questioner was making the rather blunt point that noone likes being subject to that particular inquiry. The question was extremely tasteless, but that's the point isn't it?

Of course government can regulate some forms of private sexual behavior - prostitution, rape, incest, bigamy, etc.. When a person is asked in public if they engage in any of these behaviors, they would most likely be indignant because, of course, as a respectable person, they would never engage in such activity. Just as a question as to whether a person engages in orgies would make a "respectably moral" person indignant. But even though a respectable committed couple may in fact enjoy sodomy, the question is enough to make anyone indignant. And that is exactly the questioner's point.

If Justice Scalia's (and whatever you think of the man, he has certainly earned that honorific) indignation was to the public questioning rather than a particular government, that would certainly be a valid point for him to make. Justice Scalia's appearance was not at a dinner party, but he made that appearance as a very powerful representative of government who has the power (along with 4 others) to allow governments to subject committed couples to this inquiry. The indignation that Justice Scalia is probably less than that felt by those subjected to this inquiry by the government before the Court overruled Bowers.

I imagine that Justice Scalia felt the same indignation that Strom Thurmond felt when asked if he had ever engaged in miscegenation himself.

[Carlos B]

Ricky, for those not "in the know," is our Fish-from-Ally-McBeal-looking Dean, Richard Revesz.

Revesz Delenda Est.

[Michael]

I think that the point that is being overlooked here is that regardless of whether Scalia is a homophobe or legitimately believes that unenumerated rights should be left to the legislature, and regardless of whether he uses disrespectful and bigoted innuendo in his opinions (a perfectly legitimate and valid viewpoint on Eric's part), at the end of the day he is a justice of the Supreme Court and there should be at least be a modicum of respect for the institution, if not the man. In my opinion, it is simply an inappropriate way to behave to ask the question, and losing respect for the institution leads to both someone asking Scalia whether he sodomizes his wife and to people sending death threats to Blackmun after Roe. Both are way out of line and not part of legitimate, civilized discourse. As for Eric contending that Eric B. (the Scalia questioner) was trying to make the same point as he did in his post but was cut off by Ricky turning off the mike, all I can say to that is that I was in the overflow room and heard Eric B. following up with that exact point into the mike. I think anyone who was in the overflow room and watching the session being simulcast - and hence unable to see what Ricky was doing after the question - will attest to the fact that the mike was not turned off for a good 30 or 45 seconds, and if Ricky was indeed forcefully stating Eric B's action to be inappropriate, it was not audible to the people watching across the hall.

[Eric Prindle]

I was in the audience and, for one, am glad Eric asked the question he did. Scalia was behaving in a disrespectful fashion, being unresponsive to questions and filling up half of the so-called "Q&A" with his stump speech about originalism. His opinions on the court use disrespectful and bigoted innuendo. Just because he does all this with a certain level of elite decorum doesn't mean he's not doing it. So I see nothing wrong with Eric cutting through the bullshit and getting to the point.

Which was: Sexual privacy is very important to people. It is something most of us won't give up willingly. If we as a society respect individual rights, then Scalia didn't have to answer the question, and likewise, adults engaging the same acts in their homes don't have to answer to the police.

No one really thought Scalia was going to answer the question or even wanted to know the answer. After they turned off Eric's mic, what he was "shouting" was an attempt to make the point I just made. Unfortunately, the dean had him cut off.

[Carlos B]

Thanks for calling attention to this, A3G. What an indignity my school has suffered.

It only got worse after the Q&A. During the dedication ceremony, the protestors were screaming slurs and banging on the windows. The speeches could barely be heard. Nadine Strossen of the ACLU, present to honor Scalia, declared their actions to be an abuse of the First Amendment. The irony (and sadness) of that statement is indescribable.

[Jon]

Speaking as an NYU Law student with liberal leanings, I will say that pretty much all of us are mortified by the question asked. Love him or hate him, the man should not be asked about whether he has a propensity to sodomize.

I guess this means I'm not getting that Supreme Court clerkship.

[Chris]

Mike, you are correct. I base my assumption on what I've seen elsewhere. The reader's statement is inaccurate and, for the most part, the criticisms I've seen that have focused on the school, rather than the student, have come from the more conservative schools. i.e. claims that the student's behavior is simply indicative of a "liberal" problem.

For all I know, the reader was Ralph Nader's campaign manager and simply had a bone to pick with the dean. Thanks for keeping me intellectually honest.

[Mike]

Chris - why does the characterization of the dean allegedly not taking any action "strongly suggestive of a conservative bias"? I'm not sure I see the logical connection at all. The UTR reader did not make any assertions about the dean's motives or political leanings, and doesn't seem to have indicated a political bias one way or the other (i.e. no comments either in favor of or against Scalia).

[Chris]

This description of the event is not quiet accurate. Specifically:

"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."

The Dean was on stage about 100 feet away. At first, he groaned along with the rest of the audience. When the questioner continued to pepper Justice Scalia with questions, the Dean forcefully stated the student's actions were completely inappropriate. He also motioned to a faculty member closer to the questioner to go and turn the microphone off.

Therefore, to say "the most disgraceful part of the whole incident" was the dean's actions is: 1. inaccurate, 2. disingenuous, 3. strongly suggestive of a conservative bias on the part of the UTR reader. I hope your readers don't allow the actions of one immature student to color their opinions of NYU.

[Anderson]

Is "butt-clenchingly" a specific response to the mention of sodomy?