So When is a Minority a Minority

Antonin ScaliaSo when is a minority a minority?

“It’s not up to the courts to invent new minorities that get special protections,” Supreme Court Justice Antonin Scalia recently told the Federalist Society. He was defending his decisions on DOMA and California Prop 8, implying gay people are a “minority” under the law. Scalia often makes these anti-“minority” decsions. Replace the word gay with almost any group smaller than the white male, and sometimes when it suits him, female population and he is exhaustingly predictable.

Scalia often lives in a topsy-turvy world where his own words oddly prove him wrong and this is one of those times.

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SCOTUS v. Cameras: Techno-Dolts or Inocent Sausage Makers


MICROSOFT OUTLOOK v. SCOTUS - Are the Supremes just an band of ancient techno-dolts or do they ask seemingly stupid questions for a reason? You can't read the scorecard without the televised instant replay.

Many people wonder why the Supreme Court refuses to allow cameras in court. A recent exchange between the justices and lawyers hearing a sexting case might provide some clues – the back and forth hypothetical nature of questioning sometimes sounds, well, just plain loopy.

In the sexting case, the legal question was whether police officers could have a reasonable expectation of privacy when using their department-supplied pagers to text sexy messages to one another. Some of the justices asked questions that, on the surface, sounded as though they had graduated at the bottom of the class at the Ted Stevens University of Information Technology.

At one point, Chief Justice John Roberts asked about the difference between, “email and a pager”. Justices also asked what happened when two texts arrive at the same time. “Does it say: ‘Your call is important to us, and we will get back to you?” Justice Stevens asked. “Could Quon [one of the defendants] print these spicy little conversations and send them to his buddies?” Scalia asked.

One explanation for these somewhat surreal exchanges might be that even the middle aged Roberts understands little more about information technology than his more elderly peers. The other might be that Roberts and the other justices asked the questions not because they were oblivious, but because there was some rhetorical reason while arguing the case. Without the context a camera could provide, we lay people don’t know and, in fact, question what the hell is wrong with someone asking about the difference between email and a pager in the 21st Century.

The assumption in some media outlets was the Roberts and the rest of the SCOTUS gang were just plain stupid and I must admit I’m hard pressed to find a reason for Roberts’ question, reasonable or otherwise.

Most of the stories today didn’t give SCOTUS the benefit of the doubt. It makes for a more compelling story than assuming they really do know that they’re doing. I’m sure the justices were embarrassed by the tenor of the stories. No one likes to look like an idiot in front of the world and it might legitimately be a lack of understanding on the reporters’ part.

Perhaps, this is a subject the justices should reconsider in their own court. Is it worse to reveal the legal sausage making and potential embarrassment of open, televised court where a video feed might clarify things? Or, is it better to let people make their own conclusions about subjects that many of them are clueless about, even with the help of video technology?

If I was a justice, I’m afraid it would be a split decision.

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