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Justice Scalia on Gestures:

UPI originally reported that "U.S. Supreme Court Justice Antonin Scalia startled reporters in Boston just minutes after attending a mass, by flipping a middle finger to his critics." It then revised the story to say that "U.S. Supreme Court Justice Antonin Scalia startled reporters in Boston just minutes after attending a mass, by making a hand gesture some consider obscene." Other media outlets may have done the same; UPI is just the first that I had found. I had originally heard the "flipping a middle finger" story myself.

Here's Justice Scalia's reply, which I think is a fun read as well as an important correction (thanks to How Appealing for the pointer):

To the Editor:

It has come to my attention that your newspaper published a story on Monday stating that I made an obscene gesture — inside Holy Cross Cathedral, no less. The story is false, and I ask that you publish this letter in full to set the record straight.

Your reporter, an up-and-coming "gotcha" star named Laurel J. Sweet, asked me (o-so-sweetly) what I said to those people who objected to my taking part in such public religious ceremonies as the Red Mass I had just attended. I responded, jocularly, with a gesture that consisted of fanning the fingers of my right hand under my chin. Seeing that she did not understand, I said "That's Sicilian," and explained its meaning — which was that I could not care less.

That this is in fact the import of the gesture was nicely explained and exemplified in a book that was very popular some years ago, Luigi Barzini's The Italians:

"The extended fingers of one hand moving slowly back and forth under the raised chin means: 'I couldn't care less. It's no business of mine. Count me out.' This is the gesture made in 1860 by the grandfather of Signor O.O. of Messina as an answer to Garibaldi. The general, who had conquered Sicily with his volunteers and was moving on to the mainland, had seen him, a robust youth at the time, dozing on a little stone wall, in the shadow of a carob tree, along a country lane. He reined in his horse and asked him: 'Young man, will you not join us in our fight to free our brothers in Southern Italy from the bloody tyranny of the Bourbon kings? How can you sleep when your country needs you? Awake and to arms!' The young man silently made the gesture. Garibaldi spurred his horse on." (Page 63.)

How could your reporter leap to the conclusion (contrary to my explanation) that the gesture was obscene? Alas, the explanation is evident in the following line from her article: "'That's Sicilian,' the Italian jurist said, interpreting for the 'Sopranos' challenged." From watching too many episodes of the Sopranos, your staff seems to have acquired the belief that any Sicilian gesture is obscene — especially when made by an "Italian jurist." (I am, by the way, an American jurist.)

Sincerely,

Antonin Scalia

Cornellian (mail):
Does Scalia have any mode of writing other than sarcastic?
3.29.2006 2:10pm
Cornellian (mail):
Does Scalia have any mode of writing other than sarcastic?
3.29.2006 2:10pm
M.E.Butler (mail):
Since the only line in the letter that might be considered sarcastic was "Your reporter, an up-and-coming "gotcha" star named Laurel J. Sweet, asked me (o-so-sweetly) . . ." and the rest of the letter is not, you should have been able to answer that question yourself.
3.29.2006 2:20pm
boonelsj (mail):
If it's not a big deal (and I don't think it is), then why did he ask them not to publish the picture? I'm just curious.
3.29.2006 2:27pm
frankcross (mail):
Well, I found that line a little disappointing. That really is childish and I expect justices to be above that sort of thing.
3.29.2006 2:30pm
jeremyguest (mail):
Good thing he's not Scottish, or he would have just delivered a swift, drunken headbutt.
3.29.2006 2:31pm
Randy R. (mail):
The much much bigger issue here is whether Scalia should recuse himself from the case before him on military detainees. He clearly has his mind made up, and it's partly because of a personal bias (his son is in the military). Scalia's childish gesture was a reaction to a question about just this topic.

The man is afront to judicial ethics, and he doesn't care.
3.29.2006 2:43pm
Eugene Volokh (www):
Randy R.: "A Boston Herald reporter asked the 70-year-old conservative Roman Catholic if he faces much questioning over impartiality when it comes to issues separating church and state." (Emphasis added.)
3.29.2006 2:47pm
Siyadow (mail):
Are you kidding? First, that fails to consider the past established precedent of when Justices should recuse themselves. If you are to suggest that a Justice should recuse on the basis of having one's mind made up, then Justice Thomas (not to mention the majority of Justices in nearly all cases) should recuse himself with every case at bar. Second, Scalia has recused himself on many occasions, which have followed the established mold. As to his personal bias (son being in the military), does that mean that any Judge (federal or state) should recuse themselves in any military-related case simply because of a relative who is in the services. Our legal system would prove unworkable. Finally, if you want a prime example of a Justice clearly refusing to recuse himself at the proper time, you need not look further than Marbury v. Madison (which has become the basis for our current system of Judicial Review). Justice Marshall handed down an opinion 'solving' the very problem he created as Secretary of State.

While Scalia's gesture (and perhaps much of his writing) could be properly labeled as "childish," this was not a reaction in the least to the topic of military detainees and should not be proffered as such for the sole purpose of incorporating your (incorrectly formed) views of judicial recusal. Additionally, it's difficult to put forth the view that Scalia is an "afront to judicial ethics" when he is the only member of the pre-Roberts court who has at least attempted to follow an established line of interpretive theory.
3.29.2006 2:58pm
SP:
The reporter seemed to be suggesting that a sitting justice isn't allowed to end Mass. Heaven forbid, what if Scalia believes in God? He'll certainly have to recuse himself now!
3.29.2006 3:00pm
DavidBernstein (mail):
Isn't that the exact same gesture that adjunct professor at DePaul who was fired for arguing with pro-Palestinian students made? He was also accused of making an obscene gesture, and he also tried to explain that it wasn't obscene.
3.29.2006 3:14pm
cfw (mail):
Siyadow:

"If you are to suggest that a Justice should recuse on the basis of having one's mind made up, then Justice Thomas (not to mention the majority of Justices in nearly all cases) should recuse himself with every case at bar."

What about the idea of appearance of impartiality? Justice Thomas has not spouted off about how he will not do this or cannot accept that, with reference to arguments coming before the Court.

If some juror went on like Justice Scalia, do you think he or she would be kept on a jury? Would a lower court judge get challenged in a heartbeat for doing what Justice Scalia did?

I would encourge the Congress to come up with a withdrawal of jurisdiction statute tied to reasonable grounds for recusal. The idea that it is just up to Justice Scalia and he gets to decide recusal issues with no sanctions for wrong judgment makes no sense. Justice Scalia is a serial offender, in my view: Chaney case, Pledge Case (where he did recuse), now this case.

"As to his personal bias (son being in the military), does that mean that any Judge (federal or state) should recuse themselves in any military-related case simply because of a relative who is in the services."

Yes, if the judge says I am not going to attend argument with an open mind and mentions his son in the military in explaining why, then he is stepping over the line. Justice S is supposed to set an example for other judges. He is not paid to serve as a politico or celebrity, eh?

"Finally, if you want a prime example of a Justice clearly refusing to recuse himself at the proper time, you need not look further than Marbury v. Madison (which has become the basis for our current system of Judicial Review). Justice Marshall handed down an opinion 'solving' the very problem he created as Secretary of State."

As I recall, the appointments were made by the President. Marshall acted administratively, then judicially. Still, if he was conflicted, he should have recused himself.

"While Scalia's gesture (and perhaps much of his writing) could be properly labeled as "childish," this was not a reaction in the least to the topic of military detainees and should not be proffered as such for the sole purpose of incorporating your (incorrectly formed) views of judicial recusal."

I agree, I see no connection. I would like to see the photo though, just not because it might shed light on Scalia's unjustified participation in the Hamdan case.

"Additionally, it's difficult to put forth the view that Scalia is an "afront to judicial ethics" when he is the only member of the pre-Roberts court who has at least attempted to follow an established line of interpretive theory."

Again, separate issues. One can have a consistent theory and still act improperly in failing to recuse.
3.29.2006 3:41pm
Dominick:
Offensive gesture? It's hard to determine based on the AP story what the hand gesture was, but I would suppose that the 70-year old Italian-American jurist only makes one kind of dismissive, hand-beneath-the-chin gesture that can be described as "Sicilian." I made the gesture once as a young child in front of my Italian grandmother, which earned me a serious spanking. I've never done it again and have always since considered it offensive.
3.29.2006 4:03pm
keatssycamore (mail) (www):
A rude and dismissive gesture to avoid a question. I'm shocked. He's always been such a classy guy.

But it's not obscene!
3.29.2006 4:47pm
Brian G (mail) (www):
I'll take the word of Scalia over an AP reporter every single time.
3.29.2006 5:00pm
Brian G (mail) (www):
Oh, and if anyone wonders why Scalia bans the press from nearly everywhere he speaks, this should make it clear.
3.29.2006 5:00pm
crane (mail):
I'm curious as to why someone would try to use gestures specific to one nationality to communicate with people not of that nationality. It's not going to be effective if the people you're gesturing at don't know what it means.
3.29.2006 5:12pm
Robert Schwartz (mail):
If it had been ruth ginsberg, would you all be complaining. Sorry, stupid question.
3.29.2006 5:20pm
PabloF:
Jeremyguest, don't you mean "Scottish-American"?

When I was a kid on Long Island, my buddies of Italian descent would sometimes use the gesture in question. In the playground, it basically meant F#%@ off, and although it perhaps wasn't as harsh as giving someone the finger, it certainly isn't surprising to me that the reporter concluded that the gesture was obscene.
3.29.2006 10:04pm
Dutch (mail):
This is so newsworthy. "Justice Scalia may or may not have mildly insulted me! ME, of all people! Actually, I'm not sure if he did or not, because I'm not familiar with the gesture he used, but he did say the word "Sicilian" and we all know, you should never go up against a Sicilian when death is on the line."

Good thing these electrons are free (so to speak).
3.29.2006 10:28pm
Randy R. (mail):
Sorry, but I was taught that all judges were give the appearance of impartiality of all cases brought before them. Of course they may have an opinion on a topic beforehand, or a viewpoint, and I will concede that impartiality of all cases is nearly impossible. But giving the appearance of impartiality is not difficult to do.
i guess I was incorrect about what the question that was posed to Scalia after mass. I confused it with Scalia's comment made just a few days earlier whereby he stated that no combantants in Gitmo have the right to a trial, and that case is just being heard right now. He even said, "Give me a break," as though the very notion is absurd. Part of being a judge is treating all petitioners and their arguments with a degree of respect. In this case, he is not willing to do that.

An effront to judicial ethics? I stand by that one -- the man has clearly stated in many venues his complete contempt for all gay people, even though gay issues come up to the Supreme Court from time to time. if he had said what he said about blacks, latinos, Lutherans, or the handicapped, that he has said about gays, then he people would be clamoring for his impeachment as a judge. But he can slander an entire group of Americans and thinks it's no problem. He is hardly any sort of paragon of virtue, in my opinion.
3.30.2006 12:28am
therut:
I wonder if this reporter would have asked this same type question to an athiest Judge? I could have been worded something like ---------Since you are an athiest and never attend Red Mass or any religious service and make that publically known how do you feel when people wonder if that affects your rulings on isssues of "so called" separation of Church and State cases?
3.30.2006 2:10am
John Herbison (mail):
Questions regarding whether Justice Scalia should recuse himself seem to occur with alarming frequency. I have seen little discussion, however, about the propriety vel non of his participation in Bush v. Gore, a lawsuit in which the justice's son Eugene Scalia's law firm represented then-Governor Bush.

Justice Scalia has since reportedly said that the question was whether the 2000 presidential election would be decided by the U.S. Supreme Court or by the Supreme Court of Florida. Originalist jurisprudence would have deferred to a state court of last resort's interpretation of state law regarding selection of the state's electors. (A 4-4 split in the U.S. Supreme Court would have let the Florida decision stand.) Failing that, the tribunal whom the founders charged with resolving a disputed presidential election is the House of Representatives.

In that instance, both ethics and originalism were subordinated to ward heeling.
3.30.2006 3:08pm
BobN (mail):
>>I wonder if this reporter would have asked this same type question to an athiest Judge?<<

Well, if that hypothetical judge inserted the moral teachings of the Catholic Church into as many decisions as Scalia does, she might have.
3.30.2006 4:16pm