What do Joseph Goebbels, Paul Krugman and Antonin Scalia have in common?

Joan tells me I could be a Catholic. She might be right.

Driving back to Omaha yesterday to resume my trial after successful visits with my doctors in Lincoln,* I forced myself to listen to Rush Limbaugh. I feel deep guilt and horrendous shame for all the sins that I have committed. Listening to the moronic Rush is a small part of my penance.

Anyway, I got to thinking about propagandists and ideologues. There is a commonality, I think, between expert propagandists and ardent ideologues. The best way to see what I mean is through real life examples.

In the 20th century, the most brilliant of all propagandists and ideologues was Joseph Goebbels. Goebbels was a brainiac (and maniac) who obtained a Doctor of Philosophy degree from the University of Heidelberg.

245px-Bundesarchiv_Bild_146-1968-101-20A,_Joseph_Goebbels“After the Nazi Seizure of Power in 1933, Goebbels’ Propaganda Ministry quickly gained and exerted controlling supervision over the news media, arts, and information in Germany. He was particularly adept at using the relatively new media of radio and film for propaganda purposes. Topics for party propaganda included antisemitism, attacks of the Christian churches, and (after the start of the Second World War) attempting to shape [public} morale.” en.wikipedia.org/wiki/Joseph_Goebbels. He was so committed to Hitler and National Socialism that, after poisoning his six children in Hitler’s bunker, he shot his wife in the head and then shot himself in Hitler’s above ground garden.

Then there is Paul Krugman. He is another brilliant fellow and winner of the Nobel Prize in economics. Krugman writes for the New York Times. He worships John Maynard Keynes, and writes devastating columns eviscerating any who dare disagree with his ideology of printing money to do good. He uses his NYT column like a rapier

225px-Paul_Krugman-press_conference_Dec_07th,_2008-8“Krugman was one of the most prominent advocates of the 2008–2009 Keynesian resurgence, so much so that economics commentator Noah Smith referred to it as the ‘Krugman insurgency.’ In June 2012, Krugman and Richard Layard launched A manifesto for economic sense, where they call for greater use of fiscal stimulus policy to reduce unemployment and foster growth. The manifesto received over four thousand signatures within two days of its launch, including from prominent economists,and has attracted both positive and critical responses.” en.wikipedia.org/wiki/Paul_Krugman

In this same vein, is Antonin Scalia, a Justice of the Supreme Court. There is no better writer than Scalia when it comes to argumentation. He is quick-witted. His IQ is obviously off the charts. He believes passionately in a legal ideology that features, among other things, a textualist approach to statutory interpretation. He seeks to propagate his views whenever he can.

220px-Antonin_Scalia,_SCOTUS_photo_portraitSpecifically, Scalia slavishly adheres to his “ordinary meaning” creed to the exclusion of any other reasonable method of construction and interpretation and without regard to whether the impact of the “ordinary meaning” canon produces harmful results. His bombastic dissent in King v. Burwell, so obviously intended to appeal to an audience much broader than lawyers and judges, is a perfect example of an expert propagandist and ideologue of the first rank. (“The Court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it means ‘Exchange established by the State or the Federal Government.’ That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so. . . . Today’s interpretation is not merely unnatural; it is unheard of. Who would ever have dreamt that ‘Exchange established by the State” means “Exchange established by the State or the Federal Government’?”)

The dissent is all the more remarkable when contrasted with Chief Justice Robert’s majority opinion. That opinion is moderate in tone, practical in approach and lawyer-like in reasoning. It does not seek to appeal to the fringe.

What do these musings mean? Two things, I think.

First, I could never be a Catholic, despite the love my life’s suggestion to the contrary. While I have the requisite heaping dollop of guilt and shame, I am too much the skeptic to accept the dogma.** That is also why the likes of Paul Joseph Goebbels, Paul Robin Krugman, and Antonin Gregory Scalia–expert propagandists and ardent ideologues each of them–frighten me. Because of the power of their propaganda, people have a tendency to believe their extremely passionate ideological claptrap.

RGK

* My creatinine levels have returned to normal thus indicating that I will not have continuing renal problems and, further, my shingles are past the eruption stage and without secondary infection.

** On the other hand, I loved the movie Dogma, especially the scene where Alanis Morissette appears as God.

41 responses

  1. I give you 66% on this post. Goebbels and Scalia both represented/represent their respective governments. Krugman represents himself, although he is a syndicated columnist. Krugman may influence public opinion, but he does not do so on behalf of any governmental body.
    Thus you only get a grade of 66% on the blog.

    Glad that your levels are coming back in line.

    Rush Limbaugh, oh my!

  2. Marsha,

    Fair enough, although Krugman really thinks he is the Chairman of the Fed.

    All the best.

    RGK

  3. “the exclusion of any other reasonable method of construction and interpretation and without regard to whether the impact of the “ordinary meaning” canon produces harmful results”

    Sure, you can say the chief was correct on this one. But where do you draw the line? That is the issue. “reasonable” is an obviously slippery slope. The legislature drafted (poorly and quickly-See Professor Bernstein’s essay: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/06/25/lets-recall-why-the-affordable-care-act-is-so-messed-up/) this mess and the legislature is where we have constitutionally asked that it usually be corrected. And sure, politics of the day prevented the legislature from fixing it (and undoubtedly still does), but what is the judicial branch supposed to do about this? Fixing it here was probably fine, but as a philosophy what do you believe the role of the judiciary to be? Scalia’s “ordinary meaning” approach isn’t what produces the harmful results. It is an approach that in this case would have “revealed” the harm that the legislative branch caused by inept or rushed legislation.

    And, while I would generally trust life tenured judges over politicians, I can’t vote the bums out. It seems to me that Scalia, while an “ideologue” for ordinary meaning and reading legislation as it is written, is more faithful to the role of judge. Nine wise old men to “review” legislation isn’t written into the constitution. OTOH, interpreting statutes to effect what the legislature would have meant if they were competent, isn’t the biggest sin a court can make. So, in this case, I guess its o.k., but it must be really difficult to prepare arguments over poorly drafted legislation? At least with a straight forward “ordinary meaning” judge I know where the judge is coming from. But the “reasonable” approach judge is confounding – just look at all the speculation about this case.

    All this is to say I think you are off base with Scalia on this. His “ordinary meaning” philosophy is not propaganda. Sure he can be inflammatory in support of that philosophy but its a philosophy of the judicial role – not life. The same with Krugman – its an economic philosophy and as dangerous as it may be for unintended consequences, it is not life. I’ll give you Goebbels.

  4. andrewpaterson1,

    All great points. I believe Justice Scalia’s attention to “ordinary meaning” is an exemplification of a judicial philosophy the pretends to be minimalist but when carried to the extreme is quite radical. I also disagree that one would have trouble predicting outcomes if Chief Justice Roberts is writing the opinion. What you do is to take all the tools in the tool box and not just one, and see where you come out.

    Anyway, I appreciate your thoughtful comment. I also appreciate, and truly so, the fact that you took the time to engage.

    All the best.

    RGK

  5. John Roberts’ opinion was “lawyer-like?”

    His two ACA decisions were the most intellectually dishonest rulings of all time. A complete disgrace.

    Think about it this way: How would the Nebraska Supreme Court decide the same case?

    Roberts presented himself to GWB and the Senate as the fair umpire.
    Turns out his strike zone varies based on who is at bat.

    Scalia nails it in his dissent. An exchange established by a State means what it says.

    With the four liberals on the Court, we all know that when a case with the slightest political implications arises that they will all vote the literal party line. Face it. They are politcal hacks that dress up their language with Ivy League legalese.

    But Roberts was supposed to be different.

    The bottomline is that average people now think the Supreme Court is a rigged political game. There is no Rule of Law anymore.

    And Krugman is a clown. Ronald Regan took a recession nearly as bad as 07’s and fixed it in two years. You can look it up.

  6. My knowledge of any effects produced by Krugman (via his columns or otherwise) is limited, so I’ll confine my comments to Goebbels and Scalia.

    Your brief description of Goebbels’ actions hints at the shocking success his methods enjoyed. Whatever else he was, Mr. Goebbels was extraordinarily successful at persuasion. His message was accepted and embraced by much of his intended audience.

    In contrast, Justice Scalia seems woefully unpersuasive. He is nearly universally regarded as one of the most clever, succinct, and creative writers in the history of SCOTUS. But citations to his writing are almost universally from dissents. Also, it’s worth noting that he has written numerous concurring or dissenting opinions whose results are virtually indistinguishable from at least four other Justices. That is, his unwillingness to bend even slightly to form a majority has stolen defeat from the jaws of victory.

    Either Justice Scalia is shockingly less successful at persuasion than Mr. Goebbels, or Justice Scalia isn’t trying to persuade. My guess is the latter. I think Justice Scalia is more concerned with regularly proving he is the smartest guy in the room. When the room is filled with other justices of the United States Supreme Court, collaboration and consensus-building does not provide much opportunity for exceptionalism. But dissent does.*

    Because of this, I believe Justice Scalia will be regarded by history as the smartest Justice to leave virtually no lasting impact upon the law. Rather than lead the class discussion, he would prefer to remain in the back of the classroom, lobbing spitballs.

    *I spent much of my early law career focused upon being “right.” Years of hard experience finally convinced me that — at least for a litigator — being right isn’t nearly as important as winning. While the two concepts have a lot of overlap, the unique cases that make it to SCOTUS can amplify the difference between the two. While my clients finally convinced me that winning the case was a better goal than having the best legal analysis, Justice Scalia is not accountable to a client. For him, writing the most strident defense of what he believes is the best legal analysis seems to be the primary goal, with persuasion a distant second.

  7. Your comment that the legislature should be left to clean up its own mess is well-taken. But why does it follow that a SCOTUS finding one way or the other is the best result? That is, I think it’s fair to say the ACA ruling from this week was the most “conservative” outcome in the sense that it refuses to alter the current behavior of the Executive and Congress. Given the current GOP majorities in Congress, isn’t this the outcome most likely to encourage a “fix”?

    My point is merely that SCOTUS has frequently acknowledged that its rulings on legislative interpretation can be quickly and easily rendered irrelevant by an Executive and Congress that desire a different result. Sometimes this happens, sometimes not. But when choosing between two alternative readings of a document, I’m not sure either choice clearly does a better job of encouraging the other branches to take action.

  8. Strunkl:

    Giant difference between trying cases and writing Supreme Court opinions. Also a giant difference in persuading someone for a vote on a bill and getting someone to join an appellate decision.

    Try this on for size: The four liberal Justices won’t vote with Scalia on cases that have political implications because they are politicians in robes.
    They are not applying the law; they are enabling a political policy.

  9. Is not where do you draw the line always the question or has the Duke of Norfolk’s Case gone out of fashion? The vice of mechanical jurisprudence, as Dean Pound long ago noted, is that it detaches from the real world and reduces the analogical method of the Common Law to a nullity.

  10. Anon., while I think that’s an overstatement, it is worth acknowledging that all of the Justices increasingly see themselves as actors in a larger political context. In the past, the relevant politics were those between & among the Justices themselves. I’m not sure any political faction has a stranglehold on political gamesmanship, however.

    My point was that from time to time Justice Scalia will dissent from a relatively conservative group of 3 or 4 justices because he doesn’t think their view goes far enough (Justice Thomas occasionally has done the same). In doing so, he either weakens a conservative majority opinion or even deprives a conservative group of a majority. Such behavior suggests that Justice Scalia does not want to “win” but simply maintain his image as a conservative iconoclast.

    I only mean this to contrast him with the ends-driven Goebbels from the Judge’s post. It would be fair to say my observation is a complement to Justice Scalia in that it supports the argument that he is not a machiavellian political actor. To me, though, it just means that he has different goals for his time on the court.

  11. Anon Your passion for your desired political answers reduces lawyering to a party toy. Both ACA cases raised difficult questions on which disagreement was possible and your mere disagreement with the Chief makes your politics clear but your legal skills not in evidence. I am not sure that the NE S Ct which gives emphasis to reading the whole document and rendering it a harmonious whole would disagree with Roberts. As for Regan and recession, given his deficits one could argue that he was our most Keynesian POTUS, a point Krugman loves to make. Clowns usually do not win Noble Prizes, so I guess we will not see you in Stockholm.

  12. Strunkl, while some of the current hot button issues in Con Law and Fed law can reflect partisan devides I think Judge K is right in his emphasis on the underlying differences in judicial philosophy of the Justices as opposed to party of appointment. While Judge Hercules may always know the right answer, the rest ofus must face the reality of hard cases.

  13. Very good, spot on, you seem to be in much better health. Scalia’s dissent was overtly politicial and ridiculous, in my view. That the act was poorly drafted is true, however subverting the obvious will of the people by exploiting an oversight in drafting is surely anti-democratic. 🙂 and (y) (y)

  14. I concede Justice Scalia’s high intelligence. But–

    I cannot agree with the common consensus that he is a great writer.

    His opinions are etched in a cynical acid, that detracts.

    The mordant music of his dissents– too much.

    My guess is that one hundred years from now legal historians will not be impressed with his writing for these reasons. I think he has maintained a following because folks are often amused by sarcasm. Many have been turned off by liberal jurists and a perceived judicial activism, and are impressed by Justice Scalia’s punchy prose. But I just don’t think it makes for great writing.

    Unless of course its on a blog. Then that’s a different story. Just my opinions (everyone has them).

    Glad you’re doing better.

  15. Roberts is a smart conservative legal tactician who knows how to leverage important cases to advance corporatist aims. In the first Affordable Care Act case, Roberts persuaded Ginsberg, Sotomayor, Breyer and Kagan to allow states to opt out of Medicaid expansion on federalism grounds and to use pre-New Deal reasoning to find that the individual mandate wasn’t authorized under the interstate commerce clause. In the second Affordable Care Act, Roberts persuaded the supposed liberals to attack the Chevron case and undercut the ability of executive agencies to make federal regulations.

  16. GB: ” Subverting the obvious will of the people?”

    You mean the exact words of the law drafted by the smartest staffers in DC after consulting Professor Gruber about how to give the States an incentive to create their own health insurance exchanges.

  17. Your political pretensions are showing.

    It is the duty of a court to effectuate legislative intent, and it cannot be presumed that they intended to write a law designed to fail. Some of that “very old English law” Scalia is always on about: Heydon’s Case.

    As for Scalia, he only quotes the Framers when it serves his purposes. He only cites English law when it serves his purposes. He only invokes “original intent” when it serves his purposes. He is the most fundamentally dishonest judge to ever sit on an American bench, and that takes some doing.

    Every judge’s strike zone depends on who is at bat, except in the most routine of cases. Even judges will tell you that.

  18. Wow. You sure didn’t strike this liberal the way your readers react to you. I too love Jackson, and enjoy reading you, even if I read this article differently than most. Let me start with an early comment, and how I wrote about your post.

    Marsha says:
    June 26, 2015 at 6:58 AM

    “I give you 66% on this post. Goebbels and Scalia both represented/represent their respective governments. Krugman represents himself, ”
    —————-

    Herucles is calling Paul a “Brilliant Propogandist- A LIAR!

    Unlike Goebbels( goebbels??) and Scalia, Paul is mostly right! Keynesian America GDP compared to Euro Austerity GDP since 2008

    Scalia’s Legal Bigotry vs. Pauls Economic Morality!

  19. Anon.,

    I respectfully disagree.

    First, John Roberts made it perfectly clear during his confirmation hearing that he had no overarching judicial philosophy. Rather, he essentially said he would act like any good lawyer. That is, he would use all the tools in his tool box rather than relying upon abstract theories such as “original meaning” or “plain meaning.” What you see in the ACA cases is just that–a lawyer’s approach to a complex set of statutory problems.

    Second, while I agree that Krugman is a clown, the driver of the biggest clown car in history was the absent minded Ronald Reagan. I assert that it was Reagan, manipulated by the likes of Ed Meese, who drove, and intentionally so, a wedge in our body politic that survives to this day. Meese, et al, correctly understood that if they could divide the country the Reagan revolution would shrink the government by paralysis and attrition. They were correct in their assessment, sadly.

    Had Bush the Elder beat Reagan for the nomination our country would not have been divided as it is now. I am proud that I worked with former Congressman Bill Barrett, one of the last moderates in the party of Lincoln, to beat Reagan and promote Bush as our Republican nominee. We lost, and so did the country. I have no respect for Reagan and his minions ’cause they brought to town a cancerous perspective that haunts us even now.

    The foregoing said, I respect your point of view, I thank you for engagement, and I wish you all the best.

    RGK

  20. Judge:
    This is the first time, with all due respect, that I vehemently disagree with you. However one feels about Justice Scalia and Mr. Krugman, it is inherently unfair to include them in the same breath with a monster like Goebbels. Note that I have purposely left off the honorific “Doctor” in using his name. The shortcomings of Messrs. Scalia and Krugman pale in comparison to someone who was the chief propagandist for a regime whose reputation is measured in tens of millions of corpses and deserved universal condemnation. Compared to this, philosophical and ideological disagreement of those in a free society (and, not coincidentally, the same society that took the lead in smashing the Nazis out of existence) is truly a horse of a different color. On the other hand, I’m glad to see that you are feeling better.
    Robert

  21. Jon,

    With sincere respect, your paranoia is showing. I truly believe that it is silly to suggest that the Chief is out to “advance corporatist [is that a word?] aims.” Upon what empirical basis do you make such a claim?

    All the best.

    RGK

  22. Anonymous,

    Interesting POV. I had never considered the plausible argument that Scalia poisons his legacy with his own pen. Interesting, yes, indeed.

    All the best.

    RGK

  23. Strunkl,

    You are the second person to suggest that Scalia will be disregarded by history. Fascinating. See my reply to anonymous at 5:15 PM. All the best.

    RGK

  24. Judge Thank God judges are not selected for knowledge of economics since there is no classic comic of macroeconomics and whatever you used as a substitute was clearly deficient. Stick to what you know and leave econ to the pros or should we await your contributions to international trade theory and economic geography, or perhaps you will move into physics and give us your theory of everything.

  25. andrewpaterson1,

    I agree that his “ordinary meaning” philosophy is not propaganda. Remember I was considering two things: propagandists and ideologues. Scalia is clearly an ideologue. He is also a propagandist. His opinions cannot be read any other way.

    All the best.

  26. First, John Roberts made it perfectly clear during his confirmation hearing that he had no overarching judicial philosophy.
    RGK: are you saying you don’t know that Roberts is a home grown and GROOMED
    BOY for the Federalist society? Balls and Strikes(BS)- gimme a break!

    I am like my BOY Krugmanj, except neither of us believe it is sniping if it is True!

    AND, I do really enjoy reading you RGK! With readers like me…..

  27. Judge, while the CJ SCOTUS may not be interested in advancing corporate interests, he clearly does have a theory of structural Con Law that involves a shrinking of the commerce clause. Jon is spot on with regard to a retrenching of national power and a sense that protection of the States has been to little attended to. His commerce clause opinion on ACA is clearly a marked change in the course of the law, and It is right out of the Federalist Society playbook, and was foreshadowed by his dissent in the DC Cir case about the non traveling toads in CA which came up at his confirmation hearing. On the question of business interest he is at least more tender to them though his reasons very with the subject matter.

  28. Barkley Grossman,

    I really don’t think CJ Roberts is anyone’s “boy.” That said, I appreciate your taking the time to write. Do it more often!

    All the best.

    RGK

  29. repentinglawyer,

    I agree that CJ Roberts has the views that you outline. I happen to disagree with them. That said, he is not idealogue. He can be reasoned with if one is smart enough to stay in the ring with him. Most of us would be knocked flat on our ass in the first round.

    All the best.

    RGK

  30. I won’t be as blunt as RJ. I will just say that Scalia is a piece of work. So are his opinions.

    If Obamacare is now “SCOTUScare,” isn’t the Constitution now the SCOTUStitution? They have rewritten so much of it that any resemblance to the original is strictly accidental. They have emasculated the Seventh Amendment, decimated the Eleventh Amendment, and eviscerated the Bill of Rights. We’ll find Jimmy Hoffa before they find the Good Behavior Clause.

    If the Rule of Law is a Law of Rules, we are not living under it. But SCOTUS got these two right, if only by accident.

    To answer the question, Scalia has nothing in common with the other two. I do have it on reliable authority that he was, however, the stunt double for Pizza the Hutt in Spaceballs.

  31. His jurisprudence to date. He gets a Ron Jeremy-class woody any time he hears the word “Exxon.”

  32. I respectfully disagree. Almost singlehandedly, Scalia has resurrected originalism.

    Unfortunately, he is not an originalist.

  33. As others have noted, Scalia’s dissenting opinions tend to violate his own rules of legal writing. When he is in the majority, he tends to just respond to dissents by showing why the dissent is wrong. When he is in the minority, it’s not just that the majority is reaching the wrong conclusions from precedent or ignoring the history. Instead, in Scalia’s writings, the majority is not playing by the rules (because if they were, they would agree with Scalia). He writes in dissent, not to persuade other lawyers or future apolitical justices, but to the partisans out there, appealing to their political support for his position so that, maybe, in the future, those who agree with Scalia will get to choose justices and will pick people who agree with Scalia.

    While Scalia (and his law clerks) may have a brilliant legal mind, the same is true for most who end up on the Supreme Court. His disrespect for the opinions of others is why it is unlikely that future generations will not see him as one of the better justices.

    p.s. I did enjoy seeing the dissents in Obergfell claiming that the majority had not learned the lessons of the court’s errors in Dred Scott and Plessy while themselves channeling the ghosts of the Plessy majority (i.e. that any slight that gays and lesbians feels from being treated as inferior by marriage laws is just in the minds of gays and lesbians and not in the fact that they are being treated as inferior.)

  34. Robert,

    Your comment is fair and very much on point. I considered it before I wrote the post.

    I had no intention of slandering Krugman or Scalia with the sins of the Nazi. But, I do think the propaganda/ideologue comparision is apt. I used Goebbles not because he was a monster and I agree that he was but rather because he was an expert propagandist and a committed ideologue. In that sense only, Krugman and Scalia can fairly (at least in my judgement) be compared with the Goebbles.

    All the best.

    RGK

%d bloggers like this: