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The Honey Badger
By B John Burns
March 7, 2013

Antonin Scalia is the honey badger of our judicial system.

You’ve all seen the famous YouTube video about the Crazy Nastyass Honey Badger.  If you haven’t, check it out before you read the rest of this entry:  www.youtube.com/watch?v=4r7wHMg5Yjg

You all know that Justice Scalia said some pretty offensive things recently during an oral argument in a case involving the constitutionality of the Voters Rights Act.  It's just another “racial entitlement”, or something to that effect.  Everybody’s calling on Justice Scalia to apologize, or to retire, or in some manner or form to acknowledge that he understands his mistake.

Justice Scalia will not retire over this.  He will not apologize.  If he was an elected politician, he would apologize publicly.  Not Justice Scalia.

Because Justice Scalia is the honey badger, and the honey badger don’t give a ****.

Justice Scalia will not apologize, because he has a clear picture of what, in his mind, is the right position and the wrong position on virtually every subject.  He has a solid, unwavering world view.    If you disagree with him, you are wrong.  He is as comfortable being the sole dissenter in a case as he is writing the unanimous majority opinion.   The whole world can label him a racist, but he is unfazed.

Because Justice Scalia is the honey badger, and the honey badger don’t give a ****.

And it’s not because he is declining and thus, as some have suggested, needs to think about retiring.  Justice Scalia is not stupid.  His positions may be offensive to us, but he supports them with his unique brand of reason and precedent.  

When he is on our side, he is very, very good.  Antonin Scalia is the patron saint of the Confrontation Clause.  We know that especially here in Iowa.  Generally, he is not our friend on Fourth Amendment issues.  However, I just finished studying Baily v. United States, decided a couple weeks back.  Writing for the majority, Justice Kennedy held that the rule in Michigan v. Summers, 452 U.S. 692 (1981) that police executing a warrant to search a premises may seize all occupants of the premises incident to the search does not apply where police observe occupants leaving the premises but wait until the occupants are several blocks away.

Justice Scalia authored a very interesting concurring opinion in that one.  Justice Breyer, often viewed as one of the progressives on the Court, wrote a dissent joined by Justices Alito and Thomas.  Like the Court of Appeals, he examined the particular circumstances of the seizure in view of the policy justifications underlying Summers, and concluded that detention was reasonable.  Joined by Justices Ginsburg and Kagan, Justice Scalia countered that the Summers rule is a categorical one, and does not anticipate the type of balancing conducted by Justice Breyer.  If occupants are present during the search, Summers justifies their seizure, without any weighing of the circumstances.  The subjects in Bailey simply were not occupants.  Generally, Summers is a benefit to law enforcement, Justice Scalia noted, but “the Government must take the bitter with the sweet.”  He repeated language from his concurrence in Thornton v. United States, 541 U.S. 615 (2004) that “[c]onducting a Summers seizure incident to the execution of a warrant ‘is not the Government’s right; it is an exception – justified by necessity – to a rule that would otherwise render the [seizure] unlawful.”

We can USE that one.

By the way, I was first introduced to the Crazy Nastyass Honey Badger video by Fifth District Judge Mary Pat Gunderson.  She shouted across the parking lot one morning that I should Google the honey badger and watch the video.  It changed my life.  A couple weeks ago, I went to see the Second City touring troupe here in Des Moines.  I ran into Judge Gunderson’s husband, Joe, and one of her twin sons.  I can’t tell you which one it was, because they look alike.  I’m sure she can tell them apart.  But this is what I really respect about Judge Gunderson.  She does what I would do if I had twins.  I would shower one of them with gifts.  I would send him to Second City, and then make the other one stay home and clean his brother’s room.  It would be a grand sociological experiment.

Maybe it’s because I’M the honey badger.  And I don’t give a ****.

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By B.John Burns 

This reference offers a comprehensive analysis of Iowa criminal procedure. It analyzes criminal procedure, including pre-trial, trial, sentencing, and post-conviction procedure. Provides a comprehensive manual covering all procedural aspects of an Iowa criminal case, from the time you are first engaged to represent a suspected or charged individual, through the final steps of a criminal appeal or state or federal post conviction relief proceeding. Separate divisions review evidentiary issues in criminal trials, constitutional provisions affecting criminal cases, and the representation of inmates in prison litigation.

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