Dahlia Lithwick seems to think Justice Scalia's comments in the following quote offensive. Interestingly, there's no explanation at all of what is supposed to be offensive. Here is his comment (via Orin Kerr, who gives the broader context and says some similar things to what I'm about to say):
We have a case involving standing which says that -- you know, the doctrine of standing is more than an exercise in the conceivable. And this seem to me an exercise in the conceivable. Nobody thinks your client is really, you know, abstaining from tequila down in Mexico because he is on supervised release in the United States, or is going -- is going to apply having been deported from the country for criminal offenses, he is going to apply to come back -- and look, these are ingenious exercises in the conceivable. This is just not the real world.
I can think of several reasons someone reading this quote out of context might think it offensive, but I'm having trouble seeing how any of them is both (1) a good interpretation of the justice's words and (2) offensive in the right sort of way to justify the way Lithwick describes the offense.
1. Perhaps Lithwick thinks he's relying on a stereotype about Mexicans drinking Tequila. But isn't Tequila the national drink of Mexico, something Mexicans are proud of? There shouldn't be anything offensive there, should there be? If this is the problem, then I can't see why she finds it negative.
2. Perhaps it's more of a general stereotype about Mexicans being drunks. But I see no mention of the defendant as Mexican except in nationality. There's no reliance on his ethnicity or race in the arguments, and no one indicates a thing about it in the immediate context. Lithwick doesn't even mention it. Mexico comes up, but that's a nation, not an ethnicity. The most obvious way to read Justice Scalia's comment is that we have no reason to believe the guy won't abuse the terms of his probation in an environment where it's unenforceable. In that light, saying that he's probably drinking the national drink down there while unobserved isn't really offensive in any way relying on stereotypes. That's certainly not a charitable interpretation, anyway. But maybe Lithwick doesn't want to be charitable. See #5 below.
3. Maybe it's something about criminals who are convicted substance abusers engaging in further substance abuse. But isn't that just a likely conclusion? If the guy is a cocaine abuser, he's known to do this sort of thing. Surely it's possible that he won't, but I think that's what Scalia means by calling it an exercise in the conceivable. No one thinks that just because something is conceivable that it's automatically going to be likely. (At least that's what he seems to me to be saying.) That seems to me to be a reasonable argument. We have to rely on past behavior when applying how laws that allow differential treatment based on behavior. This is a case of exactly that, as far as I can tell, so his past behavior is certainly relevant. If she's upset at this, then she should be upset at the law, not at the justice who is trying to apply it in this case.
3. More plausible than the above explanations is that Lithwick is upset because Tequila is sometimes associated with those stereotypes of Mexicans as drunks, and Scalia should have been aware of that. So it's not that his comment is in itself offensive due to some necessary connection, but he should have been aware how some would have taken it. Given that Tequila is the national drink of Mexico, this is somewhat blunted, but perhaps there's something to it. This might be reason to think he could have been more sensitive to those who are affected by such a stereotype.
But does it justify saying that this comment "would have flattened us had a Souter spoken it"? I'd be a little surprised to hear Justice Souter speaking casually about someone drinking a particular drink of any kind, but that's a personality difference between the two justices, not an indication of greater sensitivity to ethnic stereotypes. Souter wouldn't describe anyone involved in a case so casually. Someone of a different personality type might, but I can't see how that justifies the way Lithwick frames the problem. She calls this "deliberate carelessness with language" and "his sense that he is somehow above the sorts of linguistic delicacy the rest of us expect in our dealings with others". That suggests that he is willfully and deliberately doing something that would offend.
I don't see how his language shows that at all. At most it shows that there's a stereotype somewhere in the neighborhood that some might get offended about his language calling up. She then treats this as if it's part of his general practice of what she calls "rhetorical body-slams". That just doesn't seem to fit with interpreting her outrage in this way. So I don't think this is what she means.
5. Maybe it's just the fact that Justice Scalia said it. If he said something involving anything remotely connectable with race, ethnicity, or anything else that someone might get offended about, then he must have done so out of the worst motives possible or at least out of the worst ignorance and insensitivity someone could possess. When you're convinced a priori that someone is an ignorant and hateful person, it's pretty hard to see things they say as inoffensive.
I'm not finding a plausible explanation for Lithwick's column that isn't an immoral portrayal of the justices words and/or motivations. Am I missing something?