Antonin Scalia: A Dissenting Opinion

Since the death of Associate Justice Antonin Scalia on Saturday there have been the usual encomiums. Most, of course, came lock-step fashion from the American right. Scalia performed yeoman’s service in support of policy provisions that the right could not hope to achieve by the democratic process. And the Republican Senate leadership has announced they will beatify him by refusing to exercise their constitutional duty to “advise and consent” to a replacement nominated by President Obama. For all theiur talk of constitutional sanctity, the right has never been devoted to process, constitutional or otherwise, and that is another reason they dote on Scalia—neither was he.

What is surprising is not devotion of the GOP (shown in tributes and in refusal to allow government to function as it should), but rather the number of tributes, beyond the usual say-no-unkind-thing-of-the-dead sort, that centrist and even moderately liberal media have offered. Though they generally stay away from the particular policies he advocated, they nonetheless suggest he was somehow transformational or caused derangement syndrome among liberals or even was “historical” in some vague way. (I used the italicized words in the previous sentence advisedly, and I will return to them later.)

Scalia death is big news, not because of his contributions to American jurisprudence, but because he became a media Rock Star (as they say these days). He achieved this status by his pointed and colorful attacks on his opponents in decisions and by his increasingly outrageous public statements in speeches that toward the end discarded all semblance of the dignity and reserve that the Court had tried to hold itself to over the years. Scalia not only would not play his part, he actively tore down the pretense, as he saw it, of the institution of the Supreme Court.

When Scalia went to law school at Harvard, there was still the consensus there and in fact throughout the profession that an accepted process prevailed by which the common law developed. The Supreme Court, for all its notoriety over Constitutional decisions, is above all a common law court, which attempts to proceed by the techniques and be governed by the methodology of common law courts, which extends back to time immemorial, as lawyers once said. One of the very best justices of the Supreme Court, Oliver Wendell Holmes, even wrote a book in 1891, entitled The Common Law. The book spanned the the gamut of judge-made law in state courts and is best known for the apothegm: “The life of the law has not been logic; it has been experience.” This did not mean that judges decided cases based on their personal experiences. Rather it meant that the law responded to the experiences of mankind in attempting to build a system that reflected civilized values and the realities of life as men lived them.

How does the common law do this? At the root it presupposes that the law is a cooperative endeavor. Those involved must proceed from the working principle that the sum of previous decisions of courts are reasoned applications of rules and guidelines that sprang from assumptions inherent in the society and shown by acceptance or rejection or qualification, often by legislatures. The main belief underlying the enterprise, that the law is a cooperative enterprise,  sees it as in institution built over years or centuries, not subject to prevailing theories or new ideologies and not subject to personal whims of individual judges. Previous decisions are, at a minimum respected, and unless shown to be palpably wrong or undeniably inappropriate, used to guide new questions. Conditions may change such that a prior decision produces results contrary to their intention. In such cases the decisions can be limited by later ones or even on rare occasion overturned. But the raw material for applying decisional law to cases and in evaluating the current status of precedents are the facts contained in the record of the individual case before the court. Courts are not to innovate rules based on on political fads, new ideologies, political “science” or gut feelings. Though established to uphold liberal (in the old fashioned sense) political values, it is supposed to (or so we thought) do so by conservative (in the old fashioned sense) means.

The rationale of this approach speaks to the nature of courts themselves. Judges are isolated from many sources of information. The laws of evidence restrict trial court decisions to facts of a very particular source. Appellate courts receive those very same facts. Courts do not hold public hearings and call experts like Congress or state houses do. They are not made up of members who are familiar with the current sentiments of the country as presumably politicians who must navigate those shifting opinions are. The justices’s training is not as experts in economics, history (except in a very narrow way), natural or physical science. Their “findings” are not made from personal experience but rather by evaluating the testimony of others. Moreover, courts can only enforce their decisions through another branch (the executive). If a court makes a particularly unpopular decision, it risks having the executive ignore it, as President Andrew Jackson memorably once said: “John Marshall has made his decision; now let him enforce it!” The way to prevent this breakdown, highly dangerous in a government which is supposed to govern by the consent of the sovereign people,  is to move cautiously and persuasively.

This does not mean that the Court should never overturn precedent. There are times when a decision is so egregious or out of step with the tenor of the times that it becomes apparent immediately. Such was the case with the origin of the “Substantive Due Process” doctrine which overturned state work week legislation on the ground that it violated the “rights” of the parties to freely contract with each other (such as by “freely contracting” to an 80 work week). A combination of the Depression and President Roosevelt’s threats to pack the Court undermined the public’s acceptance of the decision. But it was his eventual appointment of a sufficient number of judges to overturn the rule that did it in. This was not, however, a case of judicial strong-arming. Roosevelt’s failure to expand the Court and the backlash it produced prevented that and became a cautioning story thereafter. Over time new judges saw that, in light of the country’s experience with the new doctrine of “substantive due process,” the precedent was out of step with its predecessors and inapplicable to current affairs. In short, it was “bad prcedent.” The case itself, Lochner v. New York, had all the hallmarks of failing to abide the process of common law accretion. Two of the members of that very court, Justices John Harlan and Oliver Wendell Holmes, pointed it in their dissents that the decision was the product of new ideology and was beyond the traditional role of the Court. Justice Holmes summarized the problem with his famous observation that “[t]he Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.”) Even so when the doctrine was finally put to rest, the Court (by Justice Harlan Stone) in United States v. Carolene Products Co., it was done by explaining how the original decision had proceeded on a basis out of step with Constitutional common law and how the Court ought to avoid such departures in the future (see the famous fourth footnote in the case).

The same approach was done when the Court finally upended the separate-but-equal doctrine, a doctrine that we now all agree was ill-founded. It is difficult even to square with the text. But when the Court approached it in the 1950s, Earl Warren was intent on making the decision unanimous so that it could not be criticized as simply the decision of the majority of a policy-setting board which was comprised of arbitrary members. It was important to Warren, and to generations of lawyers at the time Scalia was educated, to maintain the “authority” (in the original sense) of the Court. The search for unanimity is not simply a ruse. To have lawyers of high ability agree on a set of reasoning requires the participants to engage in give-and-take. It reduces the egotism. that is rampant in the profession. It is the process of making law in as a cooperative endeavor. And the result, an extended argument which each of the participants endorses is likely to be more persuasive, another important consideration beyond the institutonal integrity of the court: the feeling is (or once was) that free men must be persuaded (not hectored) to give their consent to the laws that govern them.

But then there was a right-wing blossoming in this country, cultivated by various groups objecting to anti-war protestors, African American activists, and in large part to paying any more taxes than they could get away with, even if it meant installing reactionary politicians as part of the bargain. The Supreme Court was filled with justices by two of the earlier gardeners in this field, Richard Nixon and Ronald Reagaon, and later George H.W. Bush and his son, who were less concerned with the institution of the court than with particular policy outcomes. And common law and the thinking behind it be damned. Only one of those four Presidents had ever formally studied and practiced law, and he turned out to be the chief felon. So respect for law as an abstract was not high on their lists of prioritues

William Rehnquist, a Nixon appointment, was pioneer in staking out policy-based decision and corralling just enough votes for his “side.” But even though right-wing Presidents had appointed most of the justices, the institutional respect that was inbred into these lawyers prevented them from acting en banc as a political phalanx. It is also true that Rehnquist concentrated mostly on legislation, using interpretation to blunt their regulatory purpose, and access to federal court, restricting it to blunt a useful avenue for enforcement, especially when the executive branch was disinclined to carry out the purposes of federal laws. These more obscure areas prevented scrutiny in the changed method because they were first employed in areas of little interest to the mass media.

When his time came, Scalia played on a more public canvass, staking out positions in constitutional law, which more fundamentally prevented reform than Rehnquist’s approach, for Scalia sought to show how Congress and the executive lacked power to act in ways counter to Scalia’s policy preferences. But at the beginning of his career, despite his own immense arrogance, Scalia did not act as though the Court were simply a legislative body of superior power, where the member were entitled to vote their own whims (where he later would). No, he claimed that he was an “Originalist,” someone who interpreted the Constitution as it was intended to be understood. His “Originalism” allowed him to impose his own views and not bother with the clunky mechanism of common law adjudication.

We can question whether “Originalism” is either useful or even possible. For, after all, whose intent do we look to? Is it that of Gouverneur Morris, the delegate who chaired the style committee and whose graceful, but subtle and terse, prose is the final draft of the document? (If the question involves the first 10 amendments, the intent in that manner would be that of James Madison, who drafted them with a considerably less fluid style. And so on for the other amendments.)  Is it each delegate who voted on the draft?  What about the state legislatures that ratified the document, do their interpretations warrant consideration?  Should we consult the political literature, such as the newspaper essays of Alexander Hamilton, James Madison and John Jay, collected in the Federalist Papers, which argued for ratification? Should the antifederalist opinions be consulted to see in what context the final document was written in and what it reacted to? And if we can decide whose intent is important, do we examine their correspondence and diaries to see how they understood the words and doctrines used in the document? Or do we look to how these same people acted in government? George Washington, the President of the Constitutonal Convention in Philadelphia, was President for 8 years after ratification. His actions presumably drew on his understanding of the Constitution (no one ever denied his devotion to its principles), as did his cabinet and the Congresses of his administration. The “intent” of the founders is an enterprise that has occupied historians till our day and will continue. Is this how the Supreme Court should decide?

The absurdity of the “Originalist” school need not detain us long, because Scalia was really no “Originalist.” Scalia emphasizes “originalism” when he wants to reduce the power of the federal government, either in favor of the states or to eliminate it altogether. But this is not what the Federalists, those who eventually drafted and won ratification of the Constitution, worked for. The Constitution itself was a document designed to increase the power of the Federal Government at the expense of the states’. It came about years after Yorktown, when the conclusion was fairly common that the union of states was not a feasible political organization. States lacked the power to put down insurrections (or indeed slave rebellions, an ever present fear that reduced the objections of the antifederalist southerners) so it was in the interest of states to surrender sovereignty for security. Moreover, only a united commercial union could bring the country out of the deep recession it found itself in after the Revolution. And when the Constitution was ratified and the government finally formed, the federal government exercised sweeping powers, well beyond what was literally found in any provision of the document: It assumed the war debts of all the states, it created a bank, it issued securities, it levied taxes on production (such as, famously, of whiskey). If the those who instituted the first government had the same intention as when they drafted the constitution, then clearly they did not intend to promote federalism or restrict the powers of the federal government to specific enumerated. And, indeed, they included a “necessary and proper” clause to make that very point. And in actual practice, no power the Federalists ever exercised in the first 12 years of the federal government ever considered deference to the states on any great power they exercised. And it wasn’t just the Federalists who interpreted the Constitution extensively. Thomas Jefferson, the nominal leader of those who opposed the Constitution, negotiated and bought a territory comparable to the existing country from France. Where is that power specified? Al of this only discusses the beginning of constitutional history. The document has been amended over time, notably after the Civil War. In each case expanding the role of the federal government at the expense of the states.

The proof that Scalia never really gave a fig about Originalism is found in his vote in Bush v. Gore. That case is as invidious to those who care about the role of the Court in American political life as any. It granted an interim stay to the recount of the vote for President in Florida pending argument on George W. Bush’s claim that the recount would violate his individual 14th Amendment rights to equal protection. The fourteenth amendment was one of the three civil war amendments drafted largely by the radical Republicans in the wake of the Confederacy’s failed insurrection. No one seriously could maintain that anyone connected with the drafting, adoption or ratification of those amendments could have foreseen their use to stop vote counting in the election for President of the United States. And Scalia, who writes a special opinion in support of the Court, makes no attempt to do so. He coyly suggests that it would be inappropriate to discuss the merits since the decision was simply a preliminary injunction pending arguments on the merit. Of course, given the timing (the deadline for the meeting of Electors was imminent) made an argument on the merits impossible. It was the injunction that decided the controversy. It was an early portrayal of how Scalia attempted to be too clever by half. And if you trace the arc of Scalia’s career, a good case can be made that it was then, when in the midst of a constitutional crisis a judicial putsch, passed muster by patently disingenuous “reasoning,” that Scalia threw off the mask.

If there were any doubt about the question of Originalism (or even faithfulness to the text), let’s consider Shelby County v. Holder. The fifteenth amendment to the Constitution  guarantees the right to vote in the face of attempts to deny it by the United States or any particular states based on race (or other factors). The second section places the responsibility for enforcement in the hands of Congress. Congress discharged that responsibility by enacting the Voting Rights Act of 1965 and regularly renewed it. In the Shelby County case, the Supreme Court held that the information by which Congress based its coverage formula was too old to be reliable, and therefore struck it down. It did so without any textual or any other written support in the Constitution allowing the Court to substitute its own opinion for that of Congress, and indeed in the face of Section 2 of the 15th Amendment which givers unfettered right to Congress to enact such legislation without any limitation on the fact-finding process. It was, just like Bush v. Gore, a power play by five judges who like the Queen of Hearts came to decision-making in a novel way: “Sentence first! Verdict afterwards.”

Over the years Scalia became predictable in his vote. He became intellectually lazy, and developed his craft of parodying the arguments of others and appearing clever at oral argument. Instead of using the limited time of advocates to explore the legal implications of arguments Scalia became notorious for grandstanding, bullying and preening. At a dinner at Oxford, he told a student who dined with him that he hoped that C-Span would tape and broadcast oral arguments “because he’d obviously outperform his fellow justices. It was not a participation in a good faith cooperative endeavor to fashion laws to govern free men; it was a display of the personal brilliance of a self-loving egoist. And Scalia gloried in this role as he showed in his out-of-court speeches (many of which he insisted by off-the-record and without media observation).

Scalia did not solely invent the coarsening of our public discourse. We live in a time when a Congressman can shout that a President lies during the State of the Union address. Indeed, the politicians vying for the Presidential nomination of that same party, all partizans of Scalia, spent the night of his death calling each other liars. That same party, in control of the Congress, appoints as heads of the various science committees politicians who claim that the world’s scientists are hoaxers and frauds. Talk radio, one entire television network and countless websites spew forth the same noxious combination of invective and falsehood. No, Antonin Scalia did not cause the pollution of our discussions, but he certainly floated atop the effluent while he was alive.

The particular outrages that took place under his pen, Citizens United, establishing a personal right to bear arms, upending a near unanimous renewal of the Voting Rights Act, and any number of other policy-directed decisions can be undone over time, probably with much work. And he is not alone in this role. Justice Alito, for example, labors in the same field as studiously as Scalia did. But he does so without drawing attention to himself. It is this aspect, the promotion of the belief that the work of the Supreme Court is simply the sum of the votes of independent egos, that marks out Scalia’s distinction, if that is the word. The combination of his arrogance, his self-promotion and his lack of respect for the opinions of others that is unique in the history of the Court. If this is what is considered transformational in our time, then God save us from transformational figures. The odium he subjected the Court and law to by holding himself above the accepted practices of personal humility and restraint, the rules of the institution he was selected to serve not overshadow and respect for colleagues and others of differing political views will be a lifetime in washing away. So on Friday when they are burying the body of Antonin Scalia I will not be one praising him.




  1. Bravo, sir, bravo!

  1. February 17th, 2016

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