aTypical Joe: a gay New Yorker living in the rural South

Sunday, March 27, 2005

Scalia’s supreme confidence

Just as Jeffrey Rosen’s April Atlantic profile of William Rehnquist is not available online (I posted on it here), neither is last week’s Margaret Talbot profile, “Supreme Confidence: The jurisprudence of Justice Antonin Scalia” from The New Yorker. (One-upping the Atlantic, the New Yorker’s isn’t even available to subscribers. A web only interview with Talbot on Scalia is). My post therefore relies on my own transcription.

Talbot confirms Rosen’s observation that Scalia’s no consensus builder, noting that in the early years, “Scalia’s exuberant questioning was not well received by his colleagues” but now “all of them - with the exception of Clarence Thomas - are garrulous:”

Scalia, having inspired his brethren to become equal in volubility, now primarily distinguishes himself with the force, and sometimes the scorn, of his written opinions. If his questioning is for the benefit of other justices, then his opinions seem to be for the benefit of a future generation that may yet be saved for [the philosophy Scalia ascribes to called] originalism. While his dissents often nimbly dismantle the dodgy logic of the majority opinion, they do so in a tone of such bitter disappointment that it’s hard to imagine his arguments winning over any justice who voted against him. (In fact, his unstinting critiques often help his opponents refine their arguments in subsequent cases.)

An exception to prove the rule:

Scalia has said that Ginsburg is the liberal with whom he’d most like to be stuck on a desert island. “Sometimes he has an Italian temper that flares up,” Ginsburg told an audience at the Georgia State law school in 2003. Still, she recalled, when he wrote the majority opinion in the V.M.I. [Virginia Military Institute] case Scalia came to her chambers to show her a draft of his dissent, saying, “Ruth, you’re not going to like this...but I want you to have my dissent as early as I can give it to you so you’ll have time to respond.” Ginsburg added, “He absolutely ruined my weekend, but my opinion is ever so much better because of his dissent.”

I’m pleased to read that, “Every year, he hires at least one liberal clerk, to give him somebody to spar with.” Lawrence Lessig was once a Scalia clerk, though I don’t know if a chosen liberal.

Reagan, who “began ‘breeding’ Supreme Court Justices - placing possible candidates on the courts of appeal to test them for philosophical consistency,” had to love this about Scalia:

The scholar David Yalof, in his book “Pursuit of Justices,” observes that a “thorough search of Scalia’s record uncovered not a single opinion in which either the result or the ground of the decision seemed problematic from a conservative point of view.”

He put Scalia, who “sailed through his confirmation hearings,” on the bench in 1986.

Scalia’s originalism means “that judges should adhere to the precise words of the Constitution, and believe that the meaning of those words was locked into place at the time they were written.”

He has been strikingly successful at getting his brethren to give less importance to a statute’s legislative history. In its 1981-82 session, the Court examined a law’s legislative history in almost every statutory case. By the early nineties, according to a study by Gregory Maggs, a law professor at George Washington University, it was used in forty percent of the cases. “With Justice Scalia breathing down the neck of anyone who peeks into the Congressional Record or Senate reports, the other members of the Court may have concluded that the benefit of citing legislative history does not outweigh its costs,” Maggs wrote.

Originalism is effectively questioned, I think, by a hero of mine, Cass Sunstein:

A doctrinaire originalist...would not only reject Brown [v Board of Education, which Scalia says he’d have voted for] but find that “New York Times v. Sullivan, the cornerstone of modern free speech doctrine, is also wrong; that the government may ban political dissent when it is dangerous...that the federal government can discriminate on the basis of race and sex however it wishes; that race discrimination and nearly all sex discrimination by the states is unobjectionable; that compulsory school prayer is constitutionally acceptable; that in short, most of the modern constitutional law...is illegitimate, fatally undemocratic, a kind of usurpation.”

Moreover, as Sunstein points out, the question of “whether the original understanding of an old test should bind current generations is not at all simple.” He explains, “We can agree that the Constitution itself should be taken as binding without finding it self-evident that Americans must be bound by past understandings of votes by some segment of the citizenry over two centuries ago.” The Constitution, it should be noted, does not stipulate the rules for its interpretation - and the idea that the framers would have welcomed scrutiny of its provisions in the light of changed circumstances is at least as plausible as the notion that the framers intended to freeze, for all time, the meaning of due process or cruel and unusual punishment. All of this calls into doubt Scalia’s certainty that he is right.

There’s one area worth noting, that I am in surprising agreement with Scalia. The establishment of religion:

He told a recent visitor to the Court that the metaphor of a wall between church and state cannot be found in the Constitution and has no legitimate place in our legal tradition...For Scalia, the first words in the Bill of Rights ("Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof") mean only that America should not have a national church or coerce people...into participating in religious exercises.

All that separation is more trouble than it’s worth. But I suspect equal treatment of religions (say, for example, Christian and Muslim) would give rise to just as much trouble.

The Scalia profile is well worth reading!

Here is a transcript of a speech Justice Scalia delivered at the Woodrow Wilson International Center for Scholars on March 14, 2005, and here is the video (via Real Player) of the broadcast by C-Span. Via How Appealing.

The speech was seen by Talbot and others as part of a campaign for the job of Chief Justice, not so much in its text as in that the press averse Scalia allowed C-SPAN in. It is praised by conservatives because it brilliantly identifies the problem of treating the Constitution as a “living Constitution.”