Antonin Scalia: The Donald Trump of the Supreme Court

by Corey Robin on February 14, 2016

Antonin Scalia has died. Cass Sunstein, one of Obama’s favorite law professors and, for a time, regulatory czar in Obama’s administration, had this to say from his perch at Harvard Law School:


(Suddenly I see the wisdom of Bill Buckley’s famous quip about Harvard.)

In the coming days, the retrospectives on Scalia’s career and predictions of what is to come will be many; they’ve already begun.

But for me Scalia is a figure of neither the past nor the future but of the present.

If you want to understand how Donald Trump became the soul of the Republican Party, you need look no further than Antonin Scalia. Scalia is the id, ego, and super-ego of modern conservatism. He was as outrageous in his rhetoric (his unvarying response to any challenge to Bush v. Gore was “Get over it!”) as he was cruel in his comportment. Sandra Day O’Connor was the frequent object of his taunts. Hardly an opinion of hers would go by without Scalia calling it—and by implication, her—stupid. “Oh, that’s just Nino,” she’d sigh helplessly in response. Even Clarence Thomas was forced to note drily, “He loves killing unarmed animals.” He was a pig and a thug. (Sunstein, by contrast, believes “he was a great man, and a deeply good one.”) And he was obsessed, as his dissent in PGA Tour v. Casey Martin shows, with winners and losers. They were the alpha and omega of his social vision. He was the Donald Trump of the Supreme Court.

And the second most misunderstood judge of the Supreme Court, as I argued in a lengthy profile of Scalia, which originally appeared in the London Review of Books and which I revised extensively for one of my chapters in The Reactionary Mind. I reproduced that chapter in four parts on my blog. Here they are again.

Prologue: I’ve Got a Crush on You

Scalia’s mission, by contrast, is to make everything come out wrong. A Scalia opinion, to borrow a phrase from New Yorker writer Margaret Talbot, is “the jurisprudential equivalent of smashing a guitar on stage.” Scalia may have once declared the rule of law the law of rules—leading some to mistake him for a stereotypical conservative—but rules and laws have a particular frisson for him. Where others look to them for stabilizing checks or reassuring supports, Scalia looks for exhilarating impediments and vertiginous barriers. Where others seek security, Scalia seeks sublimity. Rules and laws make life harder, and harder is everything. “Being tough and traditional is a heavy cross to bear,” he tells one reporter. “Duresse oblige.”


Act One: Diva of Disdain

Scalia’s conservatism, it turns out, is less a little platoon than a Thoreauvian counterculture, a retreat from and rebuke to the mainstream, not unlike the hippie communes and groupuscules he once tried to keep at bay. It is not a conservatism of tradition or inheritance: his parents had only one child, and his mother-in-law often complained about having to drive miles and hours in search of the one true church. “Why don’t you people ever seem to live near churches?” she would ask Scalia and his wife.  It is a conservatism of invention and choice, informed by the very spirit of rebellion he so plainly loathes—or thinks he loathes—in the culture at large.


Act Two: American Nietzsche

Left unresolved, however, the contradiction reveals the twin poles of Scalia’s faith: a belief in rules as arbitrary impositions of power—reflecting nothing (not even the will or standing of their makers) but the flat surface of their locutionary meaning—to which we must nevertheless submit; and a belief in rules, zealously enforced, as the divining rod of our ineradicable inequality. Those who make it past these blank and barren gods are winners; everyone else is a loser.


Act Three: Affirmative Action Baby

Scalia preys on and profits from the very culture of liberalism he claims to abhor: the toleration of opposing views, the generous allowances for other people’s failings, the “benevolent compassion” he derides in his golf course dissent. Should his colleagues ever force him to abide by the same rules of liberal civility, or treat him as he treats them, who knows what might happen? Indeed, as two close observers of the Court have noted—in an article aptly titled “Don’t Poke Scalia!”—whenever advocates before the bench subject him to the gentlest of gibes, he is quickly rattled and thrown off his game. Prone to tantrums, coddled by a different set of rules: now that’s an affirmative action baby.

{ 169 comments }

1

steven johnson 02.14.16 at 2:08 pm

Isn’t Cass Sunstein’s obituary of Scalia a hint that he would be a good replacement?

2

Rich Puchalsky 02.14.16 at 2:09 pm

I’ll comment here with my vague memory of the time Scalia directly impacted what I do (sorry, I can’t be bothered to look up the case).

There’s a U.S. database called the Toxic Release Inventory to which large U.S. polluters are required to report their pollution. When Congress wrote the law creating it, they added a citizen suit provision — anyone could file a civil action against a polluter for failing to report. This was intended to encourage compliance.

In 1998, Scalia’s decision in Steel Company v. Citizens for a Better Environment made it impossible for all such civil actions to go forwards. He wrote that citizen’s group had no standing to sue because there was no “redressability”: there was no money paid to the plaintiff. Instead, all that the group suing got was “psychic satisfaction”, which was not a valid form of redress. Therefore they couldn’t sue in the first place.

I found a good number of polluters that probably weren’t reporting their pollution, based on comparisons with their other known data. For all I know, they still aren’t. This was, I thought, a classic Scalia decision: public, community values completely devalued, and only money counts.

3

MikeN 02.14.16 at 3:17 pm

This from the “Not the Nine O’clock News ” comes to mind (couldn’t find one without the Finnish (?) subtitles)

http://www.videobash.com/video_show/not-the-nine-o-clock-news-politicians-637987

4

anonymousse 02.14.16 at 3:46 pm

“Sandra Day O’Connor was the frequent object of his taunts. Hardly an opinion of hers would go by without Scalia calling it—and by implication, her—stupid. “Oh, that’s just Nino,” she’d sigh helplessly in response. Even Clarence Thomas was forced to note drily, “He loves killing unarmed animals.””

Yes, she really is unarmed, isn’t she…

anonymousse

5

LFC 02.14.16 at 3:58 pm

I glanced quickly through the linked Sunstein piece. He obvs. had a friendship w Scalia going back some time; he does mention that he often disagreed w him. I think it unlikely, btw, that any legal academic wd publicly call Scalia what Corey calls him in the OP here, even if they think that privately.

A couple of notes re Scalia’s “duresse oblige”:
(1) the quote appears on p. 132 of The Reactionary Mind and in an endnote Corey credits the quote to Mark Tushnet’s A Court Divided (Norton, 2005), p.149. Tushnet, who taught at Georgetown for many years, is now, like Sunstein, at Harvard Law School, which I guess just goes to show there’s a range of views among the faculty, prob. as at a lot of other law schools.
(2) there are various ways to say ‘hardness’ or ‘toughness’ in French, but ‘duresse’ isn’t one of them, acc. to my dictionary, so Scalia was using ‘franglais’. The first option given (if one wants to use French as opposed to ‘franglais’) is dureté.

6

Bruce Wilder 02.14.16 at 3:59 pm

steven johnson: Isn’t Cass Sunstein’s obituary of Scalia a hint that he would be a good replacement?

Where “good” means potentially capable of being confirmed in the current calendar year. Yes, I would think Sunstein might have tweeted: “I’m rested, I’m tanned, I’m ready” and been less obvious.

7

LFC 02.14.16 at 4:14 pm

@B Wilder (and s. johnson):
Sunstein must know that if Obama nominates him the Repub Senate will never confirm him, even if he (Sunstein) were to write encomiums to Scalia until he turned blue in the face. (He was a member of Obama’s admin, after all.)

All you have to do is a five-second skim of that Sunstein piece to realize they were actually friends: Scalia befriended Sunstein when he was a new law prof at U Chicago. To read that piece as simply “ooh ooh put me on the Supreme Court” seems to me not only a little uncharitable but also, frankly, stupid.

8

Trivial 02.14.16 at 4:35 pm

Any Sunstein nomination hearings should trace the multifarious applications of “silence” and “meaningful silence” across his publication and pedagogical history. Despite “beyond groupthink” and an overt nudge for liberty, I’ve noted (to students) that critical assessments of “silence” should take into consideration the possibility of changes and continuities in Suntein notions of “[good?] governance” and jurisdictional apparatus for “constitutional law,” political or otherwise.

9

steven johnson 02.14.16 at 4:36 pm

LFC@ 6 “One of the most important justices ever, a defender of the Rule of Law, and a truly wonderful person.”

And you want to talk to me about uncharitable and stupid?

10

Cranky Observer 02.14.16 at 4:44 pm

Much as I disagreed with the majority of Scalia’s decisions and despised his ethics (“quack quack”), I can’t help but wonder if Obama’s nominee(s) will be pre-vetted by the three letter agencies for willingness to ignore the 4th Amendment and similar Constitution protections on privacy and civil liberties when faced with “national security” [sic] cases.

11

Bruce Wilder 02.14.16 at 4:57 pm

That Sunstein would make friends with Scalia just confirms my already low opinion of Sunstein.

I know some Democrats will entertain themselves over the next few days with the fantasy that Obama the good Democratic strategist will see a late opportunity to turn Republican intransigence against them, will nominate some willing martyr, and the Senate Republicans will bring themselves into disrepute blocking the appointment, all to good effect on the elections in November. It is also possible that he will choose to appoint someone (possibly from his Administration) that Republicans in the Senate would feel was acceptable, and Democrats will be reluctant to oppose for fear of a breach with the President and his loyal fanbase.

I recognize that Obama is a complex figure, but my interlocuters on politics frequently put me in the position of reminding them that he has frequently been no friend to the cause of either the Democratic Party or of genuinely liberal causes and personnel.

12

BBA 02.14.16 at 5:04 pm

Let me damn Scalia with the absolute faintest of praise: he wasn’t as bad as James Clark McReynolds.

13

RNB 02.14.16 at 5:08 pm

I remember reading Erwin Chemerinsky last year or two years ago on how vitriolic Scalia had become.Was there ever any discussion of whether Scalia was becoming increasingly uninhibited and and why, if true, that was so?

At any rate, Chemerinsky writes today:

“Antonin Scalia served on the court for almost 30 years and was a consistent conservative vote and a powerful conservative voice. He staunchly opposed abortion rights and affirmative action; limits on campaign spending, gay rights and separation of church and state. His long-term legacy in these, and all areas, will depend on his successor and who fills other likely vacancies on the court over the years to come.”

14

RNB 02.14.16 at 5:13 pm

15

commenterbyday 02.14.16 at 5:14 pm

Scalia was so far to the right that even a moderately right leaning justice would push the court to the left; given the uncertainty of the elections, that may be the optimal thing to do.

16

LFC 02.14.16 at 5:15 pm

Trivial @7
As you prob. know, Senate confirmation hearings for Justices are, for the most part, not like academic seminars (though there have been occasional exceptions), so even if Sunstein is nominated and there are hearings (both unlikely, istm), the kind of inquiry you want is unlikely to occur.

17

RNB 02.14.16 at 5:21 pm

Word is that Obama may go with Sri Srinivasan in part because the Senate already approved him 97-0 for United States Circuit Judge of the United States Court of Appeals for the District of Columbia. He’s probably not the change that Obama’s supporters were counting on him for. But Republican opposition to someone they once supported would make them look ridiculous, and could thus be a powerful factor in the elections. Have no idea how Srinivasan would rule on campaign finance, class action lawsuits, union dues. I would have to guess that he’s center-conservative.

18

LFC 02.14.16 at 5:23 pm

RNB @12
Was there ever any discussion of whether Scalia was becoming increasingly uninhibited and why, if true, that was so?

I’ve seen an occasional reference to this but I haven’t read any real discussion of it. My sense, as one who does not follow SCOTUS closely (as opp. to v. casually), was that he was acerbic and biting in many of his opinions from the start, but his level of vitriol did tend to increase in recent yrs. Whether that was an effect of age, frustration that things weren’t always going his way, or what, I’m not sure.

19

Barry 02.14.16 at 5:53 pm

LFC@ 6 “One of the most important justices ever, a defender of the Rule of Law, and a truly wonderful person.”

steven johnson: “And you want to talk to me about uncharitable and stupid?”

Seconding this. Scalia in, with some excections, was a ‘defender of the Rule of Law’ when it suited him. He was happy to overturn laws which he disliked with one hand while simultaneously castigating SCOUTUS for presuming to overturn laws which he favored. Not in the sense of criticizing legal reasoning, but in the sense of ‘how dare you put yourselves above Congress?’.

In Bush v. Gore he came up with the novel ideas that (a) counting all of the votes was an infringement of the rights of those whose votes had already been counted and (b ) that SCOTUS decisions are not precdents, but are sui generis (in short, ‘IOKIYAAR’).

20

DrDick 02.14.16 at 6:27 pm

Scalia was a pestilential blight upon the court. The country and the world are much, much better off for his absence. I will not pretend any respect for a man who was purely political and evil to his very core.

21

Trivial 02.14.16 at 6:43 pm

LFC@15
*Any Sunstein nomination hearings should* explicitly denoted the likelihood and unlikelihood of the entirety of the nomination and confirmation process. Perhaps I should’ve italicized *any* or *should?* No pun intended. Also, I’m neither a proponent nor opponent of the pundits that espouse “jurisprudential” hearings.

That said, I usually don’t classify Bloomberg View columns as an *academic seminar,* but that’s of course debatable.
http://www.bloombergview.com/articles/2013-04-01/for-the-supreme-court-silence-can-be-golden
http://www.bloombergview.com/articles/2014-12-22/a-salute-to-the-graceful-silence-of-george-w-bush

22

LFC 02.14.16 at 7:32 pm

Just to be clear, this is my view of Sunstein’s tweeted remark about Scalia:

(1) “One of the most important justices ever”
Perhaps a defensible but also an arguable statement (counting his general influence on legal discourse not just SCOTUS outcomes, a factor which CR mentions in The Reactionary Mind chapter).

(2) “a defender of the Rule of Law”
Very problematic statement for a bunch of reasons. I would not say this of Scalia. My sense is that a lot of what he did in his opinions was about defending a particular view of society and particular political views, not about ‘the rule of law’ in any generally recognized sense of that phrase.

(3) “a truly wonderful person”
As CR points out, in his opinions he was often cutting and insulting of his colleagues, who usu. did not respond in kind. Beyond that, I have no real basis for judging this statement except scattered bits of second-hand info.

23

PatinIowa 02.14.16 at 7:47 pm

Actually, Scalia, was literally an affirmative action baby.

The quota for women at his high school was 0%, as was the quota for women at his university. When he went to Harvard Law, his whiteness and his maleness were powerfully in his favor.

Does anybody here believe that the law firm that hired him out of Harvard would have hired a more qualified woman or minority?

Or that Nixon would have hired a more qualified African American or woman?

People said Scalia was smart. His failure to notice the multitude of times he was given a leg up, without reference to his talents or accomplishments, suggests he was a very stupid person, or that he spent his life in a state of what Aquinas and Augustine called “willful ignorance.”

24

Ebenezer Scrooge 02.14.16 at 8:21 pm

One first-hand Scalia story:
I practice in one of these few fields of law where you cannot infer a person’s politics from their legal predilections. A senior lawyer who had done me some kindnesses died, and I went to his memorial service. I was surprised when Nino Scalia read the eulogy. Surprised both that he was the eulogist, and perhaps surprised by what he said. No snark, nothing inappropriate, not a trace of meanness. (Oh, maybe one. He observed that the funerals of Christians were far less sad than those of non-believers.) He had an enormous personality that filled up a huge room–something that I see very rarely in the law. (Catherine MacKinnon, oddly enough, shared this trait.)
That being said, I should also mention that Dante’s innermost circles of hell were cold, just like the Eastern Seaboard the day that Antonin Scalia died.

25

Brett 02.14.16 at 8:27 pm

Good riddance. If there is a god, then Scalia dying before he got the chance to gut Roe (as he has longed to do for three decades) is punishment enough.

Mind you, it could get worse. Scalia was a nasty conservative, but there are worse conservative judges out there who would make appalling Justices if put on the Supreme Court bench. Democrats need to win the Senate and Presidency back this fall, and then immediately appoint judges after inauguration day before the 2018 mid-term elections (which will favor Republicans again).

26

Molly 02.14.16 at 9:37 pm

RNB@16: since when did the Republicans mind looking ridiculous?
LFC@17: regarding Scalia’s increasing aggression, I wonder how much his so-called Christian upbringing had set him up to be a scold. Early indoctrination in guilt, in a rigorous division of the world into good and bad people, in purity vs. persecution for badness, can grow into increasingly sadistic outbursts. Melanie Klein contrasted this sadistic, persecutory state with what she called the depressive position, a difficult and mature coming- to- terms with loss and ambiguity that sadistic energies manically avoid.

27

heckblazer 02.14.16 at 9:38 pm

FWIW, here’s Justice Ginsburg on her departed friend:

From our years together at the D.C. Circuit, we were best buddies. We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots—the ‘applesauce’ and ‘argle bargle’—and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh. The press referred to his ‘energetic fervor,’ ‘astringent intellect,’ ‘peppery prose,’ ‘acumen,’ and ‘affability,’ all apt descriptions. He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp.

28

Trivial 02.14.16 at 9:44 pm

In the hyperlinked Bloomberg Review retro above, Sunstein elaborates that “volumes can and will be written about Scalia’s approach to the law. Even those of us who disagreed with him (as I often did, sometimes intensely) owe him an immense debt, because the clarity and power of his arguments forced us to do better.” He also provides examples of Scalia’s rule of law as a law of rules, an “approach” explicated by Scalia himself in a 1989 issue of an *academic* journal: http://cyber.law.harvard.edu/bridge/Philosophy/rollor.txt.htm

29

Trivial 02.14.16 at 9:50 pm

Typo: Bloomberg View

30

Glen Tomkins 02.14.16 at 10:09 pm

Two thoughts about the public mourning for the passing of Scalia.

The first is Twain’s quip that three things can acquire respectability just by surviving long enough; prostitutes, public buildings and politicians. So, sure, Scalia achieved respectability. He’s welcome to it.

The second is what Swift wrote about the Duke of Marlborough on the occasion of his death. No tears for Scalia now, on his death, because “he had those honors in his day”, from all of his victims.

Oh, okay, three things. As National Lampoon’s headline put it, “Franco Dies. Goes Straight to Hell.”

31

Rich Puchalsky 02.14.16 at 11:04 pm

The personal scorn and praise of Scalia in the comments above in misdirected. What matters is how he did his job: he was a bad judge. The reason why so many people care about him is because he was an unelected politician with great power and a lifetime appointment. As such, the fact that we had to care about him shows what a horrible system of government we have. It’s not worth defending and it should fall.

32

TM 02.14.16 at 11:45 pm

I just read that Scalia was confirmed unanimously. Blaming this on a “horrible system of government” is a start but what exactly explains that in this system, right-wing extremists are routinely confirmed as high court judges, with the consent of the Senate Democrats?

33

Dean C. Rowan 02.15.16 at 12:09 am

On becoming increasingly uninhibited, consider Posner’s 1995 book Aging & Old Age, on p.9 of which he writes, “I argue, for example, that old people are (on average–always an important qualification in dealing with large and amorphous social aggregates such as ‘the elderly’) worse listeners and less considerate speakers than young people. The old invest less in the creation of human capital and therefore have less to gain from receiving inputs of information from other people.” It would seem a SCOTUS Justice would be a remote outlier of the population in this respect, but you know, if the shoe fits…

34

Trivial 02.15.16 at 12:12 am

For a 2002 “Critique” of Scalia’s essay on the rule of law as a law of rules, read: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=303575

35

Tabasco 02.15.16 at 1:24 am

I just read that Scalia was confirmed unanimously.

That was in the 1980s. Would not happen today. And, even back then, Robert Bork was rejected by the Dem Senate.

36

LFC 02.15.16 at 1:45 am

@TM
What Tabasco said. Also, Robert Barnes’s obit for Scalia in WaPo (which I picked up in hard copy) mentions the specific context: Reagan decided to elevate Rehnquist to the chief justiceship vacated by Burger, and there were “contentious” (Barnes’s word) hearings over Rehnquist’s elevation; so the Scalia nomination came on the heels of one contested set of hearings and Senators may not have been in a mood for two in a row. But, more fundamentally, the Bork nomination marked the final, prob. irreversible politicization of the whole nomination process. Another Scalia cd never be nominated today w/o a major fight and largely partisan confirmation vote.

37

Rich Puchalsky 02.15.16 at 2:21 am

People should think about what it means that a so clearly political process leads to a lifetime, non-removable (in practice) appointment of someone. We might as well be living in a colony with governors appointed by a distant monarch. Think about how ridiculous it is that the appointment of a SC judge is a political act that can never be undone and therefore everyone thinks that the next Presidential term, whichever it is, is super-important because the President will get to appoint judges and they control our laws.

38

Bruce Wilder 02.15.16 at 2:34 am

Yeah, Rich, because societies without a functioning government or the rule of law have represented the few instances in history of paradise on earth.

I do not understand what rabbit you think can be pulled out of this hat?

Yes, conjuring a politics where we at least pretend to contend over general principles instead of simply seizing thru violence whatever we want in the moment is important.

39

Tom Hutchinson 02.15.16 at 3:06 am

Scalia: “The body of scientific evidence supporting creation science is as strong as that supporting evolution. In fact, it may be stronger…. The evidence for evolution is far less compelling than we have been led to believe. Evolution is not a scientific fact, since it cannot actually be observed in a laboratory. Rather, evolution is merely a scientific theory or guess…. It is a very bad guess at that. The scientific problems with evolution are so serious that it could accurately be termed a myth.”

40

Alan White 02.15.16 at 4:22 am

TH @ 40–

Disqualifies Scalia as the so-called “intellectual giant” of the right he’s dubbed–except by what qualifies as such by so.

41

heckblazer 02.15.16 at 4:42 am

PatinIowa @ 23:
“Does anybody here believe that the law firm that hired him out of Harvard would have hired a more qualified woman or minority?”

I do, but only because the firm that hired him, Jones Day, had a strict anti-nepotism rule and had already hired a woman associate the year before. Jones Day was breaking new ground there, however, so as a general characterization of the legal job market of the time your point stands.

Also, back then being Catholic (or Jewish, for that matter) could still be a big disability in getting hired as an associate, though not nearly as much as being black or female. Again, not criticism so much as grounds on which Scalia could rationalize things to himself.

42

PatinIowa 02.15.16 at 5:07 am

Heckblazer @ 42: Good for them.

More context is always good. Thanks.

43

Trivial 02.15.16 at 5:31 am

In 2009, Scalia apparently didn’t “have any complaint about the quality of counsel, except maybe we’re wasting some of our best minds.”
http://www.c-span.org/video/?286079-1/supreme-court-justice-scalia

Ashby Jones (WSJ) described this interview as a “priceless nugget” and “gem.”

44

otpup 02.15.16 at 5:33 am

@38, Yes, Rich, I agree. Or as Robert Dahl points out, a life time elected SC judge(and I don’t think legislative review actually is that common in other democracies) basically means that the present generation is held hostage to arbitrary views forged decades in the past without any more contemporary democratic correction.

45

geo 02.15.16 at 6:09 am

Rich @32: what a horrible system of government we have … it should fall.

Agreed. What’s the plan?

46

heckblazer 02.15.16 at 6:19 am

0tpup @45:

That’s a lifetime appointment combined with modern lifespans. Before 1970 the average justice term was 14.9 years, with a vacancy occurring on average every 1.91 years. Now the average term is 25.6 years with a vacancy occurring on average every 3.75 years. If Scalia’s term had followed the pre-1970 average he would have retired around 2000. If Thomas lives as long as Scalia he’ll be a justice until 2028.

Source for term lengths, which also proposes an amendment giving justices 18 years terms timed so a seat opens every two years.

47

John Quiggin 02.15.16 at 7:40 am

A minor point, clear from the title and argument of Corey’s book, but not spelt out in the post. Scalia’s originalism is not a conservative, but a reactionary doctrine. He’s eager to overturn longstanding precedents to confirm with his imagined version of the origins of the constitution.

As Corey says, that’s characteristic of just about everyone described as conservatives. They don’t seek to conserve what exists, but to push back to an imagined past, in which people like them got their way much more.

48

Peter T 02.15.16 at 9:05 am

JQ @ 48

“push back to an imagined past, in which people like them got their way much more.’ True, except that a past in which they got their way much more was not (and is not) imaginary but all too real.

49

casmilus 02.15.16 at 11:17 am

“It is a conservatism of invention and choice, informed by the very spirit of rebellion he so plainly loathes—or thinks he loathes—in the culture at large.”

That’s true of pretty much every “conservative commentator” of the past few decades, from Rod Dreher to Roger Scruton.

50

Hey Skipper 02.15.16 at 11:50 am

I can’t help but note that with all this virulent criticism of Scalia, no one has quoted any of his opinions that show how horrible he is.

Following the links at the top was no help.

Diva, in asserting Scalia ranted from the bench, links to an NYT article which doesn’t contain any rants.

American Nietzsche is simply puzzling. Except for those who believe there should be no limit to government power, it is merely common sense that using the ADA to determine the rules for a sport is grotesque. Nor, in criticizing Scalia as being hypocritical about textualism, you ignore textualism’s essential companion, originalism. Did the authors of the ADA, and the legislators who voted to pass it, intend that it be used to compel sports to change their rules?

Affirmative Action Baby is no help at all. Not a single useful quote. Apparently, Justice O’Conner was a frequent target of his ridicule. But without any quotes, it is impossible to know to what extent O’Conner deserved it. Scalia said one of her arguments was devoid of content. Well, was it?

For instance, Citizens United is a bete noir around here. What did he say in his opinion that was so wrong, and why?

51

Rich Puchalsky 02.15.16 at 12:48 pm

“I can’t help but note that with all this virulent criticism of Scalia, no one has quoted any of his opinions that show how horrible he is.”

I listed a particular case up at comment #2, and gave particular real-world consequences.

Bruce and geo, there are various possible outcomes, none of which have much to do with what my plans are. One of the most likely is that we end up with another state. Given that essentially none of the state constitutions / setups made in the several centuries since ours followed our model, I doubt that the particular ridiculousness of our system will be preserved.

But people should recognize that holding on to our system because the only imagined alternative is Mad Max is lesser evilism writ large — it’s Hobbesian, basically, and the final result is that any autocrat is better than the alternative.

52

Corey Robin 02.15.16 at 1:25 pm

Hey Skipper —

“no one has quoted any of his opinions that show how horrible he is. Following the links at the top was no help.”

That’s odd. If you follow the links you’ll see a lengthy analysis of a Scalia opinion. One I deliberately chose because it’s not so well known. But if you’re looking for the more obvious ones for evidence of the man’s ugliness, see what he wrote in his dissent in Lawrence v. Texas.

“Nor, in criticizing Scalia as being hypocritical about textualism, you ignore textualism’s essential companion, originalism. Did the authors of the ADA, and the legislators who voted to pass it, intend that it be used to compel sports to change their rules?”

That’s the wrong question to ask. Scalia is rather famous for defining originalism as being concerned NOT with the intentions of the authors of the Constitution or a legislative statute (or its legislative backers) but in the language of the Constitution or the statute in question. You’re supposed to focus on the text itself rather than the writer(s) of the text or the voters upon the text.

53

Scott P. 02.15.16 at 4:11 pm

“I just read that Scalia was confirmed unanimously. Blaming this on a “horrible system of government” is a start but what exactly explains that in this system, right-wing extremists are routinely confirmed as high court judges, with the consent of the Senate Democrats?”

He was qualified, and Presidents have a right to have their nominees on the Court. I’m a Democrat, and I would have voted for him, even in retrospect.

54

TM 02.15.16 at 4:52 pm

45: “I don’t think legislative review actually is that common in other democracies”

It is common, actually (the UK is more the exception I think). It would be interesting to talk about why no other country with an institution comparable to the Supreme Court seems to have developed anything comparable to the hyper-political American appointment process. Is this due to institutional safeguards or a different political culture? I know there is no chance of institutional change in the US any time soon but still I would have thought that American observers appalled by political dysfunction at home might be curious how things are done elsewhere.

55

TM 02.15.16 at 5:02 pm

Scot 54: “Presidents have a right to have their nominees on the Court”

They have the right (and duty) to nominate nominees. They don’t have a right to have them confirmed, they don’t have the right to have particular nominees confirmed and they certainly don’t have the right to have a nominee on the court who is a dangerous extremist. That this isn’t obvious to everybody is truly depressing.

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yastreblyansky 02.15.16 at 6:35 pm

Sunstein also said, to Totenberg, “He was a hysteric in cases he cared about most,” so the nil nisi bonum didn’t entirely stop him from being truthful. Just saying, as they say.

57

LFC 02.15.16 at 7:20 pm

Scott P. @54:
It has been explained twice — by Tabasco @36 and by me @37 — that certainly since the Bork nomination, SCOTUS nominees are no longer confirmed “routinely” and unanimously. Thus I don’t understand why you (Scott P.) repeat the premise of TM’s question @33 as if that premise is correct. It is not.

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TM 02.15.16 at 9:13 pm

Well my premise was that “right-wing extremists are routinely confirmed as high court judges, with the consent of the Senate Democrats”, and one counter example doesn’t render it wrong. There are zero examples of left wing extremists on the bench, versus several right wing extremists. And it is still worth asking why Dems have let this happen.

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Cranky Observer 02.15.16 at 9:26 pm

“and they certainly don’t have the right to have a nominee on the court who is a dangerous extremist. “

John Roberts was at the time of his nomination clearly a dangerous extremist, groomed by the Federalist Society to do exactly what he has done since elevation, yet he was confirmed by the Senate 78-22.

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TM 02.15.16 at 9:38 pm

That’s what I’m saying.

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Rich Puchalsky 02.15.16 at 9:42 pm

“it is still worth asking why Dems have let this happen”

The Democratic Party is dominated by neoliberals. Therefore they will try to protect people against accidents of birth except those having to do with how much money your parents had. A right-winger who is opposed to abortion might think that the Court has a good number of “left wing extremists” because they tepidly defend legal abortions and because they once acted against legalized racism. But of course the court has no left wing extremists in anything relating to economic issues.

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Watson Ladd 02.15.16 at 10:10 pm

Corey, the price for saying that Lawrence v. Texas was correct is that the Constitution was interpreted wrong for 200 years, including in Browers v. Hardwick. There are various ways in which one might try to justify this outcome, but if you accept that the Constitution has a meaning and that this meaning shouldn’t change based on political whims, then you have some work to do. I think there are answers to this charge, but there certainly is an issue here that Scalia points to. Ultimately of course states did decriminalize homosexuality beginning in the decades before Browers v. Hardwick, just as abortion began to become legal before Roe v. Wade in some states. Had the democratic process functioned, perhaps there would not have been a backlash against Roe.

Rich, nothing stops Congress from raising the inheritance tax, or treading dividends as ordinary income again, or raising top marginal rates. No judge mandated that New Jersey keep the death penalty when it was abolished. Congress was capable of repealing DOMA for as long as Obama was playing games with standing for political reasons. The reliance of the American left on the Supreme Court is a sign of its impotence. Scalia was opposed to the Supreme Court becoming a politicized superlegislature.

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Peter T 02.16.16 at 12:33 am

“Scalia was opposed to the Supreme Court becoming a politicized superlegislature.”

That Watson can write this without thinking of Bush vs Gore confirms all I ever thought about him.

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Hey Skipper 02.16.16 at 1:45 am

[Hey Skipper:] I can’t help but note that with all this virulent criticism of Scalia, no one has quoted any of his opinions that show how horrible he is.”

[Rich Pulasky;] I listed a particular case up at comment #2, and gave particular real-world consequences.

You didn’t quote Scalia, you told us what you thought of his opinion. Therefore, I have no idea what, precisely, his opinion was, and why, precisely you find it so horrible. Worse, I have no idea to what degree his opinion was an insult to SCOTUS’s role — did he make profound mistakes with respect to precedence, constitutional law, what?

I get you don’t like his opinion. But with regard to his role as a Supreme Court justice, that is irrelevant. What I’m not seeing, and you didn’t provide, is how his reasoning failed. Was he factually wrong? Did he get a major element of the law wrong? Did he ignore precedent?

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Hey Skipper 02.16.16 at 2:07 am

[Hey Skipper:] “no one has quoted any of his opinions that show how horrible he is. Following the links at the top was no help.”

[Corey Robin:] That’s odd. If you follow the links you’ll see a lengthy analysis of a Scalia opinion.

I found an analysis. What I did not find was a single word from the opinion itself. I know what you think of what he said, but I can’t compare that to what he said.

But if you’re looking for the more obvious ones for evidence of the man’s ugliness, see what he wrote in his dissent in Lawrence v. Texas.

As it happens, I have read his dissent, recently. What I missed in your writing about him, and your comment here, is exactly what he wrote, and why it is so ugly.

In other words, you have made an assertion without justification — you expect me to believe you on account of your say so.

As it happens, I agreed with the outcome of Lawrence (in the sense that I emotionally agreed), but I found Scalia’s opinion extremely difficult to challenge. So, despite that, I find assertions that his dissent showed him to be an ugly person extremely unpersuasive. And that is an impression that isn’t alleviated by the utter absence of an explicit analysis of what he said, and why it was so ugly.

[The ADA’s drafters’ intent is] the wrong question to ask. Scalia is rather famous for defining originalism as being concerned NOT with the intentions of the authors of the Constitution or a legislative statute (or its legislative backers) but in the language of the Constitution or the statute in question.

No, it is exactly the right question to ask. From NPR:

The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.

That is as clear as it can possibly be that textualism and originalism are complementary. Text and intent are both essential. Is there any indication that the ADA’s drafters’ intent was to change the rules of a professional sport? If there isn’t, then upon what legal justification may the Supreme Court create that result?

Your assertion is at odds with his words. Why should I prefer your assertion?

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Bruce Wilder 02.16.16 at 2:09 am

Watson Ladd: . . . if you accept that the Constitution has a meaning and that this meaning shouldn’t change based on political whims, then you have some work to do.

Many people seem to have difficulty in wrapping their heads around out how the legal commitment to a (written) constitution is supposed to work as a political coordinating device.

Constitutions have various kinds of passages. Some of them attempt to outline administrative or procedural mechanisms, others set out simple rules, and still others enunciate broad principles in expansive language.

The 14th Amendment, as an example, declares: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Not Scalia’s favorite passage, but also not one with a secret clause declaring the public meaning of those words to be a fossil buried under in cemetery with the tombstone labeled, 1867. Aside from Gore v Bush, I’m not sure Scalia ever found an application for the equal protection clause, and he didn’t want that one to be a precedent.

Scalia wanted a dead Constitution; we can be thankful for a dead Scalia and a living Constitution. The public meaning of some clauses in the Constitution — some of the most important clauses — were deliberately written to adapt to the times. The critical context that matters to determining their meaning is always the present — the ever-changing present.

Unless, every generation is prepared somehow to write a new Constitution with the regularity we elect Presidents, we are going to have to accept that this interpretative adaptability is an advantage not a handicap. We didn’t have to write a new Constitution when someone invented the telegraph, radio or the internet. We didn’t have write a new Constitution when we were ready to acknowledge the full humanity in law of Catholics, African-Americans, women, or gays. OK, scratch that: recognizing the full humanity of African-Americans — at least one of several times around in that continuing process — did require amendments to the Constitution. Also, a great civil war in which one-tenth of the white men of military age in the recalcitrant section of the country had to be killed, to make the point.

The protracted processes of political and social changes by which African-Americans later achieved full civil rights in law and a degree of acceptance and integration in the mainstream of economic and political life — after a long epoch of social and legal regression — depended upon the language of principle being used in the Constitution, making changes in interpretation possible. Long processes of political organization, movement, protest and education changed the culture, and by changing the culture, changed the practical, public meaning of the Constitution. That process exposed the hypocrisy of “separate but equal” as a convenient lie, to circumvent the text of the Constitution’s civil war amendments. But, it also changed the whole society and culture in a critical ways, in building support for a renewed progressive public meaning of key clauses of the Constitution. Scalia’s dead constitution would have erected an insuperable barrier to those processes of peaceful social change.

Just so, Scalia wanted to throw the dead body of his dead Constitution across the path of gay rights and women’s rights. Scalia’s would be a brittle constitution for a quickly fractured society, which would have to fight civil wars for every social change, or sink into a feudal mire.

Scalia was notably better on those passages of the Constitution, which require fairly specific procedures or procedural standards. Those kinds of mechanisms — such as the right of the accused to confront the witnesses against them — are hoary in their ancient origins, but Scalia was sometimes a stickler in ways that overcame his authoritarian instincts. So, some credit is due. But, his alleged originalism or textualism was usually nothing but bullshit to cover for his worst reactionary impulses.

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Hey Skipper 02.16.16 at 2:11 am

[Watson Ladd:] Ultimately of course states did decriminalize homosexuality beginning in the decades before Browers v. Hardwick, just as abortion began to become legal before Roe v. Wade in some states. Had the democratic process functioned, perhaps there would not have been a backlash against Roe.

Exactly.

That Watson can write this without thinking of Bush vs Gore confirms all I ever thought about him.

IIRC, the gist of Bush v Gore was insisting that the election law in place at the time of the election be followed, because to do otherwise undermines law.

And, IIRC, when all the votes were finally tallied, Bush, in fact, won Florida.

How does this confirm everything you thought about Scalia?

68

LFC 02.16.16 at 2:17 am

I think it’s probably not possible to have a sensible discussion about judicial “extremism” here, plus I am otherwise busy. But FTR my view is that Roberts probably does not qualify as an “extremist” on a relevant scale though he is generally on the Right. Scalia was on the extreme Right of the Court (on most issues), and Alito and Thomas (not that their views are exactly identical by any means) occupy the Right wing of the Court now. I would also note that the left/right dichotomy is a somewhat blunt instrument for analyzing the Court, since not all cases or voting patterns fit into a left/right alignment.

TM seems to think that Senate Dems roll over and play dead when a Repub pres. nominates someone to the Court. Not so. I believe the large majority of Senate Dems voted vs Alito, for ex.; not looking up the exact number. Twenty-two votes vs Roberts, someone who came across as relatively non-extreme in his hearings (prob by design, but anyway), actually proves my point. Which is that before the 1980s, spec. before the Bork nomination and the irreversible politicization of the nomination process, a Roberts wd almost certainly have been confirmed unanimously.

TM’s statement that there are several rt-wing “extremists” on the bench but no left-wing “extremists” is debatable bec. ‘extremism’ is largely a subjective judgment. Roughly (very roughly), Ginsburg, Kagan, and Sotomayor are pretty liberal (‘left’) justices; Alito and Thomas are on the ‘right’. Breyer leans to the Ginsburg group, Roberts to the other group, Kennedy is quite conservative on many things but not on some other issues. In short, the Court is divided, as is the Senate, as is the electorate. In this context I don’t see the point of railing that Senate Dems have rolled over and allowed rt-wing ‘extremists’ to ascend to the Court w/o a fight because, since the Bork nomination, that simply has not happened.

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Bruce Wilder 02.16.16 at 2:20 am

Well you don’t recall correctly, Skipper.

The election law in place at the time was not followed and many legally cast votes were never counted as a result of the U.S. Supreme Court’s intervention. The U.S. Supreme Court ruling ended the recount effort in Florida and there was no further or corrected tally. A newspaper consortium later collected the ballots and showed that a full count would have elected Al Gore.

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LFC 02.16.16 at 2:28 am

@Hey Skipper
You shd read Robert Barnes’ analysis of Scalia’s career in WaPo. It’s very long (I haven’t quite finished it) but indicates e.g. why Bush v. Gore departed from Scalia’s otherwise expressed predilections: namely for a narrow reading of the equal prot. clause (Bush v Gore gave it a broad reading) and for reduced fed. interference in state/local affairs (Bush v Gore was the opposite).

He was gratuitously insulting to O’Connor in at least a couple of opinions and Barnes notes that many thought this had a damaging effect on whatever collegiality betw them might have otherwise existed. O’Connor purported to shrug it off in interviews but that doesn’t mean it didn’t have an impact. He cd have made his pts w.o being insulting but on those and other occasions chose not to.

Scalia’s dissents, especially, *are* often fun to read — because he isn’t constrained by writing for a majority and is thereby ‘liberated’ to say basically whatever he wants. But then you remember you’re reading a Supreme Court opinion that is going into the U.S. Reports for posterity and you wonder “what the ****”. At least that was often my reaction when I read more SCOTUS opinions than I do these days.

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Barry 02.16.16 at 2:35 am

LFC: “But, more fundamentally, the Bork nomination marked the final, prob. irreversible politicization of the whole nomination process. Another Scalia cd never be nominated today w/o a major fight and largely partisan confirmation vote.”

Bullsh*t. Bork was a criminal (‘Saturday Night Massacre’) and was the agent of breaking a deal between the President and Congress. For both of those reasons, the Senate should have rejected him in committee. In fact the committee did state that they considered him unqualified, but that he deserved a full Senate vote. Also note that Nixon was rewarding him for his crimes on behalf of Nixon.

I understand that the right is flexible on procedural issues (‘up and down’ vote when it suits them, record filibusters when it suits them), but please don’t expect the rest of us to swallow long-discredited lies.

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Bruce Wilder 02.16.16 at 2:37 am

LFC: . . . it’s probably not possible to have a sensible discussion about judicial “extremism” here. . . .

Or anywhere really.

Talk about “extremism” is a gambit with no clear valence. The problem ought to be clear enough: a law of principle for the fair resolution of conflict within the bounds of the public interest requires judges of independent reason and integrity. Outright corruption is one risk — tossing aside the rational elaboration and application of principles in pursuit of a pubic or general interest in favor of a completely expedient quid pro quo, a bribe. Another risk is “extremism”: the construction of an elaborate bullshit philosophy that just happens to deliver for certain wealthy and powerful vested interests who will become aware of the usefulness of the said bullshit.

Chief Justice Roberts and Justice Alito are not extremists in personal manner, but they were and are extremists in judicial philosophy. They are changing the law in ways that benefit the rich and powerful corporations and disadvantage the poor and merely middle-class. Roberts wants to close the court house door to the individual and the public interest. Alito has a very clever pet scheme that would extend the Court’s power of judicial review into a judicial delaying veto. Those are things that do not get a lot of attention, because the Democrats do not scrutinize judicial philosophy, or really care all that much, most of them. TM is right: Senate Dems have rolled over and played dead, disabling the ability of liberals to apply pressure for more moderate Republican nominees — it is a basic political asymmetry that has been in place for a while.

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Rich Puchalsky 02.16.16 at 2:44 am

“You didn’t quote Scalia, you told us what you thought of his opinion. Therefore, I have no idea what, precisely, his opinion was, and why, precisely you find it so horrible.”

So read his opinion for yourself. I gave you enough information so that you can find it, if you’re actually interested in what people think rather than trolling.

His opinion took an obvious intent of Congress, written into law (that citizens should be able to file citizen suits of this type) and dismissed it on a legal technicality — if citizens had been able to sue the polluting companies for one dollar, their suits could have gone forwards, but since they were only able to sue to force polluters to report, they didn’t have standing to sue.

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LFC 02.16.16 at 2:44 am

Watson Ladd @63
the price for saying that Lawrence v. Texas was correct is that the Constitution was interpreted wrong for 200 years, including in Bowers v. Hardwick

The majority opinion in Bowers was really not one of the Court’s finer hours, to put it very mildly.

There are various ways in which one might try to justify this outcome, but if you accept that the Constitution has a meaning and that this meaning shouldn’t change based on political whims, then you have some work to do.
It’s not a question of political whims; the interpretation of the Const. does and shd change w an evolving society and changing norms and conditions. This is the notion of the ‘living Constitution’ that Scalia abhorred. He happened to be wrong. If you don’t believe in a living Constitution, it’s not that easy to justify Brown v Bd of Education. If you do believe in a living Constitution, Brown was obvs. correct and way overdue. (I know which side I’m on on that question.)

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LFC 02.16.16 at 2:59 am

Barry @72
Obviously I think Bork shd have been rejected b/c his views really were quite extreme (plus he was an arrogant s.o.b.), quite apart from his actions during the Sat. Night Massacre.

But it is not bullshit to note that the Bork nomination fight raised the political temperature of Sup Ct nominations in general and in that sense marked an increase in ‘politicization’. That is not bullshit; it is an historical reality. I believe left-wing historians wd acknowledge this as much as right-wing ones. To label a historical consensus “bullshit” is in itself an example of bullshit. It is also bullshit to put your head in the sand and pretend that any historical development you may not like never happened. It is absurd — and bullshit — to pretend that a Scalia wd get a unanimous confirmation vote today the way Scalia actually did in 1986. The whole context has changed. That’s all I was saying. I was a making an historical observation, not casting blame or praise. (Look up how many Senate Dems voted for and against Alito. I think that will make the pt. N.b. I wd have voted against him myself.)

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heckblazer 02.16.16 at 3:02 am

Watson Ladd @63:
Seeing as how the backlash against Roe v. Wade was pushed by activists and was not a spontaneous grassroots movement, I’m pretty sure waiting for democratic process wouldn’t have helped.

Seriously. When Roe v. Wade came down being against abortion was mainly a Catholic thing. Evangelical Protestants like the Southern Baptist Convention actually supported the right to an abortion and in turn supported the decision. It took a decade of activism by the likes of Paul Weyrich for that to change. (Also noteworthy, as a result of this change in doctrine they had to fiddle with the translation of Exodus 21:12-27.)

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John Holbo 02.16.16 at 3:10 am

Hey Skipper: “As it happens, I have read his dissent, recently. What I missed in your writing about him, and your comment here, is exactly what he wrote, and why it is so ugly.

In other words, you have made an assertion without justification — you expect me to believe you on account of your say so.”

It obviously doesn’t follow from the fact that you ‘missed’ something in Corey’s post/article that he is making unjustified assertions, much less that he expects you to believe anything on his say so. (We know you, Skipper. Around here no one would expect you to agree that grass is green or the sky is blue, much less on Corey Robin’s say so.)

I think what you are struggling to articulate is the notion of disagreement. You disagree with Corey. That is what you are trying to say. This happens quite a lot in politics and has various causes.

Does this seem a fair? Corey has provided arguments and evidence yet you remain unmoved by them? That’s not the same as him providing nothing.

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RNB 02.16.16 at 3:19 am

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PGD 02.16.16 at 3:34 am

Sunstein is such an ass.

I don’t think the comparison between Scalia and Trump works though. Scalia was a creature of movement ideological conservatism, Trump is taking a hammer to movement ideological conservatism in the name of some kind of right-wing populist nationalism that seems different. (Less committed to libertarian shibboleths, not particularly socially conservative, more nationalist in the ‘xenophobic’ sense).

80

Trivial 02.16.16 at 3:35 am

Several media outlets “deconstructed” the following passages for conflicting “hidden messages,” but I’m more curious about the consequences for sociological theories of jurisprudence (from Roscoe Pound to Lawrence Friedman, etc.) rather than solely Roberts intentionality—only if, of course, the trend continues:

Chief Justice Roberts and his Majority Opinion in King v. Burwell (2015):
“In a democracy, the power to make the law rests with those chosen by the people. Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”

Chief Justice Roberts and his Dissent in Obergefell v. Hodges (2015):
“Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law.”

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LFC 02.16.16 at 3:44 am

Trivial @81
Roberts wd presumably point out that the ACA case (Burwell) was statutory construction whereas Obergefell involved interp. of the Const. (due process and eq. prot. clauses). Two diff things. I’m not sure there’s a big conflict btw those two passages. (N.b. I think Roberts was wrong in Obergefell, but that’s a separate issue.)

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LFC 02.16.16 at 3:49 am

And I’m not sure there are any consequences for sociological theories of jurisprudence (but admittedly that’s not something I know a whole lot about).

Notice that in Burwell, Roberts thought congressional intent was important. That was always anathema to Scalia. But then Roberts has made some awful decisions himself (e.g. in the Voting Rts Act case, just to name one).

83

LFC 02.16.16 at 3:58 am

@PGD
I also think Scalia and Trump are somewhat different, though I prob. would phrase the reasons differently. Btw Scalia wrote lots of opinions, and the dissent in the PGA tour case, though doubtless illuminating, is just one of them. There were no doubt Social Darwinist elements in Scalia’s worldwiew, but I think they may loom larger from the PGA dissent than from his ops as a whole. But I hasten to say I have not done a study of them.

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Alan White 02.16.16 at 4:03 am

LFC @82 I agree overall but his dissent in Dissent in Obergefell v. Hodges seems an overly restrictive interpretation of due process: yes it is a function of individual rights, but certainly it is also plausibly a blanket right applicable to all citizens. Due process without equal protection is not due process at all–it’s open to case interpretation potentially antithetical to any blanket sense of equal protection.

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Trivial 02.16.16 at 4:04 am

LFC@81
Sorry, I’m not implying a conflict (media outlets), hence my ruminations.

In any case, clarification: sociological theories of jurisprudence (running the gamut) address substantive due process (*interp. of the Const.*) and not statutory construction in con law?

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Trivial 02.16.16 at 4:09 am

LFC@82 and 83

So you maintian (strict?) distinctions between the *Living Constitution* and sociology theories of jurisprudence? Again, clarification. I suppose you’re not familiar with the latter, precluding my question. Thanks anyways.

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Tom 02.16.16 at 4:15 am

Just one note about the affirmative action baby thing.

Scalia was an italian-american. He himself hints at the possibility that one of the main reasons he was made justice with unanimous votes was that that vote meant a lot to italian-americans.^1

Note also that he was elected to the Supreme Court in 1986. Mario Cuomo, another italian american, was a possible candidate for the Democratic nomination in 1988, after his famous 1984 speech. So, nominating an italian american to the Court would have helped the Gop with the italian american electorate. Talking about some form of affirmative action with respect to Scalia seems indeed quite appropriate.

1. See around the 11th minute of the Breaking Through episode of the Italian Americans series by PBS. Link here:
http://www.pbs.org/video/2365395548/

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Trivial 02.16.16 at 4:17 am

Typo: sociological theories of jurisprudence

Alan White@85
I’m not prepared to address the dissent and EP in conjunction with his due process interp…I forsee an escalation in that particular discussion. But I do agree that the two are, of course, recurrently bound.

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LFC 02.16.16 at 5:26 am

@ A. White: re Obergefell: I actually never read through the opinions properly so even if it weren’t too late here (which it is), I probably shouldn’t get into it. (I agreed w/ the majority’s result and I think I’ll leave it at that.)

@Trivial: I’d say ‘living Constitution’ (I know it’s kind of a cliché by now but it’ll do for shorthand) is an approach to, or view of, constitutional adjudication (just as originalism and/or textualism is). How this relates to ‘sociological theories of jurisprudence’ I’m not sure; at one time I probably knew what that phrase connoted but if I did, I’ve largely forgotten.

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Trivial 02.16.16 at 5:57 am

91

Trivial 02.16.16 at 5:59 am

Typo: update

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Corey Robin 02.16.16 at 6:15 am

“Hey Skipper” at 66: “I found an analysis. What I did not find was a single word from the opinion itself. I know what you think of what he said, but I can’t compare that to what he said.”

Then you didn’t read very carefully. Here are just a few outtakes from what I wrote. Every time I quote, that is a quote from Scalia’s opinion:

‘Games hold a special valence for Scalia: they are the space where inequality rules. “The very nature of competitive sport is the measurement,” he says, “of unevenly distributed excellence.’

‘ “The year was 2001,” reads the last sentence of Scalia’s dissent, “and ‘everybody was finally equal.’”’

There are a lot more quotes from the opinion in the post, including two lengthy block quotes.

Either you didn’t read the post or you did and you’re saying stuff that is there is not there. Either way: you’re making shit up.

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Corey Robin 02.16.16 at 6:28 am

“Hey Skipper” at 66 (part 2):

“That is as clear as it can possibly be that textualism and originalism are complementary. Text and intent are both essential. Is there any indication that the ADA’s drafters’ intent was to change the rules of a professional sport? If there isn’t, then upon what legal justification may the Supreme Court create that result? Your assertion is at odds with his words. Why should I prefer your assertion?”

You’re as wrong on as wrong can be on this one. First, even if you go by the standard of his NPR interview, what we he says quite clearly there is not that the text means what its authors *intended* it to mean; it means what the words at the time they were adopted meant to people in general: “The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”

Notice there is no reference to the authors of the text or to their intentions. That is quite deliberate on his part.

Anyway, Scalia is rather famous for rejecting an understanding of originalism to mean “original intent.” His interpretation of originalism is what is called “original public meaning.” As he wrote in A Matter of Interpretation, “It is the law that governs, not the intent of the lawgiver.” (17) Same page: “We do not really look for subjective legislative intent.”

Like I said, Scalia is *famous* for his rejection of the notion that originalism means original intent. I could cite you chapter and verse (I just cited you some verse, in fact.) But given that you demand quotations — and then ignore them — I’m not really sure that’s the way to go. You seem impervious to evidence, as far as I can tell.

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Suzanne 02.16.16 at 7:35 am

Scalia was an only child, doted upon not only by his parents but an extended family of uncles and aunts with no children of their own. This in a culture where sons are already placed on pedestals:

http://www.theguardian.com/world/2002/may/14/gender.uk

In his own words, “I was spoiled.” This explains a fair amount about the late Justice, I think. And the spoiling never really stopped, it seems.

We may thank him for his candor, which seemed to increase as he aged. I imagine all the gay people getting married unhinged him a bit. I don’t think in earlier years he would have been so candid about his belief that black students are backward (?)

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Watson Ladd 02.16.16 at 7:36 am

Bruce, explain to me how the Test clause and First Amendment did not already recognize the full humanity of Catholics. One can easily be an originalist about the 14th amendment and conclude that the Civil Rights Cases and Crookshanks were wrong. Likewise, while we didn’t get a new 4th amendment when telephones came into being, that telephone wiretapping is a search is fairly firmly established. But there is a statutory element to that scheme, namely the Wiretap act, which imposes restrictions that the courts have not.

I’m not saying that originalism is wrong. But I am saying that Justice Kennedy’s sweet mystery of fanny all is no basis for a system of ascertaining what the constitution should mean, and that the democratic process is more than capable of enacting the social changes that some commentators seem to reserve to the Supreme Court.

96

Sebastian H 02.16.16 at 9:51 am

I’m curious about the liberal theories of jurisprudence. A theory of jurisprudence should at least sometimes lead to conflict between your policy preference and what the law already says (unless you think the law as written is already perfect in every way). But the theories of equal protection seem so wide as to mandate almost any outcome. What limits do liberal theories of jurisprudence put on justices? If they allow essentially any political preference to be instantiated why do we need court interpreters? Why not just let congress do it?

97

TM 02.16.16 at 12:13 pm

SH: Why wouldn’t you just agree with the theory that the US constitution is biased towards keeping the government out of people’s private lives unless there is a compelling reason for interference? The constitution admittedly doesn’t say this explicitly (many other constitutions have explicit clauses to that effect) but the interpretation is hardly arbitrary. Virtually everything that the constitution has to say of substance (*) is concerned in one way or other with protecting people’s privacy. Does it really need a specific clause in the constitution to conclude that under this constitution, the government has no business dictating people’s sexual preferences? In other words does the government really have the power to do everything that the constitution doesn’t explicitly forbid? This view of the constitution is totally artificial and few things are more puzzling to me than the spectacle of self-described libertarians arguing that government has the constitutional right to interfere with Americans’ most intimate concerns.

(*) as opposed to those passages that are concerned with the mechanics, as opposed to the content, of government

98

Trivial 02.16.16 at 3:54 pm

Sebastian H @97
I’m uncertain what you refer to as *liberal,* but countless articles and books engage with your question. Also note a resurgence in discussions over “historical jurisprudence:”

http://harvardlawreview.org/2016/02/the-constitution-means-what-the-supreme-court-says-it-means/
https://www.questia.com/library/journal/1P3-1024816981/analytical-jurisprudence-versus-descriptive-sociology
http://www.virginialawreview.org/volumes/content/jurisprudence-history-and-institutional-quality-law

*only if, of course, the trend continues:* occam’s razor his previous statements on the commerce clause and his variety of Catholicism may or may not serve as more pertinent avenues for inquiry.

99

Trivial 02.16.16 at 4:07 pm

Also: per my comments, I’m not as focused on intentionality, but here are two examples of news coverage of the Roberts majority opinion and dissent:
http://thinkprogress.org/justice/2015/06/29/3674897/roberts-obergefell-dissent-conservatives/
http://m.huffpost.com/us/entry/deconstructing-chief-just_b_7746346.html

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Sebastian H 02.16.16 at 4:14 pm

I’m not sure what “engage with your question” means in your links. The first one for example explicitly states that the words of the constitution don’t matter, going so far as to suggest that judges can ignore even clear four corners of the document questions like the age of the President.

That is pure personal policy voting. We don’t need a Supreme Court for pure personal policy voting. We have more democratically accountable branches for that. If that is liberal jurisprudence, it is a great argument to not have a Supreme Court and just let Congress do whatever it wants.

101

The Fool 02.16.16 at 5:27 pm

Cass Sunstein is a shameless ass-kisser

102

Trivial 02.16.16 at 6:00 pm

SebastianH@102
I intended the collected links to comprise a sample of frameworks and opinions for (potential) multifaceted responses to your questions…although the follow-up *pure policy voting* doesn’t denote a question.

103

Sebastian H 02.16.16 at 7:57 pm

My question is: what limits does the document place on the Supreme Court? Your links suggest the answer is none or nearly none. My follow up question if that is the answer is: why should we then let the Supreme Court overrule Congress?

104

Trivial 02.16.16 at 9:01 pm

SebastianH@105
Your reformulated statement didn’t initially denote a question because, again, the collected links provide a sample (if limited) range of possible frameworks for responses.

*The links suggest…none or nearly none:* the Nicola Lacey link, for instance, suggests (for comparative legal systems) that “analytical jurists [to] subject their own methods to a more critical examination, in the light of both sociology and history, and to think again about whether it can possibly make any sense to build formal theories of the ‘momentary’ legal system inde-pendent of the dynamic ‘non-momentary legal system’ which is its temporal, social, and institutional bedrock.”

You may or may not wish to additionally read the “third pillar” essay @91 as well as the following review for comparative perspectives to your revised statement-query:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2569388

105

Hey Skipper 02.17.16 at 2:02 am

[Bruce Wiler @70] Well you don’t recall correctly, Skipper.

… A newspaper consortium later collected the ballots and showed that a full count would have elected Al Gore.

That is not true.

Media organizations subsequently analyzed the ballots, and under the strategy that Al Gore pursued at the beginning of the Florida recount — filing suit to force hand recounts in four predominantly Democratic counties — Bush would have kept his lead, according to the ballot review conducted by the consortium.

More correctly, recounts using various criteria yielded different results. Six of the recounts favored Bush, the rest Gore.

The important thing to keep in mind is that the margin was so small in each case that any decision other than a dead heat was bound to be arbitrary. Unfortunately, dead heat isn’t an acceptable outcome. The SCOTUS decision reflected that: they might as well have tossed nine coins, and awarded the election to the side who won.

106

Hey Skipper 02.17.16 at 2:03 am

[LFC: @71] He was gratuitously insulting to O’Connor in at least a couple of opinions …

In re-reading what I wrote, I think we are using different meanings for “gratuitously”. My dictionary says “without good reason; unjustifiably”, and that was the sense in which I used it: his insults were gratuitous only if his criticism was without merit. To decide whether he was being gratuitous, therefore, would require looking at what O’Connor wrote to determine whether what she wrote deserved the criticism she got.

However, I wouldn’t be surprised if your use of the term is more akin to “unnecessary”. That is, he could have gotten his point across without being insulting. In that regard, I think it a fair cop.

107

Hey Skipper 02.17.16 at 2:03 am

[John Holbo:] It obviously doesn’t follow from the fact that you ‘missed’ something in Corey’s post/article that he is making unjustified assertions …

With regard to Lawrence, we are to agree that Scalia was an ugly human, without a single quote from the opinion substantiating that gratuitous insult. Now, it may well be true, in which case I am wrong about it being gratuitous. But that actually requires making the point, rather than just shouting it.

108

Hey Skipper 02.17.16 at 2:05 am

[Corey Robin @93] “I found an analysis. What I did not find was a single word from the opinion itself. I know what you think of what he said, but I can’t compare that to what he said.”

Apologies for typing in haste. I was referring to Affirmative Action Baby.

With regard to Martin v PGA, according to you Justice Scalia was venting his rage on a handicapped golfer, that he was incensed. But none of your quotes, limited as they are, demonstrate either. And you then draw exactly the wrong conclusion: “… because he was essentially an independent contractor, a category of employee not covered by the ADA. Martin would thus wind up in a legal no man’s land, without any protection from the law.”

He was fully protected by the ADA, where the ADA applied. Scalia made a, to me, persuasive case, that it did not apply to Martin as a competitor. That he was, according to Scalia, outside the scope of the ADA does not amount to being in a “legal no-man’s land”, the ADA simply doesn’t apply to his case.

So, yes, you provided quotes. But they are so sparing that not only do they not support “venting rage” and “incensed”, you completely omitted Scalia’s reasoning as to why none of the three parts of the ADA applied to Martin’s case, and why the ADA could not possibly have come into existence with the scope you insist it has. And by omitting all of his reasoning, you relieved yourself of the burden of demonstrating how he got it wrong, or why in your words, “[the] language of the statute, in other words, compels the Court to inquire into and decide What is Golf.” And that doesn’t even begin to touch the bizarre consequences following from such a conclusion (which Scalia addressed, and you neglected).

Now that I have read Scalia’s dissent, I find your description of it so wide of the mark as to render it completely unrecognizable.

Of course, I could be entirely wrong, and there are plenty of people here who can follow the link to the opinion and set me straight — it will take maybe 8 minutes to read it in its entirety.

109

LFC 02.17.16 at 2:05 am

ZeK @99
Shouting fire in a crowded theater, and all that.

Iirc, this was Holmes’s famous example of a speech act that is not protected by the First Amendment: a person cannot scream “fire” in a crowded theater where there is in fact no fire, and then, when the cops come to arrest him for causing a stampede and riot for no reason except his own twisted amusement, say: “You can’t arrest me b.c First Amendment.”

This is just common sense. What it has to do w Ze K’s ruminations about the govt “skinning people 6 ways from Sunday” is beyond me. Unless Ze K is in favor of disrupting showings of movies as a radical protest against corrupt capitalist Hollywood… and even then it doesn’t make much sense.

110

LFC 02.17.16 at 2:16 am

@Hey Skipper
It’s quite clear that what CR does is take Scalia’s dissent in that case as an indication of Scalia’s deep concern with competition as a measure of “unevenly distributed excellence” (Scalia’s own phrase from the opinion), and by extension his deep concern with winning and losing and with sports, in this instance, as ‘a moment of truth’ that allows “excellence” (in golf or whatever) to find its ‘just’ reward. Let that golfer ride around in a cart and you screw with the order of things in which the strong and the able-bodied and the “excellent” win: that’s the implicit message of the dissent. As a reading of the underlying impulses of that opinion, it seems quite reasonable. It’s separate albeit not completely unrelated to the more immediate, ‘technical’ question of how to read the Am. w Disabilities Act.

111

LFC 02.17.16 at 3:32 am

Before someone charges me w being overly literal w/r/t fire-in-a-crowded-theater, I do recall, albeit vaguely, its connection w ‘the clear and present danger’ test. Possibly this is what Ze K was intending to gesture at.

112

LFC 02.17.16 at 3:56 am

Scalia in the golf dissent:

Because step one of the Court’s two-part inquiry into whether a requested change in a sport will “fundamentally alter [its] nature,” §12182(b)(2)(A)(ii), consists of an utterly unprincipled ontology of sports (pursuant to which the Court is not even sure whether golf’s “essence” requires a 3-inch hole), there is every reason to think that in future cases involving requests for special treatment by would-be athletes the second step of the analysis will be determinative. In resolving that second step–determining whether waiver of the “nonessential” rule will have an impermissible “competitive effect”–by measuring the athletic capacity of the requesting individual, and asking whether the special dispensation would do no more than place him on a par (so to speak) with other competitors, the Court guarantees that future cases of this sort will have to be decided on the basis of individualized factual findings. Which means that future cases of this sort will be numerous, and a rich source of lucrative litigation. One can envision the parents of a Little League player with attention deficit disorder trying to convince a judge that their son’s disability makes it at least 25% more difficult to hit a pitched ball. (If they are successful, the only thing that could prevent a court order giving the kid four strikes would be a judicial determination that, in baseball, three strikes are metaphysically necessary, which is quite absurd.)

The statute, of course, provides no basis for this individualized analysis that is the Court’s last step on a long and misguided journey. The statute seeks to assure that a disabled person’s disability will not deny him equal access to (among other things) competitive sporting events–not that his disability will not deny him an equal chance to win competitive sporting events. The latter is quite impossible, since the very nature of competitive sport is the measurement, by uniform rules, of unevenly distributed excellence. This unequal distribution is precisely what determines the winners and losers–and artificially to “even out” that distribution, by giving one or another player exemption from a rule that emphasizes his particular weakness, is to destroy the game. That is why the “handicaps” that are customary in social games of golf–which, by adding strokes to the scores of the good players and subtracting them from scores of the bad ones, “even out” the varying abilities–are not used in professional golf. In the Court’s world, there is one set of rules that is “fair with respect to the able-bodied” but “individualized” rules, mandated by the ADA, for “talented but disabled athletes.” Ante, at 29. The ADA mandates no such ridiculous thing. Agility, strength, speed, balance, quickness of mind, steadiness of nerves, intensity of concentration–these talents are not evenly distributed. No wild-eyed dreamer has ever suggested that the managing bodies of the competitive sports that test precisely these qualities should try to take account of the uneven distribution of God-given gifts when writing and enforcing the rules of competition. And I have no doubt Congress did not authorize misty-eyed judicial supervision of such a revolution.

The subtext — well, more like an actual text — here is that competitive sports test “the uneven distribution of God-given gifts,” and heaven forbid that the Supreme Court, under the guise of the ADA, should start mucking up this function of competitive sports. Give this golfer a cart and the next thing you know a kid with attention deficit disorder will want four strikes in a Little League game, and the next thing after that will be a major league pitcher wanting a five-ball rule, not a four-ball rule, because he was born with a deformed pinky finger, and who knows where it will end???? Competition, excellence, and the uneven distribution of God-given gifts cannot be made subject to the destructive, foolish whims of nine unelected judges! Competitive sports in the U.S. will be destroyed! Excellence will be trampled into the mud of a fake egalitarianism! Etc.

113

Sebastian H 02.17.16 at 5:13 pm

Trivial, I’m not really sure what you are trying to say with your links. The first one directly lays out the kind of jurisprudence I’m worrying about.

The author argues in favor of a very explicit ethos of not giving a shit what the text says:

His explanation for the “taboo against explicitly ignoring the text” is the least persuasive aspect of Strauss’s article. The issues that Strauss points to as being “settled” are not settled because of a belief by judges in the primacy or importance of constitutional text but because no one has successfully litigated those settlements. The age of the President, the date he leaves office, or the malapportionment of the Senate (which violates the Court’s “one person, one vote” rule for other legislatures absent the express constitutional authorization in Article I) simply have not been challenged by creative lawyers on behalf of injured plaintiffs who have standing to challenge those settlements. If they were, and the Court believed that policy reasons were strong enough, the Justices would in fact ignore the text as they did in the numerous examples Strauss sets forth in his article. If the word “another” can mean the “same,” or if the word “Congress” can mean the “President,” then any and all text is up for grabs if the current stakes are high enough (exactly as Judge Posner describes).”

He then goes on to outline various reasons why that would be better. Unfortunately he doesn’t bother to explore the various reasons why that would be worse. The most obvious being that if we don’t need to pay attention to the text, there is no reason we need to pay attention to the judges.

The other two appear to be sociological descriptions rather than norm descriptions.

If you are attempting to describe norms, it doesn’t make sense to have a norm where the text isn’t important AND have a norm where judges get to overrule legislatures without explaining where they get that power. In a constitutional system they get it from the constitution. In other systems they get it from God or whatever. The problem with the legal postivists is that they undercut the reason we bother with judges overruling legislatures. Taken to the extreme proposed by the author you linked, you just have judges analyzing policy and deciding whatever they think is best. We have a body that does that and is democratically semi-accountable, we don’t need democratically unaccountable people for that.

The legal positivists swim in a culture that respects the Supreme Court BECAUSE the culture respects the constitution. But they think the water is respect for the Supreme Court. If the legal positivists ever successfully get the public to really accept their ideas, the legal positivists won’t be getting a more useful Supreme Court, they will be getting a Supreme Court that nobody respects except as an expression of pure power.

I don’t think that is a good idea, but a huge swath of writing about jurisprudence pushes that direction (both from the Left examples everywhere, and the Right see Strauss for example).

114

TMHe's 02.17.16 at 5:30 pm

114: Scalia basically suggests that ADA compliance is incompatible with “excellence”. His rhetoric is quite clever. Of course ADA doesn’t prevent employers or athletic or other organizations from exacting high standards of excellence, it just demands that disabilities shouldn’t prevent individuals from access to jobs or competitions to which they are otherwise qualified.

115

TM 02.17.16 at 5:32 pm

114: Scalia basically suggests that ADA compliance is incompatible with “excellence”. His rhetoric is quite clever. Of course ADA doesn’t prevent employers or athletic or other organizations from exacting high standards of excellence, it just demands that disabilities shouldn’t prevent individuals from access to jobs or competitions to which they are otherwise qualified.

116

Rich Puchalsky 02.17.16 at 6:02 pm

“The author argues in favor of a very explicit ethos of not giving a shit what the text says”

Well, currently the wealthy can ignore what the courts say, or buy whatever justice they like. So why should we hold to an ethos that says that only the poor have to listen to the courts?

Bruce Wilder upthread writes “onjuring a politics where we at least pretend to contend over general principles instead of simply seizing thru violence whatever we want in the moment is important.” But aren’t we past that point already?

117

Bruce Wilder 02.17.16 at 6:08 pm

. . . aren’t we past that point already?

Yes.

The U.S. is becoming a “Third World country” as we used to say.

118

LFC 02.17.16 at 6:10 pm

Ze K:
As I learned on this very website, this metaphor was used to justify the conviction of anti-draft protesters, during WWI. Clearly political speech, exactly what the first amendment is supposed to protect. Convicted nevertheless.

Yes. But note that Holmes shortly thereafter changed his mind and took a more expansive view of what the First Amendment protects.

The government cannot do whatever it wants: it can’t arrest someone for political speech that does not involve “conduct.” Speech that does involve “conduct” sometimes remains a gray area. But even Scalia was in the majority on a SCOTUS decision that held that flag-burning was protected speech.

119

Trivial 02.17.16 at 9:27 pm

Sebastain H@115

The first one directly lays out the kind of jurisprudence I’m worrying about
*again, the collected links provide a sample (if limited) range of possible frameworks for responses*

The other two appear to be sociological descriptions rather than norm descriptions. If you are attempting to describe norms
I’m attempting to *provide a sample (if limited) range of possible frameworks for responses,* including litigators and jural scholars that examine sociological jurisprudence and distinct, but related, “social [norm] theories” of U.S. law (@91 WM Law). If necessary, I can also provide links to an array of responses and (critical) reviews of Posner’s Overcoming Law as well as Law and Social Norms, in addition to reviews and varied applications of seminal publications such as the Habermasian Between Facts and Norms.

The problem with the legal postivists
Peruse again the (critical) review @106.

120

CJColucci 02.17.16 at 9:31 pm

On this business of “ignoring the text” of the Constitution, most of what has been described as “ignoring” might be better described as “omitting the obvious,” the “obvious” being either that the text has been construed before in A v. B and C v. D, and the live question is how E v. F should be decided given A v. B and C v. D, or the text obviously doesn’t answer the question in E v. F and the court has to, therefore, do something else. This is far more common than instances where the text actually seems to be directly relevant and the Court thumbs its nose at it, as in Hans v. Louisiana, which may have been correctly decided anyway, the contrary text notwithstanding, for legitimate non-textualist reasons.

121

Trivial 02.17.16 at 9:39 pm

SebastianH@115
Caveat: I omitted a comparative discussion of legal norms and social norms (distinct but of course related) because of your particular *problem with the legal postivists.*

122

Sebastian H 02.17.16 at 9:47 pm

Trivial: yes, I’m well aware of the current state of the literature on jurisprudence. I’ve been studying it for 20 years and that is why I’m saying what I’m saying. Two of your links make exactly the point I’m making except they think it is a good thing. The other link claims to survey without making a judgment. Posner’s Overcoming Law makes the point I’m making except he thinks judges are (mostly) restrained by the Supreme Court instead of the text (which he thinks is mostly useless for judges). He doesn’t help much on what if anything he thinks the Supreme Court ought to be restrained by (except he is clear it isn’t the text).

Having read the literature I’m making a point–that if you think legal ‘realism’ is good, or even if you think it is descriptive, you have undercut the reason for having the Supreme Court overrule Congress. Referring me back to the idea that Supreme Court Justices either are purely political creatures, or that it would be fine if they were purely political creatures isn’t responding to my point.

If you don’t like textualism or originalism or some form of strong text based constitutionalism, you either have to provide some other check on the Supreme Court amending the Constitution or you have to come up with some other reason why it gets to overrule Congress. I haven’t seen anything like that in any of the sources you are referring to or in any other of the major liberal works on jurisprudence. Scalia was hypocritical as hell in the way he applied his frame, but at least his frame had some sort of sense to it in a constitutional framework. “Judges we like get to do what we want when we don’t like what Congress did” is a horrible constitutional structure, and it is exactly the kind of stance that has led us to the impasse we are facing.

123

LFC 02.17.16 at 10:39 pm

@SebastianH
some other reason why it [Sup Ct] gets to overrule Congress.

I’m not up on the recent (i.e. last 15 or 20 years) literature on const. jurisprudence, but istm Sebastian’s framing of the issue is perhaps a bit off.

Scalia’s position, or the one he claimed to espouse, was that you look at what the words of the Const and Bill of Rights would have meant to the ordinary person on the street in 1787 and 1791. That at least purports to be a rule of interpretation that prevents a judge/justice from reading his/her own preferences into the text. Without some such approach, Sebastian thinks justices will be free to write their own preferences into the text and thus are no better than Congress (worse, because they’re not elected).

But judges, including Sup Ct justices, in fact *are* constrained in their interpretations even if they don’t adopt a Scalia-like approach. First, they’re constrained by precedent and stare decisis (of the current justices, only Clarence Thomas seems to view stare decisis, at least in certain contexts, as something he doesn’t have to be constrained by). Second, they’re constrained by the institutional setting: the Court is not a superlegislature partly b.c it does not, generally speaking, reach out to solve problems in the way a legislature can but rather waits for issues to be brought to it. The Court is a political institution, but it’s a diff. kind of institution than a legislature and those differences themselves provide some checks on what the Court can do.

Ideally perhaps one of things the Court should do is look out for the interests of minority groups that don’t have a lot of political clout and whose interests are thus liable to be ignored or trampled on by the legislature. (There is a famous footnote in a S. Ct. opinion sometimes cited for this.) This is esp. true of those minority groups that have historically been discriminated against by statute or otherwise. A justice concerned with this sort of consideration will lean toward a kind of interpretation that, in the best case, makes for a healthier political system and one more responsive to a range of reasonable and legitimate claims than it wd otherwise be. The Court, in other words, shd help ensure that the voiceless and powerless are not completely shut out of the political system. I don’t know whether that amts to a ‘liberal theory of jurisprudence,’ but it seems to me a more humane and defensible approach than Scalia’s.

124

Trivial 02.17.16 at 10:47 pm

SebastianH@125

Having read the literature I’m making a point
My point is that I’m neither a litigator nor presently a jural scholar (and hopefully not a pendat).

If you don’t like textualism or originalism or some form of strong text based constitutionalism
My opinion is that I *like* the idea of levels of scrutiny within our *constitutional structure.*

I haven’t seen anything like that in any of the sources you are referring to or in any other of the major liberal works on jurisprudence
Peruse again, for example, the link to the @106 concluding passage. Again, uncertain what you define as *liberal* and classify as *major liberal works on jurisprudence.*

In any event, thanks for your opinions.

125

Trivial 02.17.16 at 10:48 pm

Typo: pedant

126

LFC 02.18.16 at 2:34 am

p.s. some of the substance of my comment @127 was stated, more pithily, by CJColucci @124.

127

TM 02.18.16 at 8:09 am

SH: Interesting that you have nothing to say to 98.

Sclaia the cartoon: http://www.thenation.com/article/rip-scalia/

128

TM 02.18.16 at 1:05 pm

(Regret the typo)

129

Sebastian H 02.18.16 at 4:38 pm

98 didn’t seem to raise much that appeared to me I hadn’t already addressed. But if you insist that I address it again:

” Why wouldn’t you just agree with the theory that the US constitution is biased towards keeping the government out of people’s private lives unless there is a compelling reason for interference?”

I would agree with that statement, but it either has nothing to do with modern jurisprudence whatsoever, or it leans HEAVILY on “compelling reason for interference” to get whatever result you want. And that is the problem. If your theory of jurisprudence always get you whatever your policy preference is, it isn’t a theory of jurisprudence, it is a method of justifying ramming your policy preferences down everyone else’s throats. If the criticism of Scalia is that he sometimes went against the constitution to enact his preferences, that is a valid criticism of his jurisprudence. The problem I have is that he at least has a system of jurisprudence to criticize. What can you say about Kagan or Sotomayer other than “I do or do not like their policy preferences”?

“In other words does the government really have the power to do everything that the constitution doesn’t explicitly forbid? This view of the constitution is totally artificial and few things are more puzzling to me than the spectacle of self-described libertarians arguing that government has the constitutional right to interfere with Americans’ most intimate concerns.”

I would say no the government does not have the power to do everything that the constitution doesn’t explicitly forbid. But read the Harvard law journal piece that Trivial linked. What I think isn’t important. And what the Constitution HAS IN THE WORDS isn’t important either. It is what 5 votes on the Supreme Court say is says even if it contradicts the words. We are literally right at the edge of that point, and arguably have crossed over it a number of times (see Kagan on search and seizure for example). And what makes me craziest is that coming to that point a huge number of the legal profession is just urging it on. Trivial is absolutely right that the law journal piece is typical of legal thought. But that is freaking scary.

The thing that makes Alito and Kagan as scary to me as anyone on the court is it that it is 100% clear that their vote is all about their policy preferences. The Constitution may as well not even exist so far as it influences their votes. Neither of them ever need to write words like “this seems like a bad policy, but it isn’t a Constitutional question” because their jurisprudence is their policy. The most they ever might have to say is “I can’t go as far as I want because I needed more votes”. They are the current trajectory of the Supreme Court and it isn’t a good thing.

The problem with that from a rule of law perspective is that we don’t need life appointed oligarchs to make policy decisions. We elect people to make policy decisions.

I really like the vision of the Supreme Court as a last ditch guardian of the Constitution. I understand that human beings are human. I understand that no one lives up perfectly to an ethos of putting aside your own views and really trying to defend the institution. What scares me is that the ethos of understanding that your policy preferences are different from the Constitution is actively being erased in discussions about how the Supreme Court should function.

What I don’t understand is why people defend the institution of the Supreme Court under that ethos. If that is really the ethos you want on the Supreme Court, why do you want the Supreme Court to have the power to overrule Congress at all? If all it is is another power center, what progressive would defend making it life time appointments of only 9 people who always go to Harvard or Yale?

130

Sebastian H 02.18.16 at 4:43 pm

I also don’t understand the next step of the legal ‘realist’ position (which appears to be at least 2/3 of the modern critical understanding of the Court). If all Constitutional law is ‘about’ is 5 votes on the Supreme Court, on what basis do you criticize a ruling other than “I don’t like the policy outcome”? You literally have undercut your ability to say “the Supreme Court is wrong about the Constitution on this case”.

And if “the policy outcome” is all there is to it, Congress and the Administration are much more legitimate organizations to make fine grained policy decisions.

131

Rich Puchalsky 02.18.16 at 4:47 pm

“And if “the policy outcome” is all there is to it, Congress and the Administration are much more legitimate organizations to make fine grained policy decisions.”

Yes. The Supreme Court effectively depends on “soft power”, in the same way as the U.S. as a whole depended on soft power. If you burn up all of your soft power with imperial adventures, people start to say that there’s no reason to listen to you other than that you have brute force.

132

LFC 02.18.16 at 6:30 pm

@Sebastian H.

Your choice — have a Scalia-like text-based jurisprudence or simply enact your policy preferences — is, I think, a false choice. One can have a jurisprudence based on a certain view of the underlying moral premises of the Constitution; I think, to oversimplify, that is basically Dworkin’s position, though it’s been a v. long time since I read Law’s Empire (which is the only bk of his I read). Dworkin was neither a ‘legal realist’ of the it’s-all-policy-whoever-gets-five-votes school (indeed, he explicitly criticized legal realism of this variety) nor was he a textualist of the Scalia variety. So I think your continued repetition “it’s either straight policy preferences or it’s textualism” is incorrect. You have also ignored the point I made that powerless minorities can expect to seek and get vindication in the courts, in accord w some of the Const’s underlying premises, that they couldn’t get in the legislature.

In addition to Dworkin, I might mention:
Ely, Democracy and Distrust (actually I might have the title wrong, will check later; read a long time ago)
R. Smith, Liberalism and American Constitutional Law (haven’t read)
Tushnet, Red, White, and Blue (basically, iirc, criticizes all the const. jurisprudential approaches, but I don’t remember most of the details)

These are all from quite a while ago. I don’t know where the current scholarship is and debates are; haven’t followed Trivial’s links. But I think there is analysis in these bks to suggest that you may well be posing a false choice.

133

Patrick 02.18.16 at 6:38 pm

The “it’s either textualism or your policy preferences” dichotomy is trivially disproven by the concept of stare decisis, which is neither textualism nor ones policy preferences. And it relies upon and is supported by coherent legal theories about judicial and legal legitimacy, namely, that consistency over time is independently important so as to enable other branches of government to engage in their own duties and rights re changing the law or constitution, demonstrating that principled constitutional interpretation schemas are possible without textualism.

134

LFC 02.18.16 at 6:39 pm

@Sebastian H
In your opinion, and putting aside Clarence Thomas, which of the remaining current Justices — Roberts, Kennedy, Breyer, Kagan, Ginsburg, Sotomayor, Alito — has a “system of jurisprudence” that amounts to something different and/or more principled than “these are my preferences”?

135

LFC 02.18.16 at 6:42 pm

Patrick @137
Largely agree, and I tried to make (some of) the same points @127, which Sebastian ignored.

136

bianca steele 02.18.16 at 6:45 pm

IIRC Bork believed stare decisis should be abandoned.

137

LFC 02.18.16 at 7:01 pm

@bianca s.
Not sure, but I really doubt it. (He might have argued it was generally given too much weight, which is slightly different from saying it shd be abandoned.)

138

LFC 02.18.16 at 7:04 pm

OTOH, after his defeat Bork’s positions in his writings became even more extreme. He said a whole bunch of crazy sh*t in Slouching Towards Gomorrah, or so I gather, so he might have called there for abandoning stare decisis.

139

Plume 02.18.16 at 7:07 pm

I don’t see Scalia or any of the conservative judges following the text of the Constitution in their decisions. They read their ideology into the Constitution, and ignore what it actually says.

Heller, for example, wildly inflates the “right” listed in the Second Amendment. And for two centuries, precedent said it was a collective, not an individual right. All the Second says is that if you’re in a well-regulated militia, you have the right to keep and bear arms. Nothing is mentioned about unlimited consumer choice. Nothing is mentioned about freedom from regulations, restrictions, limits on firepower, capacity, numbers of weapons or bullets. The text itself doesn’t even mention the right to actually use the weapon. It just says keep and bear — if you’re in a well regulated militia.

And Hobby Lobby? That clearly goes against the Equal Protection Clause and the First Amendment. There is nothing in the Constitution that gives a fictional legal entity — the corporation — rights to impose religious views on anyone else. It’s telling that they made their case by ignoring the Constitution and misusing RFRA instead. They’re supposed to settle these questions based on Constitutionality or lack thereof, not by cherry picking laws and abusing them to make the conservative case.

It’s more than obvious that the five (now four) reactionary theocrats on the Court have been practicing “judicial activism” for some time.

Pretty good article on some aspects of the above in Salon today:

Scalia’s replacement

140

Trivial 02.18.16 at 7:45 pm

Patrick@137 and LFC@138
At the risk of redundancy, all of the linked scholarship and (critical) reviews of course address stare decisis, precedent, as well as thirty years of changes and continuities since the first edition of Smith’s Liberalism and American Constitutional Law. The SebastianH abhorrent Eric Segall, for instance, cites Posner in a discussion of the various adjudication “competing theory” methods (linear, intuitive, etc.) for *concept[s]* such as stare decisis that ostensibly challenge *dichotomy:*

“My approach with judging cases is not to worry initially about doctrine [and] precedent . . . [,] but instead, try to figure out, what is a sensible solution to this problem, and then having found what I think is a sensible solution, without worrying about doctrinal details, I ask ‘is this blocked by some kind of authoritative precedent of the Supreme Court?’ If it is not blocked, I say fine, let’s go with the common sense . . . What would the framers of the [Fourth Amendment] have thought about [n]ational security surveillance of people’s emails[?] That is a meaningless question. It is not an interpretive question, it is a creative question. . . . The [Constitution] cannot resolve it . . . by thinking about the intentions, the notes of the constitutional convention, [or] other sources from the 18th century. This seems to be the standard problem for judges . . . . It is not interpretation, it is just trying to find . . . a solution to a question that has not been solved by the legislature.”

LFC@141: NROnline Bork (clarification)-“The obtrusive fact is that constitutional law has never been stable. Precedent counts for less in constitutional law than elsewhere for the very good reason that the legislature can correct the Court’s mistake in interpreting a statute, but the Court is final when it invokes the Constitution and only the Court can correct its own mistakes. For that reason, many justices have made the point that what controls is the Constitution itself, not what the Court has said about it in the past. Cases like Roe, that some will claim must not be disturbed, were themselves repudiations of prior understandings of the Constitution.”

Also, for recapitulation purposes: my point is that I’m neither a litigator nor presently a jural scholar (and hopefully not a pedant) and my opinion is that I *like* the idea of levels of scrutiny within our *constitutional structure.*

141

LFC 02.18.16 at 8:20 pm

Trivial @144
I guess at some point I’ll have to read the Eric Segall thing — your first link @100 — since you have declined to provide a summary of what Segall says and how it meets Sebastian’s points. Instead you’ve repeated that you’re not a litigator or legal scholar — fine; I’m not a litigator or a legal scholar either — and you’ve repeated that you like “levels of scrutiny within our constitutional structure” (which is sufficiently vague that I’m not sure what it means in the particular context of this discussion).

142

LFC 02.18.16 at 8:33 pm

Posner is a federal appeals court judge; he’s describing what his approach to judging in that capacity is w. admirable candor in that excerpt. But it’s not clear that he cd or wd say the same thing if he were a Sup Ct justice.

As a 7th Cir judge, Posner can say: (1) What’s the common-sense solution and (2) is it blocked by authoritative Sup Ct precedent. I guess one cd take the same approach as a Sup Ct justice, but it’s a different job b.c a Sup Ct justice is contributing directly to creating the body of authoritative nat’l precedent in a way that an appellate federal judge isn’t, quite.

143

Trivial 02.18.16 at 9:13 pm

LFC@145: I will provide a summary, if necessary, to explicate *an array of responses and (critical) reviews.* As for *points,* according to SebastianH@126, *two of your links make exactly the point I’m making except they think it is a good thing. The other link claims to survey without making a judgment. Posner’s Overcoming Law makes the point I’m making except he thinks judges are (mostly) restrained by the Supreme Court instead of the text (which he thinks is mostly useless for judges). He doesn’t help much on what if anything he thinks the Supreme Court ought to be restrained by (except he is clear it isn’t the text).* Also, according to SebastianH@133, *Trivial is absolutely right that the law journal piece is typical of legal thought. But that is freaking scary.*
I do decline to comment further on this particular issue.

LFC@147
I guess one cd take the same approach as a Sup Ct justice
Yes.

authoritative nat’l precedent in a way that an appellate federal judge isn’t, quite
I also decline to comment further on that particular point, especially in regards to the more astute facets of your comments @127 and @136.

sufficiently vague that I’m not sure what it means in the particular context
My initial questions concerned comparisons between statutory construction, sociological jurisprudence, and the *Living Constitution.* The recent comments focused on *constitutionalism* and stare decisis. I deem that sufficient contexts for the thread, but welcome criticism.

144

TM 02.19.16 at 10:08 am

SH 133: “it leans HEAVILY on “compelling reason for interference” to get whatever result you want. And that is the problem.”

My goodness. And this from a libertarian. The principle of the Griswold and Lawrence decisions that governments have no business regulating people’s sexual preferences cannot be used to get “whatever result you weant”. It precisely gets you the result of sexual and reproductive autonomy. At the same time, rape is still a crime but that is no contradiction and certainly not arbitrary. Any constitutional law has to contend with the problem that my freedom to swing my fists ends where your nose begins and therefore, legal disputes usually involve the need to balance different interests. You are saying that the law must be a machine that calculates the right answer based on unambiguous instructions. But legal texts are not computer programs and the word “judgment” involves, well, judgment.

I also for the record reject your insinuation that liberals are the ones who are making stuff up when it comes to constitutional jurisprudence. The contrary is true. Liberals have consistently supported fundamental individual rights. Again there is nothing arbitrary in saying that the government shouldn’t regulate people’s consensual sexual behavior. On the other hand, the invention of speech and religious freedom rights for corporations by the extremists on the court is as far removed from letter and intent of the constitution as could be.

What is wrong really with your brand of so-called libertarianism that prefers illiberal dogma to common sense liberalism?

145

Hey Skipper 02.19.16 at 4:22 pm

[Plume @143] Heller, for example, wildly inflates the “right” listed in the Second Amendment. And for two centuries, precedent said it was a collective, not an individual right. All the Second says is that if you’re in a well-regulated militia, you have the right to keep and bear arms.

Have you read Scalia’s opinion? Where did he go wrong?

And you are wrong in stating “All the Second says is that if you’re in a well-regulated militia, you have the right to keep and bear arms.” The prefatory clause does not limit operative clause in any way, and insisting it does tortures grammar to the breaking point.

Moreover, you ignore the philosophical basis of the 2A:

We look to this because it has always been widely understood that the Second Amendment , like the First and Fourth Amendment s, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876) , “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed … .”

Meaningful self defense is an inalienable right.

146

Sebastian H 02.19.16 at 10:32 pm

Stare Decisis isn’t a particularly strong issue for Supreme Court members who want a change. It is of course constantly invoked when they don’t want a change. If it were a real issue you would see Justices writing things like “while it isn’t a great idea, it is well settled so we won’t revisit it” which is something I saw a few times from the conservative justices. (This is in contrast of course with both sides which regularly wrote things along the lines of: our old decision was great, and those who want to change it shouldn’t because of stare decisis). See for example Roper v. Simmons where the Supreme Court overruled its directly on-point precedent in Stanford v. Kentucky (and the general history of the United States) on the issue of the death penalty for 16-18 year olds.

TM, I’m not at all saying that only liberal justices do it. I specifically call out Kagan and Alito as justices who are 100% policy oriented with no obvious need for the Constitution whatsoever. Alito isn’t particularly liberal, to say the least.

I’m saying that the major liberal jurisprudence theories don’t appear to have much interest in consistently caring about what the Constitution says rather than what they can do with it. I used to say that so far as the liberal theories go, the only thing they can’t get through creative judicial interpretation is a change in the minimum age of the president, but Trivial’s links suggest that even that is up for grabs.

I’m not at all suggesting that conservative justices are immune to the lure of the power of amending the Constitution as you like it. I’m saying that according to the liberal theories 5 vote amendments to the Constitution aren’t even a problem. The ethos is that it is perfectly acceptable to just do it if you can grab the votes. That puts them in a rather weird position when they want to criticize votes they don’t like, and that is where their hypocrisy comes in. Conservatives have a similar hypocrisy when they betray their theoretical commitment to the words. The liberal constitutional theories don’t even HAVE a theoretical commitment to the words.

My point is that the majority academic understanding on constitutionalism is some version of ‘legal realism’. Legal realism has a huge problem, in that it completely undercuts the reason why we bother allowing the Supreme Court to overrule Congress.

TM, you are also confusing my libertarian bent on things with my critique of legal realist constitutional theories. I’m not arguing that the government should be intimately involved in anyone’s sex lives. They absolutely should not. I’m arguing that Scalia’s earlier attempts (his last 6-10 years out of the 30 became much more reflexively partisan) to make the actual document central to Constitutional questions was very much a needed corrective to legal realist theories of jurisprudence (which are by far the majority) which come flying completely unhinged from the text.

One of the main problems at this point is that we just don’t amend the Constitution any more. If technology and society has changed so much that a right to bear arms isn’t a good idea, change it. Don’t make up a whole different mode of analysis for 2nd amendment rights that you would freak out over if applied to any other rights. We use the Supreme Court to avoid actually dealing with these problems, but all that has done is turned the control of the Supreme Court into a huge problem.

147

Trivial 02.19.16 at 11:41 pm

SebastianH@152
Stare Decisis isn’t a particularly strong issue for Supreme Court members who want a change. It is of course constantly invoked when they don’t want a change. If it were a real issue you would see Justices writing things like “while it isn’t a great idea, it is well settled so we won’t revisit it”

How would you address “judicial restraint” and “judicial overreach” in explicit stare decisis Supreme Court decisions, such as both the majority and dissenting opinions in last year’s Kimble v. Marvel Entertainment? As you undoubtedly know, although the dissent argued “that Brulotte…was not simply a case of incorrect statutory interpretation… it was not really statutory interpretation at all,” the dissent also held that the majority opinion “employs stare decisis, normally a tool of restraint, to reaffirm a clear case of judicial overreach.”

I specifically call out Kagan and Alito as justices who are 100% policy oriented with no obvious need for the Constitution whatsoever
Please correct me if I’m wrong, but Kagan authored the majority opinion in Kimble. Alto, as I remember, wrote the dissent.

This question aims to clarify the thread debates as well as *my initial questions [that] concerned comparisons between statutory construction, sociological jurisprudence, and the “Living Constitution.” The recent comments focused on “constitutionalism” and stare decisis.*

148

Trivial 02.19.16 at 11:47 pm

SebastianH@152
Typo: Alito
Also: I want to additionally clarify whether your position challenges, supports, or is irrelevant to both opinions.

149

LFC 02.20.16 at 12:03 am

I’m slightly puzzled as to how a practicing lawyer (which I believe Sebastian H is) and, more importantly, someone who knows something about the Supreme Court (which Sebastian H clearly does) can continue to assert, over and over, that the dominant jurisprudential view is some form of legal realism which is flawed because it provides no warrant for the Court to overturn anything the legislature does.

The famous Footnote Four of Carolene Products is one obvious place to look for a principled explanation of why certain kinds of legislative acts, namely those that restrict the political process and/or those that disadvantage minorities, should get heightened judicial scrutiny (as compared, say, to most economic regulation). That’s not ‘legal realism,’ afaik.

See, e.g., this piece:
http://www.newyorker.com/news/news-desk/ruth-bader-ginsburg-and-footnote-four

150

LFC 02.20.16 at 12:07 am

Sebastian specifically “called out” Kagan and Alito but hasn’t explained why he thinks they especially deserve to be to be put in the ‘ignore-text-and-do-policy’ stocks, as opposed to Roberts, Ginsburg, Kennedy, Breyer, and Sotomayor.

151

John Holbo 02.20.16 at 2:16 am

Sebastian: “TM, I’m not at all saying that only liberal justices do it. I specifically call out Kagan and Alito as justices who are 100% policy oriented with no obvious need for the Constitution whatsoever.”

Sebastian and I have been round about this before. What strikes me as odd about our past exchanges – and this %100 assessment reinforces it – is that realism has both a descriptive and a normative aspect. You can be a descriptive realist without being a normative one (and, I suppose, vice versa, though I’ve never seen that in practice.) Sebastian is a staunch descriptive realist and a staunch normative anti-realist. (Much like Scalia himself, who said it was just politics except for himself, who was pure – and Thomas, who was pure, which was nutty in Scalia’s opinion. But that’s a separate issue.) I am a moderate descriptive and normative realistic. I don’t see why you would be a normative anti-realist if you really thought the actual situation was so realistic. Under those circumstances, realism itself – clear-eyed perception of what is – would surely knuckle under and admit defeat, advocating some realist norm.

But I don’t think we’re there. I don’t think that it makes descriptive sense to allege that any Justice is %100 policy oriented. The apparatus of law and the dynamics of the institution forbid it. You can always tell the difference between a legal opinion and piece of legislation and that in itself keeps us way below that %100 ceiling. But, in fairness, maybe Sebastian is being hyperbolic. So let me propose the following pseudoscientific unit of measure: the WoD [William O. Douglas]. A WoD score of 1 indicates maximal realism. I would say that a WoD1 score only corresponds to about 50% naked preference expression, absolutely. That is, even William O. Douglas was only nakedly saying ‘this is good because I want it’ about 50% of the time, max. (Maybe less!) I would say that even William O. Douglas only had a .6 WoD score before 1948. But enough about the good gentleman.

I would say that today’s justices all get less than .5 on the WoD scale. Back of the envelope, I would give Alito a higher score than Sotomayor, but, I confess, I haven’t studied her opinions. Mostly she seems kind of restrained, which is a way to keep your score down. But perhaps she is more partisan than I think. Maybe my partisanship is giving her an undeserved pass. Clarence Thomas, say what you will, seems to try to put his philosophy into practice, so he gets a low score. (Maybe .2, because it’s pretty clear that the selection of his philosophy itself expressed a personal preference. He is an originalist, in part, so he can ignore his colleagues and some precedent, as is his personal wont.) Roberts is pretty clearly concerned with the institution, which keeps his score down. Call him a .2. (No one who voted in the majority in Bush v. Gore gets less than .2, surely.) Scalia, in his later years, was pushing it, WoD-wise. He was kind of like Douglas, after his political hopes were dashed. After Roberts got the Chief Justice nod, and Nino got passed over, there wasn’t any reason for Scalia not to let his freak flag fly, and he did. He was less judicially restrained than is normal, and he lacked the constraints of collegiality – like Douglas, he alienated his colleagues, content just to be the smartest guy in the room, let the chips fall where they may. But I’d still only give him a .6 WoD at his freakiest. He was a judicial activist, but no William O. Douglas, in terms of how he wrote opinions.

What do you think, Sebastian?

152

John Holbo 02.20.16 at 2:22 am

Sorry for sloppy typography. Pseudoscience doesn’t really require typographic accuracy, after all.

153

LFC 02.20.16 at 4:13 am

@JH
Putting W.O. Douglas to the side for the time being (b.c that wd be a whole separate conversation), I have grave doubts about whether this whole exercise makes much sense.

I don’t think any justice now on the Court writes opinions that say “this is good because I want it.” As you imply, that’s not the way judicial opinions are written. (Scalia in dissent prob. sometimes did say, in effect, “this is bad because I don’t like it, and anyway it shd be left to the people and is no business of the Court.”)

Alito is very pro-prosecutor, very unsympathetic to criminal defendants, that’s obvious even to a v. casual observer of the Court (such as me). But that doesn’t nec. mean he’s more “policy oriented” than, say, Breyer, who may have his own particular hobby horses (I don’t know, but it’s certainly possible). Sebastian may have certain cases in mind, but in this thread he has provided no evidence to support his assertion that Kagan and Alito are more “policy-oriented” than their colleagues. No evidence. Zero.

As for Clarence Thomas, one distinguishing feature of his approach to his job is that, with respect to a certain class of cases at any rate, he gives less weight — or less lip-service, if you prefer to put it that way — to precedent and stare decisis than any of his colleagues. If he thinks a line of precedent has no sound basis in the Constitution as he understands it, he often won’t be bothered to do the let-me-find-a-clever-way-to-distinguish-this-line-of-precedent thing; he’ll just say ‘this line of precedent is wrong and should be overruled’. I don’t to want to exaggerate: he doesn’t do this all the time, of course, by any means. But he’s more willing to say it than his colleagues seem to be.

154

Sebastian H 02.20.16 at 4:39 am

“But I don’t think we’re there. I don’t think that it makes descriptive sense to allege that any Justice is %100 policy oriented. The apparatus of law and the dynamics of the institution forbid it.”

Hmmmm, I would say that I agree that the institution itself makes certain expressions of policy unlikely or impossible. The Court can’t start a war. The Court can’t personally collect taxes. It theoretically can only decide cases that are brought before it, though in practical reality it can go well past that. It can theoretically only strike things down, not enact them, though the Roe-like cases go well into legislative territory in terms of specificity (trimesters really?). So in terms of results of the whole system, the Court isn’t a dictatorship. It doesn’t have the actual physical power to get certain things done. But that hasn’t been an issue because the rule of law is actually very strong in the US, so for the most part it hasn’t needed hard power.

But within their domain (you could say “the legal system” but it is quite a bit further than that really) I would say that Justices like Alito and Kagan are completely unrestrained by the Constitution. They will always ‘find’ the policy questions that they want to find and resolve them the way they personally want to resolve them. Their only restraint is the necessity to convince 4 other Supreme Court justices. They aren’t interpreting the Constitution, they are using as much power as they have to enact the policies they personally want.

The legal realists say that all Supreme Court justices are like that, and many of the legal realists say that it ok for them to be like that.

My argument is that IF the legal realists are correct, we should take away judicial review from the Supreme Court because we have policy making branches with electoral protections and much greater legitimacy than 9 people from only Harvard and Yale.

Now I actually don’t think the legal realists are generally correct. I think that in the past there was a great effort for Justices to be ‘Judicial’ in the sense of trying very hard to put aside their personal desires and look at the Constitution. I think that of course they were human and imperfect, but that they tried to do so. So far as I can tell, Kagan on the left and Alito on the Right are almost a complete 1 on the scale you are talking about (in their domain, which by the way they both try to constantly expand). Their policy preferences are not constrained by some sort of fidelity to the Constitution.

I *think* what you are trying to point out is that systemically they aren’t dictators–they have systemic constraints because the police might not obey them or Congress might ignore them or something. So you *seem* to be saying that the OUTCOME on your scale is less than 1. [I’m uncertain about this, so if I’m misinterpreting please correct me]. I agree with that, but I’m suggesting that in their area they were supposed to be constrained by the Constitution, and they aren’t.

The problem I have is that they are essentially burning down huge reserves of institutional respect for the rule of law and the Supreme Court itself by making amendment-level decisions.

155

Sebastian H 02.20.16 at 4:46 am

A good judge feels constrained by the underlying law. When that happens they may be forced to write things like “This, this and that are good policy, but the Constitution mandates X [or allows Y]”. Kagan and Alito never have that problem because their ‘reading’ of the Constitution magically always agrees with what they want. Both of them are notorious about not finding that things are ‘searches’ or ‘seizures’ for instance.

156

LFC 02.20.16 at 5:06 am

In Florida v. Jardines (2013), police took a drug-sniffing dog to a front porch, where the animal “alerted” for narcotics. The cops then got a warrant to search the house and found drugs. The lower courts threw out the evidence, holding that the use of a drug-sniffing dog on a front porch was a Fourth Amendment ‘search’ unsupported by probable cause.

SCOTUS affirmed the lower courts by 5-4. Scalia wrote the majority opinion, joined by Kagan, Sotomayor, Ginsburg, and Thomas. (Kagan wrote a separate concurrence.) Alito wrote the dissent, joined by Roberts, Breyer, and Kennedy.

157

LFC 02.20.16 at 5:09 am

158

John Holbo 02.20.16 at 5:12 am

“I would say that Justices like Alito and Kagan are completely unrestrained by the Constitution. They will always ‘find’ the policy questions that they want to find and resolve them the way they personally want to resolve them”.

OK, Kagan. I have never thought about this. I plead ignorance. Alito seems like a pretty staunch Republican, generally finding ways IF HE CAN to resolve issues in ways that will be pleasing to Republicans and frustrating to Dems. But I think that IF is still pretty big. You will only do it if you can keep your partisan ass from showing too nakedly, from under the robe. That is a cynical constraint, yet highly significant, when it comes to reach.

I gotta do some other stuff this afternoon. Pending my return, let me hit the ball back. Feel free to return the volley or not. At least you admit that none of these justices are 1’s on the WoD scale. That dude was something else. I’m not saying that’s proof of health, that we aren’t that. If you had 9 WoD’s on the court, even if they were a right-left mix, the court would totally lose judicial credibility. It would be the end. Just as if you had 9 Scalias on the court, it would lose credibility, even if 5 of them were liberal and 4 conservative or vice versa. It would be too obvious that the situation was nakedly partisan in its dueling ‘purisms’. There would be no collegiality or other ballast to hold it together. To adapt William F. Buckley, I’d sooner expect a functional court if I confirmed the first 9 stray cats from the Boston SPCA. (I will admit that 9 Scalias would be less bad than 9 WoD’s. The court would last a week in the latter case, perhaps as long as a year in the former case.) But that is really not what we’ve got, thank goodness. It’s bad and probably getting worse. But it isn’t that bad, right.

I just had a great idea for a Pixar film. “Inside Out”, only this time it’s a legal procedural. Outside, there’s disarray on the court and it’s do-or-die time, in arriving at a judgment. But every justice also has this court inside his/her head, with all these comically extreme personality types, squabbling and unable to reach consensus. You get the idea.

159

LFC 02.20.16 at 5:25 am

A case like Fla. v. Jardines, policy-wise, puts ‘libertarian’ and ‘law enforcement’ positions into conflict. The ‘libertarian’ side is “we can’t have narcotics dogs sniffing around on front porches.” The ‘law enforcement’ side is “yes we can, if it will catch the wrongdoers.” The liberal/conservative lines got scrambled up. Scalia wrote for anti-dog-sniff side, joined by Thomas and also Kagan, Sotomayor and Ginsburg; Alito dissented on behalf of the pro-dog-sniff (or law enforcement) side, joined by Roberts, Kennedy, and Breyer. It’s just one case, of course, but interesting.

160

LFC 02.20.16 at 5:29 am

As someone remarked elsewhere on another occasion, W.O. Douglas was a brilliant man who was perhaps not a great fit for the job of Sup Ct Justice. I’m not at all sure he deserves the scorn and calumny that Holbo is pouring all over him; indeed, I’m pretty sure he doesn’t. But I’ll leave Holbo and Sebastian to their little games.

161

John Holbo 02.20.16 at 5:34 am

“I’m not at all sure he deserves the scorn and calumny that Holbo is pouring all over him.”

Well, he was a first-rate genius. Brains vs. brains, there aren’t many that could go against either him or Scalia, in Supreme Court history. But nine of either would have brought down the court, put them all together at one go.

162

John Holbo 02.20.16 at 5:39 am

The more I think about it, the more I want to do a remake of “Inside Out” so it’s about a Scalia-like Supreme Court justice. He’s forced out of the conservative social environment of his childhood, into the modern, metrosexual world of coastal elites. He becomes despairing and petulant as a result. The court outside of his mind is falling apart, and inside as well.

We could even keep Bing Bong. We would only have to change his name to ‘textual originalism’.

https://www.youtube.com/watch?v=oiHgvzlZx04

OK, I really have work to do.

163

Sebastian H 02.20.16 at 5:56 am

The Jardines case is interesting in that it doesn’t break on Democrat/Republican lines, but it is uninteresting in that it breaks exactly along the libertarian/non-libertarian axis on drug use and was pretty much expected (the only question was whether or not Scalia would let his libertarian policy preferences win out over his law and order preferences.

What it isn’t, is a good example of Justices feeling forced by the Constitution to rule against their own policy preferences. All nine of the Justices in that case happened to vote exactly in line with their policy preferences. That one case isn’t proof of bad judging. But if you are never driven by your duty as a judge to rule against your policy preferences, it is very suspicious. I contend that Kagan and Alito never feel constrained by what the Constitution says to vote against their policy preferences. They may temper that in close cases to win votes from the swing judge, but that is just lucky for the rest of us.

“It would be too obvious that the situation was nakedly partisan in its dueling ‘purisms’. There would be no collegiality or other ballast to hold it together. To adapt William F. Buckley, I’d sooner expect a functional court if I confirmed the first 9 stray cats from the Boston SPCA. (I will admit that 9 Scalias would be less bad than 9 WoD’s. The court would last a week in the latter case, perhaps as long as a year in the former case.) But that is really not what we’ve got, thank goodness. It’s bad and probably getting worse. But it isn’t that bad, right.”

That is the direction it is going. It isn’t that bad yet, in order of naked policy preferences I would order them Alito=Kagan 0.9 or so, Kennedy .85, Breyer .8, Scalia .7 (but probably .85 in last 5-8 years) Roberts =Ginsberg .4 (both have a strong feel for the institution as separate from the politics), Thomas either .35 or .7 depending on how you rate his indifference to institutional responsibilities, I don’t have a good feel for Sotomayer. I vaguely feel like she is more than Roberts/Ginsburg but less than any of the really naked personal preference ones say .45 or .5. Sandra Day O’Connor would have probably rated up there between Kennedy and Breyer.

But in terms of the academic analysis, there has been a very big push in the naked realist camp over the last 40-50 years. Essentially all of the academic push and all of the political push is toward more naked preference decisions and less of what we used to think of as judicial responsibility to put aside their own preferences.

Some of the legal realists say that judges just never really do that. If they are right we should get rid of judicial review of Congress.

The rest of the legal realists say that judges shouldn’t even try to do it. In which case we should DEFINITELY get rid of judicial review of Congress.

My point isn’t that the legal realists are wrong (though I think they are). My point is that if they are right, we shouldn’t have judicial review of Congress. The ones who think they are right AND want judicial review of Congress are either deeply elitist/anti-democratic, or they are deeply confused.

If we had 9 justices in the Kagan/Alito/Kennedy range we would have a deeply broken institution. If you count Breyer and Scalia, we already did have a deeply broken institution with 5 of the 9 willing to put their personal preferences over the Constitution. If you count Thomas we had 6 of 9. It just wasn’t super obvious how broken it was because they disagreed with each other enough.

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Sebastian H 02.20.16 at 6:01 am

Please note that the very rough guesses on the index are within the limits of what a court can do. If you think it is important to note that the Supreme Court can’t declare war, or physically create a spaceship, subtract whatever institutional amount is appropriate for that. But in terms of an ordered ranking, and in terms of intensity, I think I got it about right.

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CJColucci 02.21.16 at 4:22 am

I’m no fan of Justice Alito, but off the top of my head I can think of at least one decision last term where he could have voted his personal policy preferences but didn’t. (FWIW, I shared both his policy preference and his legal conclusion.) Granted, it was an antitrust case, not a Con. law case, but the Sherman Act’s text shares with the Constitution’s text the quality of doing very little to determine results no matter how long you stare at it.

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Trivial 02.21.16 at 6:27 pm

FYI despite the Alito dissenting retort that “Brulotte was an antitrust decision masquerading as a patent case,” the Kagan majority in Kimble argued that “stare decisis—in English, the idea that today’s Court should stand by yesterday’s decisions—is a foundation stone of the rule of law. Application of that doctrine, although not an inexorable command, is the preferred course…if Brulotte were an antitrust rather than a patent case, we might [decide] as Kimble would like.”

The Kagan majority ultimately held that “indeed, we apply statutory stare decisis even when a decision has announced a ‘judicially created doctrine’ designed to implement a federal statute…all our interpretive decisions, in whatever way reasoned, effectively become part of the statutory scheme, subject (just like the rest) to congressional change. Absent special justification, they are balls tossed into Congress’s court.”

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LFC 02.21.16 at 7:19 pm

For the record, Sebastian never bothered to answer the questions about the Kimble opinions that Trivial asked him @153/154. Admittedly that might have required some time and effort on Sebastian’s part, as opposed to playing “let’s-rank-the-Justices-on-Holbo’s-Douglas/Pixar/whatever scale.”

Btw, Holbo might be right that a Sup Ct composed entirely of W.O.Douglases wd not be long for the world as a ‘legitimate’ inst. But I’ll leave that question for others better qualified than I am to pronounce on it.

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Procopius 02.22.16 at 2:46 am

I probably ought to follow the rule that “nothing is often a witty thing to say.” Rugh Bader Ginsberg is reported to have been a close friend of Scalia’s for many years, and she has been quoted as describing him as a wonderful person. This produces in me cognitive dissonance. I cannot imaging a person who wrote the opinions he did and advocated the views he did being good. Witty? Charming? Fun to be around? Maybe, although I don’t really think I would like a person who thought shooting birds was so much fun they would want to spend all day walking through dusty fields under a hot sun to do it.

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TM 02.22.16 at 9:59 am

It wonder whether it has ever occurred to SH that the wording of the 4th amendment protects against “unreasonable searches”. No amount of textual originalism can spare the courts the work of making a judgment call as to when a search would be unreasonable. And of course there’s the right to a “speedy” trial, “just” compensation, not to be subjected to “cruel and unusual” punishment etc. etc. SH effectively claims that the text is so obvious that nobody could disagree with his interpretation in good faith. The fact is that the language of the constitution has its fair share of ambivalence and the authors surely must have known and intended that future generations would develop their own interpretations. Saclia’s own fake originalism, which doesn’t even go by the language as it is written but by how a hypothetical contemporary would have understood it (*), ranks high on the list of the most absurd judicial doctrines. And he throws even that overboard whenever it suits him, most obviously in the Heller decision, which the dissent masterfully deconstructed. Btw everything SH says about those others who “never feel constrained by what the Constitution says to vote against their policy preferences” applies to his own 2nd amendment stance.

(*) It is worth noting that most 18th century contemporaries would have understood a statement such as “all men are created equal” very differently from how we understand it today, even though the words seem to be clear enough.

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