Thursday, February 14, 2008

A slap in the face from Justice Scalia

Justice Scalia was recently in England, where he gave an interview on a wide range of subjects. You can read the overview story here and click on the audio program (or perhaps I should say "programme"), which contains some introductory material and commentary, but then proceeds mostly uninterrupted. Here are some highlights:

1) When asked whether part of his job is to safeguard the image of the United States overseas, Justice Scalia answers yes, and that he does so by traveling around the world as a good will ambassador. Given the likely reception of the rest of his comments (especially number 4 below), he might want to rethink this answer.

2) In response to a question about how politicized the U.S. judicial appointments process is relative to the process in other countries, Justice Scalia puts the blame on judicial activism. This is a familiar charge and there's a certain logic to it. If the Supreme Court only exercised technical legal judgment, then no one would care about the ideology of judicial nominees. The problem with the answer is that it ignores just about all of American history. Judicial appointments have been politically charged (albeit over different issues) since the early Republic. And of course Justice Scalia's own judicial philosophy is now (rightly) perceived as one of the political positions in that debate.

3) In response to the charge that the Supreme Court divides along left/right ideological lines, Justice Scalia insists that this is not so, invoking his decisions in cases involving the rights of the accused (specifically the Apprendi line of cases, though he doesn't mention them by name), and his decision in the flag-burning case of Texas v. Johnson. I have considerable sympathy for Justice Scalia's resistance to reducing all legal issues to conventional left/right divisions but I think these examples pretty clearly undermine his broader jurisprudential claims to neutrality.

As for Apprendi, the majority opinion of Justice Stevens in that case (joined by Scalia), relies to some extent on historical argument, but largely makes inferences from highly abstract propositions about the value of the jury right. Justice Scalia also joins a much more historically based concurrence of Justice Thomas, but it is hard to see how the historical arguments do the work, given that Justice O'Connor, in dissent, marshals strong historical arguments for the contrary result. And in Texas v. Johnson, Justice Scalia simply joins Justice Brennan's majority opinion, which doesn't make any effort at all to ground its result in the original understanding.

These cases demonstrate that Justice Scalia is not a down-the-line conservative but, as Chris Eisgruber argues persuasively in The Next Justice, they do not display the power of originalism. Instead they show that Scalia finds a certain sort of libertarianism attractive on normative grounds.

4) In response to a question about the "ticking bomb" scenario, Justice Scalia says that the 8th Amendment ban on "cruel and unusual punishment" does not necessarily apply to torture because torture for information is not "punishment." He then goes on to say that he thinks it would be crazy not to use at least some force to stop an attack on an American city (he picks Los Angeles). The level of force that Justice Scalia thinks pretty clearly permissible is a "slap in the face" and also, when asked by the interviewer, Alan Dershowitz's proposed sterile needle under the fingernail. Justice Scalia goes on to say that hard questions are posed by substantially greater force under conditions of lesser certainty.

It's not entirely clear whether Justice Scalia is making only a moral claim or also a legal claim. If he's just making a moral claim, that's fair enough. His main point here seems to be to say that when and whether to torture is a legitimately hard question, at least in theory. But of course Justice Scalia is famous for denouncing purely moral pronouncements from lawyers and judges. He wrote in the Cruzan case that "nine people picked at random from the Kansas City telephone directory" are no less moral authorities than the Justices of the Supreme Court. Accordingly, one could be forgiven for thinking that when he opines that whether to torture is a hard question, he means it's a hard legal question, and not just a hard moral question. But of course it's a fantastically easy legal question. U.S. law and international law clearly forbid torture.

In affect, Justice Scalia comes across in the interview as affable, thoughtful and funny. But his answers don't stand up very well to critical analysis.

Posted by Mike Dorf

28 comments:

Jean said...

I heard this story on NPR, and then read the BBC piece (I haven't listened to the Podcast of the full interview yet). I was unsettled by Justice Scalia discussing his views on torture, since it seems possible that a torture case could arise out of Guantanamo, or the War on Terror in general, and eventually make it to the Supreme Court. I had an immediate reaction that it's inappropriate for a judge to discuss his (or her) opinion on a subject we know could present itself in a case for decision. Is this a valid assessment, or is it generally acceptable for a justice to speak out as Scalia did? And is there a possibility of a torture case arising out of the events of the past five years and making it to the Court?

egarber said...

2) In response to a question about how politicized the U.S. judicial appointments process is relative to the process in other countries, Justice Scalia puts the blame on judicial activism.

In the end, to me "judicial activism", or whatever one wants to call an opposing interpretation / philosophy, is simply a reflection that the constitution is wide open in its wording. Concepts like "liberty" and the "rights retained by the people" (for example) are plainly broad. And maybe, just maybe, the framers anticipated the dueling judicial philosophies we see today -- and perhaps they thought the competition of ideas would be a GOOD thing.

4) In response to a question about the "ticking bomb" scenario, Justice Scalia says that the 8th Amendment ban on "cruel and unusual punishment" does not necessarily apply to torture because torture for information is not "punishment."

So is Scalia basically implying that the Eighth might not apply pre-conviction in a criminal context? Seems odd that while a convicted person receives the full benefit of the protection, a technically innocent individual (before being proved guilty) isn't protected at all.

This affront to common sense reminds me of the Scalia position on habeas corpus (if I'm remembering it correctly): once Congress passes a law to protect HC, it can't suspend it; but if it fails to pass a law in the first place, there is no such thing as HC under the constitution.

Carl said...

So is Scalia basically implying that the Eighth might not apply pre-conviction in a criminal context? Seems odd that while a convicted person receives the full benefit of the protection, a technically innocent individual (before being proved guilty) isn't protected at all.

Presumably on Scalia's argument convicted prisoners could still be tortured to extract information without running afoul of the 8th amendment, so they won't really have any greater protections than suspects.

Carl said...

I should add that the idea that torture is not intrinsically a form of punishment is dubious. Even if the ultimate goal is to extract information, physical pain is imposed as a punishment for not talking. Scalia might as well have argued that the 8th amendement wouldn't apply if the goal of incarceration were to reform or deter rather than to punish.

egarber said...

good points Carl...

I was thinking that "punishment" referred to any post-conviction incarceration.

In any case, my follow-up would be:

"Even if somehow you think the government is allowed to torture anybody on Eighth Amendment grounds, provided it's not about punishment, what about Fifth Amendment due process, self incrimination and Habeas Corpus**?"


**Of course, according to Scalia (I think), HC doesn't exist unless Congress says so.

[I haven't listened to the detail, so for all I know, his comments were qualified to take these concerns into account].

Somewhere he has to have a firewall, right? Otherwise he would literally be saying that torturing an American for information doesn't violate the constitution in any way.

Carl said...

Somewhere he has to have a firewall, right? Otherwise he would literally be saying that torturing an American for information doesn't violate the constitution in any way.

I think this is right. I was reading him charitably as saying only that the 8th amendment doesn't prohibit torture when used to extract information (whether from people convicted of crimes or not) - not that torture might not be unconstitutional on other grounds. I think your due process argument has promise, but others here are much more qualified to speculate on that than I.

Brian K. said...

He wrote in the Cruzan case that "nine people picked at random from the Kansas City telephone directory" are no less moral authorities than the Justices of the Supreme Court.

I wonder if he would continue to think this if the 9 people were to be picked out of the San Francisco phone book.

Sobek said...

"...perhaps they thought the competition of ideas would be a GOOD thing."

Of course competition of ideas is a good thing. But resolution of that competition by unaccountable judicial fiat? Which then becomes virtually constitutionalized through stare decisis?

Garth Sullivan said...

"a slap in the face"

indeed.

this so misconstrues enhanced interrogation techniques as to be laughable.

it is repeated slaps in the face, and belly slaps, designed to cause pain, coupled with prolonged stress positions, hypothermia, sensory deprivation, isolation, waterboarding and, quite possibly, pscyhotropic drugs.

the intent is to break the mind of the captive and use of these techniques places the US among the ranks of the worst Human Rights Abusers in the world.

at least he admits American Jurisprudence should be no guide to the rest of the world.

it's useful to recall his comments, and obvious appreciation, concerning Jack Bauer.

what I don't get is how he can so blithely ignore the obvious intent of the various laws, treaties and constitutional provisions designed to forbid torture and make it a crime.

furthermore, when he argues that no jury will convict Jack Bauer, he seems to be arguing for a type of jury nullification, which is at best, a type of affirmative defense.

Indict them all and lets see how a jury views the legal opinions of the John Yoos, Steven Bradburys, Cheneys, Bushies, Rumsfelds and Fredos.

It seems to me that given the chance Fat Tony is eager to become a war criminal in the eyes of the world and his church.

Opus D'oh indeed.

egarber said...

Hi Sobek,

I wasn't arguing for open-ended opinion or fiat. My point was that there can be more than one coherent and disciplined posture. Further, no single philosophy has a monopoly on original intent.

You and I have had respectful discussions about the Ninth Amendment, for example. When I argue that it's a source for protection of rights in and of itself -- or at the very least a signal that other specific rights are intended to be interpreted broadly -- I'm actually making a kind of originalist argument.

OTOH (if I'm not mistaken), you see it as too vague to for disciplined judicial action.

To me, those are two valid positions based on history and construction; I wouldn't call either reckless fiat. Or in other words, my view is that the framers knew they were presenting tough questions for future judges. But I think their hope was that an independent -- and uniquely judicial -- discipline would arise to answer them. Excessive narrowness is itself a form of activism (imo), especially given that so many terms in the constitution are so wide.

Garth Sullivan said...

Scalia does not come across as affable, thoughtful or funny.

he comes across as a modern day Torquemada.

His comments were immediately criticized, thus;

His position was fiercely criticised by Professor Conor Gearty of the London School of Economics, one of Britain's leading experts on human rights law.

"Antonin Scalia works hard to protect himself from having to think seriously about torture," he said.

"His devices are quite obvious, the idea of a smack on the face - rather than sensory deprivation, or waterboarding or any of the Abu Ghraib images - and the comment about 'so-called torture'..."

Professor Gearty accused Justice Scalia of creating a "nightmare scenario of mass destruction that all defenders of torture so need, to hide the fact that the reality of torture will be quite different".

Bang On.

Sobek said...

"...the intent is to break the mind of the captive and use of these techniques places the US among the ranks of the worst Human Rights Abusers in the world."

Yep, right up there with pre-invasion Afghanistan, where you get stoned to death for homosexuality. Or Iran, where a woman can get sentenced to blinding for throwing acid at an attempted rapist. Or Saudi Arabia, where you can get an increased sentence for complaining about going to jail for being gang-raped in a car with an unrelated man. Or North Korea, where you can get thrown in the gulag for being related to perceived political dissidents. Or China, where you can get your organs harvested while in jail.

Belly slaps.

Dude, are you trying to sound like a parody of liberal moral equivalence?

Sobek said...

"OTOH (if I'm not mistaken), you see it as too vague to for disciplined judicial action."

My understanding of the Ninth Amendment is that it is intended to preserve the power of people vis a vis their states, and their rights of self-governance within that state. Within that sphere, the amendment is certainly not too vague for judicial action.

"Excessive narrowness is itself a form of activism (imo), especially given that so many terms in the constitution are so wide."

To an extent I agree with you: the Constitution used broad and vague terms, and I think that is with an intent that the judiciary create some kind of framework within the greater framework of the Constitution.

The Due Process clause is a prime example of my argument. The Constitution doesn't say what kind of process is due, and given the common law tradition at the time of the founding, I can only conclude that the Framers intended for judges to make that kind of call. But inventing "substantive" due process goes beyond the admittedly broad boundary, because it lets nine-fifths of any given Court to determine what is "traditional," what is "fundamental," etc. It inevitably leads to judicial fiat, because the Court is unconstrained by anything other than its own policy preferences.

I'll illustrate this with reference to Roe v. Wade. Blackmun started with an analysis of the text of the Constitution to defeat the argument that the word "person" in the fourteenth amendment includes a fetus. And I agree with his analysis. The history, the intent, the use of the word in other contexts, all show that "person" does not include a fetus.

But Blackmun then abandons the text entirely to look into privacy, a word that does not appear in the Constitution and which was not constrained by anything other than how many votes Blackmun could muster. He reached his result by taking an expansive view of other clauses (including the Third Amendment, for crying out loud) to find a right to privacy.

But his same approach can produce the exact opposite approach. If any given clause can be expanded in any direction, then why can't the word "person" be applied to a fetus? And if five out of nine judges decide tomorrow that, regardless of what the word meant in 1973, it now includes a fetus, what disciplined, contrary argument can you possibly raise? That text can only be expanded in a direction that liberals like?

If, as my Con Law professor claimed, the text of the Constitution is like an accordion, ever expanding and contracting, then what prevents it from expanding to protect a fetus? Or contracting to no longer apply to illegal aliens physically present in America? Or expanding to let military recruiters on college campuses? Or contracting to keep affirmative action programs off of campuses?

And the only answer to any of those questions, if you accept the premise that the Constitution expands and contracts, is the whim of five out of nine unaccountable judges.

egarber said...

My understanding of the Ninth Amendment is that it is intended to preserve the power of people vis a vis their states, and their rights of self-governance within that state. Within that sphere, the amendment is certainly not too vague for judicial action.

The history of the Ninth is pretty clear. Madison and Hamilton were worried that an enumeration of specific rights might be read by future generations to be exhaustive, thus putting other UNspecified liberties at risk. So the Ninth corrected that flaw -- declaring that there are other unenumerated rights alongside those listed.

In other words, the Ninth anticipates that un-named rights like privacy, etc. will require protection.

And it's proper (imo) to incorporate it via the 14th against the states, along with the other liberty amendments in the BOR.

But inventing "substantive" due process goes beyond the admittedly broad boundary, because it lets nine-fifths of any given Court to determine what is "traditional," what is "fundamental," etc.

I actually think the Ninth Amendment and the constitution’s general "liberty" references require this kind of broad thinking when intimate liberties are implicated. Put another way, I think those clauses are a philosophical command to err on the side of the individual when his/her zone of immediate freedom is threatened.

Of course, the court's makeup affects how that outer edge is defined. But even if the court goes "too far" by some theoretical standard, the worst that can happen is that we err too much in favor of individual liberty. If you think about it, that’s yet another pretty brilliant check on power, vs. a model that defaults heavily on the state’s side.

But Blackmun then abandons the text entirely to look into privacy, a word that does not appear in the Constitution

But the constitution tells us (via the Ninth) not to be fooled by the lack of a word or specified right in its text.

And there are many rights we take for granted that aren't mentioned. Where in the constitution is the freedom to say, marry someone of your choosing? Or the right for Prof Dorf to be a vegan? Or your right to have a cookout with friends? Or my right to go to a bar or football game? Or my right to throw back Tylenol as your replies cause me headaches (kidding! These are awesome exchanges)? Whether you call it substantive due process or egarberianism, something like sdp must arise for any of these liberties to be protected, I think.

I'll illustrate this with reference to Roe v. Wade. Blackmun started with an analysis of the text of the Constitution to defeat the argument that the word "person" in the fourteenth amendment includes a fetus.

I’m not sure it matters but I think the assessment of the mother’s fundamental rights comes before his analysis about whether a fetus is a person under the constitution.

But his same approach can produce the exact opposite approach. If any given clause can be expanded in any direction, then why can't the word "person" be applied to a fetus? And if five out of nine judges decide tomorrow that, regardless of what the word meant in 1973, it now includes a fetus, what disciplined, contrary argument can you possibly raise? That text can only be expanded in a direction that liberals like?

The logic of Roe isn’t as arbitrary as you make it appear (imo). As such, the “expansion” (I don’t think that’s the right word for it, actually) in that case only works in one direction: toward protecting the mother’s reproductive rights. With regard to the fetus, Blackmun stressed that it’s not the Court’s role to decide when life starts. Therefore, I think Roe can actually be read as a disciplined ruling – it would be quite “activist” if the Court decided to take on the ultra-controversial question of whether a fetus is a person. But it's not a huge leap to use a woman's privacy right as a starting point for the larger analysis.

So to answer your question, under my thinking at least, rulings like Roe lean in one direction, because the broad interpretation is on the rights side; it’s not multi-directional or arbitrary.

If, as my Con Law professor claimed, the text of the Constitution is like an accordion, ever expanding and contracting, then what prevents it from expanding to protect a fetus? Or contracting to no longer apply to illegal aliens physically present in America? Or expanding to let military recruiters on college campuses? Or contracting to keep affirmative action programs off of campuses?

Understood. I’m not advocating an accordion model. If a given philosophy is consistent – whether leaning toward broad intimate rights, or away from them – different judges who practice it will usually end up in the same ballpark when faced with similar issues. And this brings me back to my original point: there can be more than one coherent theory.
And we also must remember that in the end, the constitution can be changed by supermajority if precedent drifts too far from acceptable norms. Further, on the front end, the initial appointments are driven by the people via elections. So it’s not accurate (imo) to say there’s no ultimate accountability.

Sorry for the length -- and thanks for keeping me honest on my position with the good replies.

Sobek said...

"In other words, the Ninth anticipates that un-named rights like privacy, etc. will require protection."

So stated, I'll agree with your earlier characterization of my view that the Ninth is utterly unenforceable. It is constrained only by the judge's imagination and how many votes he or she can muster. Right to privacy? Sure. Right to gay sex? I know that Lawrence was not premised on such a theory, but why not? Findamental right to eat the corpses of the dead? Why not? Can you think of any reason why cannibalism shouldn't be protected by the Constitution?

"But even if the court goes 'too far' by some theoretical standard, the worst that can happen is that we err too much in favor of individual liberty."

Unless President Bush gets another judicial pick, and he successfully (uh, obviously this is highly hypothetical) nominates Robert Bork, and five justices spend the next few decades overruling every liberal precedent ever. How would you respond to such a situation? All they would need to do is state that their decision is commanded by the Ninth Amendment, and the argument is closed. I have a right to a legislature that has the power to ban abortion, even where the life of the mother is at stake. I have a right to compel old people to stay on life support. I have a right to gay sodomy, or to order the police into your bedroom to prevent your gay sodomy. I have a right to exhume your grandmother's corpse and eat it for lunch. And, more pertinent to this thread, I have a Constitutional right to be protected from terrorism by a government that can torture bad guys to get information -- real torture, like electrical shocks, breaking bones, amputation.

Anything can be framed in terms of rights, no matter how ridiculous.

"I’m not sure it matters but I think the assessment of the mother’s fundamental rights comes before his analysis about whether a fetus is a person under the constitution."

It certainly doesn't matter, because you're not a Supreme Court justice. Your view doesn't matter at all. You have no right to determine what your government can and cannot do in that field, because the Supreme Court has taken the decision from you. And any other Supreme Court can reverse Roe v. Wade, and then declare abortion unconstitutional, and again you will have no say in the matter. Your views, your rights, your arguments do not matter. I find that offensive in the extreme, because your views should matter.

And again, you say that the analysis should begin with the rights of the woman, but on what basis? Certainly the Constitution doesn't say so. And if the Ninth Amendment means whatever rights are articulable are also constitutional, then what could possibly stop five out of nine justices from deciding that fetuses have a Constitutional right to life?

"Further, on the front end, the initial appointments are driven by the people via elections. So it’s not accurate (imo) to say there’s no ultimate accountability."

David Souter.

egarber said...

Sobek,

I understand your point, but I don’t agree with your conclusion that such analysis is dire. Of course, it can be made to look arbitrary and reckless if one jumps to granularity from all sides, but if we frame a right generally and start with the individual (in the Roe example, the woman is clearly a protected individual under the constitution), the assessment is made easier.

For example, I would argue that there is a right to “free association” under the constitution – meaning the government must show a compelling need before telling me I can’t choose my own friends. But that clarity can be lost if the right is framed narrowly – i.e., “you’re telling me the constitution says there’s a right for you to hang out with people who masturbate in adult videos??! No f*ckin’ way Madison thought that…”

It’s the same with privacy, imo. It’s not that judges are cherry-picking a million exercises of privacy when the right is protected; it’s that there is a single zone of intimate personal freedom where the majority doesn’t get to decide an individual’s moral code, absent a compelling interest. Contrary to your argument, when it comes to what happens within that core liberty, I *don’t* think my view should matter very often.

Is it always easy to figure out when the government has a compelling interest to involve itself? Of course not. But just because it can be hard, that doesn’t mean it’s not the command of the constitution. Otherwise the answer is to simply ignore constitutional provisions (like the 9th) – and that can’t be what was intended.

And BTW, I'm pretty sure a smart lawyer can determine what the state's compelling need is in banning canabalism. I of course, am not one of them -- though I could venture some guesses, which I'll save for another time.

Sobek said...

"Otherwise the answer is to simply ignore constitutional provisions (like the 9th) – and that can’t be what was intended."

My reading of the Ninth does not call for it to be ignored -- it calls for the feds to respect the power of individuals to govern themselves through state power, which was the situation at the time of ratification.

I'll let it go. You've made your arguments, and they are good, and I've made mine.

I just want to pose an exit question, because I've been coming back to this thread frequently, wondering if I'm the only person who reads this blog who finds it absolutely ludicrous to suggest that America is as bad on human rights as Iran, Saudi Arabia, China and North Korea.

egarber said...

Sobek,

I appreciate the back and forth. Your strong replies and good arguments are a great sounding board for me, so I consider you a good blogging buddy (thanks for that).

On your question about human rights, I can only speak for myself. And on a straight comparison, I'm with you: it's laughable to think we don't uphold a much higher standard than those countries. But just so you understand, when I criticize our behavior in some area -- opposing waterboarding, etc. because I think it's torture -- it's because I want my country to uphold that higher standard. In other words, since I want the U.S. to be the world's beacon on human rights, I have higher expectations for my country vs. those others.

You'll never hear me say we're as bad as the oppressive regimes of the world; but you will hear me say that I don't think we should lower ourselves to their standards on the basics. Hopefully that makes sense.

Thanks again!

Sobek said...

"I appreciate the back and forth."

Likewise. One thing I miss about law school is that I always had someone (okay, a lot of someones) around to challenge my thinking about any one subject. A lot of my thinking about the Ninth Amendment in particular is a direct result of things I've read on this blog.

"You'll never hear me say we're as bad as the oppressive regimes of the world; but you will hear me say that I don't think we should lower ourselves to their standards on the basics."

I agree with you completely, and my references to China and Iran are by no means intended as a prelude to "if they can get away with it, we can too!" Rather, it's a horrified reaction to the trivilization of genuine tyranny and human rights abuses.

I have this sneaking suspicion that Garth owns a Che Guevara t-shirt.

Sobek said...

Quick follow-up: in construing the Second Amendment, do you think the Court should err on the side of personal liberty?

egarber said...

Quick follow-up: in construing the Second Amendment, do you think the Court should err on the side of personal liberty?

Great question. And the answer for me is: yes. For me to be consistent, I don't think I can cherrypick the BOR -- therefore, I'm pro privacy AND pro-gun rights. On intimate rights, I guess I don't fit too nicely within the contemporary left/right split. Not too many folks are ok with both the NRA AND NARAL :)

[Personally, I'd never own a gun, but that doesn't guide my thinking about the right to own.]

I'm also pro strict separation of church and state AND pro Fifth Amendment property rights (I think Kelo was a bad decision).

But I must stress that I'm not a libertarian, because I think the commerce clause is an energetic grant of power (as Hamilton argued). Though I think the Lopez and Morrison precedents are correct (the power has limits after all), I see the necessity for a vibrant public sector in certain areas: providing a safety net, investing in education, covering gaps in healthcare, regulating pollution, etc. I think that larger economic debate is best left to the democratic process, not the courts (outside of parameter cases like Lopez).

I guess you could say that I'm a Democrat with a streak of classical liberalism when it comes to the BOR.

BTW, one reason I reply pretty quickly on the blog is that I have the e-mail function turned on. cool feature.

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