Thursday, December 01, 2011

Nemesis or Frenemy?

By Mike Dorf

I've been thinking about nemeses lately. The latest king of nerd rock cool, Jonathan Coulton, has a wonderful song called "Nemeses" on his newish album, Artificial Heart.  (You can hear the whole song, indeed, the whole album, at JoCo's download site.)  It makes the point that a really good nemesis provides a sense of purpose and more.  A really good nemesis enables you to define yourself in contradistinction.  I finally finished reading Walter Isaacson's deeply engrossing Steve Jobs, which makes that point (among many others) about Jobs and Bill Gates--who were not just nemeses but also frenemies.

One can quibble about whether it is better to have a nemesis or to simply be the dominant player.  The world of sports provides some interesting cases.  Navritalova had Evert. Magic had Bird. Russell had Wilt. Jordan stood alone.  So did Gretzky.  The dominant players are incredibly impressive but their particular accomplishments may be less memorable.  Were it not for the fact that we came to understand that both McGwire and Sosa were cheating, their 1998 slugfest would be remembered as the most exciting thing to happen in baseball that year, eclipsing the Yankees' historic 125-win season.

So, who are the nemeses in law?  In jurisprudence, Fuller and Hart, surely, or perhaps Hart and Dworkin, or for committed positivists, even Hart and Raz.  In any event, Hart and somebody.  But most lawyers don't pay much attention to jurisprudence.  For the mainstream, the battle must occur more visibly.  In the post-New Deal era, the battle featured Felix Frankfurter versus Hugo Black.  But Frankfurter lost all the important battles.  He was a bit like the Washington Generals to the Harlem Globetrotters or Hamilton Burger to Perry Mason.  Or perhaps a better comparison would be the Boston Red Sox (pre-2004) to the New York Yankees: Frankfurter was good; he just lost.

And today?  The question has to be this: Who is Justice Scalia's nemesis?  In one sense the answer is obviously the late Justice William Brennan, whose unabashedly value-laden, liberal living Constitution is the antithesis of Scalia's purportedly disinterested, conservative "dead Constitution."  Yet Brennan retired over two decades ago and died in 1997.  A nemesis needs to be able to fight back.

Since Brennan's retirement, two Justices have somewhat self-consciously sought to take up the mantle of Scalia's nemesis: Justices Souter and Breyer.  But while each has attempted to distinguish himself from Scalia, neither really established himself as a new nemesis for Scalia. Souter tried to distinguish himself from Scalia by reinvigorating the Frankfurterian tradition.  Instead of paying homage to Frankfurter directly, Souter invoked Frankfurter's successor as the conservative dissenter on the Warren Court: Justice Harlan. The result was a kind of intra-conservative debate.  Souter, channeling Harlan, was a Burkean conservative, and thus in some regards, liberal.  Scalia was and is, to use a more political vocabulary, a neocon, with non-deferential originalism supplying the "neo."  The Souter/Scalia clash was real and important but the two were never quite nemeses because Souter's methodology conceded a good deal to Scalia's complaints about the supposed overreaching of the Warren/Brennan Court.

More recently, Justice Breyer has been making his bid to be Justice Scalia's nemesis.  The core problem, however, is that Breyer is a pragmatist, not a liberal, exactly.  There's nothing wrong with being a pragmatist, of course.  But it means that Breyer, like Souter, is offering something quite different from what Scalia is critiquing.  Accordingly, Scalia must distort Breyer's views a bit in order to associate Breyer with the philosophy he abhors.

The lack of a real nemesis diminishes Justice Scalia.  It makes his arguments look like they target a straw man.  He needs a nemesis.  Will it be Justice Kagan?  She has the abilities and perhaps the values, but she is part of my generation, not his, and certainly not the one that included Justice Brennan.  Our generation is quite a bit more skeptical of judicial philosophies, whether of the sort that Justice Brennan embraced or its nominal antithesis in Scalia's Dead Constitution.  Thus, it appears that Justice Scalia is destined to remain nemesis-less.  Unless one counts Judge Reinhardt (whom I am proud to have dubbed the "Chief Justice of the Warren Court in Exile"), the best that Scalia will be able to do on his own Court is to continue to fight it out with frenemies and to shadowbox with Brennan's ghost.


CEP said...

I'd like to suggest that -- if there is a nemesis for Scalia -- he's not playing in the same league. I see two potential candidates.

Within the judiciary, but not on the Supreme Court, one finds Scalia's former faculty colleague: The Hon. Richard Posner, 7th Circuit.

Not on the judiciary at all, one finds Professor Lawrence Tribe.

Or, perhaps, Justice Scalia's nemesis is a straw man, who makes the straw man arguments that Justice Scalia expends so much energy upon when he writes in dissent. </sarcasm?

John Q. Barrett said...

Mike, I think your tally is too tough on FF. He won the Adamson battle (selective v. total incorporation) with HLB, and to the extent that anyone later defeated FF on that terrain, it was Brennan not Black. But I think that much modern Substantive Due Process doctrine -- both Scalia wins like Glucksberg and Scalia defeats like Lawrence -- can be viewed as in the tradition of how FF (and, to be fair, also Harlan) judged. By contrast, HLB's dissent in Griswold, a late battlefield for him, has not become historically a "winning" position. In other words, aren't their successors, ranging from Scalia through O'Connor to Souter, Breyer, Ginsburg and even Kennedy, much more in the FF mode than they are in HLB's? (And thanks for the music tips.) Best, JQB

Sam Rickless said...

Scalia's real nemesis would be Justice who acknowledges what is right about what Scalia is saying while taking away all of its sting. A living constitutionalist cannot do this, because she just denies everything Scalia says. Pragmatists and Burkean conservatives can't do this, because they agree with a good number of Scalia's conclusions (though for other reasons). To my mind, Scalia meets his true intellectual nemesis in someone close to Dworkin, who can point out that there is nothing wrong with semantic originalism, but that such a position, properly understood, has virtually none of the consequences that Scalia extracts from his own (faint-hearted) originalism.

Scalia says (i) that "cruel" now means what the founders thought "cruel" means and (ii) that what the founders thought "cruel" means is determined by what the founders thought "cruel" applies to. The living constitutionalist says that "cruel" means what we now think is cruel. The pragmatist says that "cruel" means whatever in the general vicinity of the old/new meaning of "cruel" would, when applied, have the best consequences. The Dworkinite says (i) that "cruel" now means what the founders thought "cruel" means, and (not-ii) that what the founders thought "cruel" means is determined not by what the founders thought "cruel" applies to, but rather by the nature of cruelty (which is something we must discover for ourselves). By agreeing with (i) but disagreeing with (ii), and by giving an independent account of the nature of cruelty, the Dworkinite argues that Scalia's own principles, properly conceived, actually lead to practical conclusions that are diametrically opposed to the conclusions Scalia wants to draw from them. Now *that's* a nemesis!

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