Wednesday, February 15, 2012

Judicial Arrogance

Posted by Sherry F. Colb

In my column for this week, Part 2 of a two-part series in which I discuss and analyze the opinions in United States v. Jones, I elaborate on some of the differences between Justice Scalia's and Justice Alito's respective approaches to the Fourth Amendment implications of using a GPS device to monitor suspects' whereabouts.  In this post, I want to focus on something else:  judicial arrogance.

Justice Scalia has regularly accused various of his colleagues on the U.S. Supreme Court of a type of judicial arrogance.  He suggests that they believe they know better than democratically elected representatives of the people and can therefore disregard the will of the majority of Americans and impose their own subjective vision of what the Constitution ought to (but does not in fact) mean.  This criticism is in part a Separation of Powers objection, a claim that judges are not authorized to undo legislative action under the circumstances in a particular case and they therefore usurp the role of the elected branches of government when they do.

But the criticism is more than that -- it also implies that the Justices are guilty of a kind of elitism, under which they presume that they are better equipped to determine the best policies for Americans than are the people whom Americans have actually elected to do that job.  In this scenario, Justice Scalia is the humble judge who understands and appreciates the proper limits of his own power and accordingly refrains from invalidating legislation in the absence of clear constitutional language or a straightforward original understanding that comes into conflict with the legislation.  To do otherwise would be to indulge the illusion that Justices know best.

Justice Scalia's image of himself as a humble judge is flawed in a number of respects.  First, his notion that he engages in an objective apolitical process while his colleagues impose their own values on the populace bears little relation to reality.  Judging is inherently a value-laden and subjective process from which it is not possible to excise politics altogether.  This does not mean that judges are incapable of error, of course -- just because there is more than one arguably right answer does not negate the fact that there are many and varied wrong answers.

Second, and perhaps more importantly, Justice Scalia picks and chooses when he will be "humble" (and leave legislation in place) and when he will be arrogant (and strike it down).  He is sometimes wedded to the text and the original meaning of constitutional provisions, for example, in mocking the very idea that there might be a fundamental constitutional right to reproductive choice or to same-sex relationships.  But he is at other times quite willing and even eager to overlook the text and original meaning, for example when he concludes that punishing racists for violent expression of their racial hatred violates the Free Speech clause of the First Amendment, or that government-supported affirmative action violates the Equal Protection Clause of the Fourteenth Amendment.  And Justice Scalia's vote in Bush v. Gore ought perhaps to have put to rest permanently the claim that his approach to constitutional interpretation transcends politics.

Humility and arrogance, however, have broader meanings as well and refer to more than just how enthusiastically a judge engages in judicial review.  Under this more common use of the words, Justice Scalia was famously reported to have said "What's a smart guy like me doing in a place like this?"

In United States v. Jones, Justice Scalia began his majority opinion with the following words:  "We decide whether the attachment of a Global Positioning-System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment."  One could understand this statement to mean that Jones is a case in which the Supreme Court is ruling on the Fourth Amendment implications of police tracking suspects with a GPS.  On this interpretation, the statement is bland and uneventful.  It simply introduces the topic.

But there is another way to read the statement, with an emphasis on the word "We."  On this interpretation, "We decide" -- Justice Scalia looks out on the different ways in which judges, lawyers, academics, and lay people have understood the constitutional implications of GPS surveillance.  And having done so, he  announces that he and the other Justices in the majority will decide this controversial question:  he is, in other words, about to deliver the truth.

Justice Jackson once said, referring to the Justices on the U.S. Supreme Court, that “[w]e are not final because we are infallible, but we are infallible only because we are final.”  This statement reflects the knowledge that a Supreme Court Justice wields enormous power that does not correspond to his or her special capacity to divine the truth.  When he is not self-consciously displaying  judicial humility, Justice Scalia appears sometimes to forget the responsibility and potential for error that go hand in hand with power, even when the person exercising that power is Justice Antonin Scalia.