Tuesday, July 31, 2012

Justice Scalia's Views About the Relation Between Law and Politics

By Mike Dorf


Making the rounds to promote his new book, Justice Scalia recently sat for a very substantive interview with Chris Wallace.  Much of the discussion about that interview has focused on what Justice Scalia said in defense of his dissent in the Arizona immigration case, including a not-too-subtle put-down of Judge Posner (who had previously criticized the dissent).  A lot of what Justice Scalia said was the sort of thing that any Justice would have said in similar circumstances.  But one exchange stood out to me as either disingenuous or reflective of a serious lack of self-awareness.  Here it is:

WALLACE: Finley Peter Dunne, the famous Chicago humorist once wrote, "The Supreme Court follows the election returns." How political is the court?
SCALIA: I don't think the court is political at all. People say that because at least in the recent couple of years - since John Paul Stevens and David Souter had left the court, the break out is often five to four, with five --
WALLACE: Republican appointed judges.
SCALIA: -- and four Democrats on the other side. That doesn't show they are voting politics. It shows that they had been selected because of their judicial philosophy. The Republicans have been looking for originalist and textualist and restrained judges for 50 years. And the Democrats have been looking for the opposite, for people who believe in Roe versus Wade.
Why should it be a surprise that after, you know, assiduously trying to get people with these philosophies, they end up with these philosophies?
Justice Scalia is making two points here, and they're both false.  The first point is that the divisions that account for ideological lineups on the Supreme Court are based in differing views about interpretive methodology.  But both casual observation and econometric regressions confirm that the divisions on the Court closely track political divisions.  E.g., the Court's conservatives vote for conservative outcomes, and the Court's liberals vote for liberal outcomes in all of the following cases: abortion, affirmative action, campaign finance, church-state separation, death penalty, gay rights, gun rights, and states' rights.  (I could expand the list if I were to include statutory cases involving environmental protection, labor, and other topics.)  What is Justice Scalia's account of this remarkable coincidence that methodological differences between originalism/textualism and purposivism produce divisions that just about exactly track political divisions?

His second point suggests an answer to that question but it too is plainly wrong.  Justice Scalia suggests that whereas Republicans have been appointing "restrained" Justices, "Democrats have been looking for the opposite," i.e., judicial activists.  But this is wrong because the breakdown between conservatives and liberals has nothing to do with the restrained/activist dichotomy.  Consider the eight subjects I listed.  On four of these--abortion, church-state separation, the death penalty, and gay rights--liberal Justices vote to strike down the outputs of elected bodies, while conservatives want to defer to the democratic process.  But on the other four--affirmative action, campaign finance, gun rights, and states' rights--it's the conservatives who want to strike laws down and the liberals who want to uphold them.  And I don't think my list exhibits much of a selection bias one way or the other.  These are the most contentious, most divisive issues on the Court, and the divisions look much more political than methodological.  Judicial restraint and judicial activism simply have nothing to do with it.

Perhaps there is an underlying correlation between methodology and politics?  Is it possible, in other words, that the reason why Republicans pick originalists is that originalism leads to politically conservative results, while Democrats pick dynamic purposivists because that method leads to politically liberal results?  I think there is a little something to this hypothesis.  Originalism, by its nature, is backward-looking, and thus conservative or even reactionary, in the literal sense.  But given the generality of the constitutional text, all interpretive methods are sufficiently manipulable to produce a wide range of answers when called upon to do so.  In their day, Hugo Black was a liberal originalist and Felix Frankfurter was a conservative purposivist.

This is not to say that judging is all politics.  To avoid cognitive dissonance, judges and Justices tell themselves (and believe) that they are not simply channeling politics--and from time to time that will be true.  Thus, CJ Roberts and Justices Breyer and Kagan will get enormous mileage from their Obamacare votes, even as the overall pattern even in that case was quite ideological.  Likewise, Justice Scalia seems to get a kick out of his own constitutionally liberal streak in Confrontation Clause cases, even as he professes to be a law-and-order conservative.  For my money, I think Chris Eisgruber had it about right in saying (in his book, The Next Justice) that Justice Scalia, on policy grounds, is not so much of a law-and-order conservative in this area, but I won't rely on that hypothesis.  Instead, I'll note simply that the fact that Justices occasionally surprise us by deviating from the ideological script hardly shows that political ideology isn't doing most of the heavy lifting.