Wednesday, July 01, 2015

Why Justice Scalia Should Seriously Consider Retiring

by Eric Segall

Justice Scalia is 79 years old and has served on the bench for almost 30 years. In 1995, I wrote an article in part defending his rules-oriented jurisprudence from what I thought were unfair attacks from Professor Laurence Tribe and a budding young scholar named Mike Dorf. But that was then. Now, Justice Scalia has betrayed his own principles, and acted so inappropriately so often, that he should seriously consider retiring from the bench. His own legacy, and the good of the country, are both very much at stake.

As far as his votes and written opinions are concerned, this term alone shows how Justice Scalia has veered far away from any reasonable level of internal consistency. His dissent in the same-sex marriage case was full of wild accusations that the Justices in the majority were failing to act as proper judges by invalidating state laws prohibiting same-sex marriage. For example, he lamented the “practice of constitutional revision by an unelected committee of nine,” and said that any “system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” As I’ll discuss later, he also leveled quite personal attacks at Justice Kennedy. 

There were many more statements in the opinion charging that the majority was improperly substituting its views of the law for those of the people of the fifty states. This call for judicial deference, however, is completely inconsistent with numerous other Justice Scalia votes and written opinions this term. In fact, he voted to strike down so many important laws that he should be embarrassed by his stridency in his same-sex marriage dissent.

Earlier this term, Chief Justice Roberts sided with the liberals in a 5-4 decision upholding Florida’s very modest regulation of judicial campaigns. Scalia’s dissent alleged that Roberts’ decision “flattens one settled First Amendment principle after another,” and “was more than one should have to bear.” In other words, Scalia would have struck down the state law trying to place just a few reasonable restrictions on the coercive nature of judicial requests for campaign money.

Although he didn’t write separately, Justice Scalia also voted with Justice Alito to reverse Texas’ decision refusing to issue a special Confederate flag license plate. Neither of these two first amendment cases involved state laws that clearly violated the text or history of the Constitution, yet Justice Scalia in both cases would have reversed the decisions of the people.

Perhaps even more strangely (and inconsistently), Justice Scalia wrote a scathing dissent when the Court upheld by a 5-4 vote a ballot initiative in Arizona that created a bi-partisan redistricting commission. This case involved a decision by the people of Arizona on a core issue of democratic self-government (the people were tired of partisan posturing when it came to the vital task of dividing the state into voting districts). Yet, once again Justice Scalia would have reversed the decision of the people and replaced it with his own.

Although Scalia stated that there was no proper jurisdiction over the case, he also wrote that the majority’s “resolution of the merits … is so outrageously wrong, so utterly devoid of textual or historic support, so flatly in contradiction of prior Supreme Court cases, so obviously the willful product of hostility to districting by state legislatures, that I cannot avoid adding my vote to the devastating dissent of the Chief Justice.” In reality, Chief Justice Robert’s dissent was only “devastating” to those Justices willing to freely replace the decision of the people of Arizona with the decision “of an unelected committee of nine,” on an issue where the constitutional text was in fact ambiguous, its history contestable, and the prior case law on point mixed.

In previous terms, Justice Scalia has voted to invalidate affirmative action plans by local school districts (parents, teachers and board members acting together in true democratic fashion). He also has voted to strike down virtually all campaign finance reform laws as well as the key section of the Voting Rights Act that was re-enacted by a unanimous Senate, an overwhelming majority in the House, and signed by President George W. Bush. In none of these cases were the text and history of the relevant constitutional provisions clear.
Justice Scalia’s excessive rhetoric in the same-sex marriage decision about “unelected lawyers” and “commissions of nine people” rings more than hollow given Scalia’s frequent votes to overturn other important decisions by federal, state, and local legislative bodies. His accusations are in fact hypocritical to the core.

Just being wildly inconsistent, however, is no reason for a Supreme Court Justice to resign. In addition to his voting record, Justice Scalia has leveled such personal attacks at other Justices that he is becoming, if he has not already become, a caricature of the bitter old man despondent about the “good old days.” Although I could write an entire law review article just detailing Scalia’s improper personal insults, it is enough to simply quote from his same-sex marriage dissent: “If, even as the price to be paid for a fifth vote, I ever joined an opinion or the Court that began [quoting Justice Kennedy’s majority opinion], I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

Not only is this an unduly harsh attack on the Justices in the majority, but the suggestion that one or more of the Justices had to pay a “price” for Justice Kennedy’s vote is an irresponsible airing of the Court’s dirty laundry. He also said that the “opinion is couched in a style that is as pretentious as its content is egotistic.” Those charges, that the prose was “pretentious” and the writer “egotistic” have nothing to do with proper application of law to facts and everything to do with personality. They are unbecoming of a Supreme Court Justice.

Justice Scalia has also acted in ways that make it reasonable to think that he has lost the ability to responsibly perform his job. On Monday, he took the unusual step in a death penalty case of summarizing a concurring opinion from the bench. Not only is this rare, but he also again chastised the Justices who voted to overturn the same-sex marriage bans and, according to Dahlia Lithwick who was in the courtroom, acted in “weird” and “odd” ways by going back and forth between the death penalty case at issue and the same-sex marriage decision of the week before. This behavior led noted law professor Rick Hasen to ask “Is Scalia losing it?”

He has also made a few mistakes recently that suggest he may not be quite as careful as he used to be. In an opinion on environmental law, he badly misstated the holding of a previous case that he himself had written, leading law professor Dan Farber to call it a "cringe worthy blunder." The opinion had to be changed. And, in Atlanta, not too long after the Court struck down the formula in the Voting Rights Act, Justice Scalia could not remember a vital part of the rationale for that historic decision.

There was a time when Justice Scalia was a commanding influence on the Court, urging upon the other Justices an originalist methodology, a rule-like approach to judging, and only occasionally using his nuclear powered pen to detonate personal insults at the other Justices. But, with each passing term, his votes, his rhetoric and even his behavior are eating away at that legacy. Other Justices, such as Thurgood Marshall and William Douglas, stayed on way too long and Justice Scalia is in danger of making the same mistake. He should retire before it is too late.


Hashim said...

Can you identify a single instance where Justice Scalia voted to invalidate as unconstitutional a legislative practice that was *universally accepted* at the time of the enactment of the relevant constitutional provision? I'm confident that you can't, because Scalia has repeatedly said that such laws are not unconstitutional. And I'm certain that you haven't in the examples you've given (campaign-finance restrictions; viewpoint discrimination on state license plates; non-legislative congressional redistricting; affirmative action), none of which were universally accepted at the time of the relevant constitutional provision.

Thus, Scalia isn't being internally inconsistent. You've merely pointed out that he's voted to invalidate laws where (I'll assume for present purposes) the text and history *do not clearly support* invalidation, but where he thinks that invalidity is the best reading of text and history. But he's never voted to invalidate laws where the text and history *clearly do not support* invalidation. And that's what he's objecting to here -- and precisely why he's so outraged.

JMcG said...

Shelby County should fit the bill.

Hashim said...

No, Shelby County most certainly does not fit the bill. Sections 4 and 5 of the VRA were completely unprecedented and extraordinary legislation enacted in 1965. It is both speculative (and quite implausible) that such legislation would have been *universally accepted* in 1868/1870 (or even universally accepted at that time in the Northern States). Indeed, even in 1965, it was highly controversial, and there was a dissent in Katzenbach. That's a far cry from the traditional definition of marriage, which every State had in 1868, and not a single person anywhere at the time thought that the 14A's ratification invalidated that definition.

Eric Segall said...

There is little chance those who wrote the 14th Amendment would have though racial preferences for blacks violated EP. There is little chance the framers would have thought Congress couldn't commandeer state legislatures if it was exercising an enumerated power. Much of Scalia's first amendment jurisprudence is inconsistent with the original meaning as his takings jurisprudence And the 11th Amendment? His reading ignores clear text. I document all this and more here:

JMcG said...

The majority opinion allows that secs 4 & 5 were constitutional in 1965. Scalia signed on to this view. So a fortiori (on his view) it must be that secs 4 and 5 would have been constitutional in 1870. Scalia's vote to invalidate secs 4 & 5 thus constitutes an example where Scalia invalidated as unconstitutional a practice that he believes would have been constitutional at the time of the enactment of the relevant constitutional provision.

Joe said...

I think various defenses can be made in individual cases & if he's being inconsistent, don't think he's being more so of late. The one thing is seems to be doing more so of late is venting like some sort of talk show host on the radio.

I think Printz was probably wrongly decided at least given the mild nature of the duty but the commandeering issue (which controlled a majority, not just him) probably is open to debate. Quoting the uber-nationalist Hamilton talking about the issue in a political op-ed doesn't settle things there. Also, the quote in that article linked probably can be parsed in various ways.

Anyway, challenging Scalia/Thomas on originalist ground is probably a fun sport; it isn't the issue at hand I gather since again he's being doing this for years. If he should think about retiring it again that he seems to be amping up the old Grandpa antics and making himself look foolish. It is doubtful he has it in him to retire during the Obama Administration though if Hillary Clinton wins, it very well might be the case that with a Republican Senate, the pick will be as or better by his lights then if he waits.

Eric Segall said...

I don't think he will retire, just that he should. My prediction--he will make a total fool of himself before he goes and it will be sad for everyone, like Douglas and Marshall.

Hashim said...

Again, Eric, you're comparing apples and oranges to manufacture "inconsistency." You're repeatedly forced to say "there is little chance" that certain laws violated the original understanding of the constitution precisely because the laws you cite -- race-based affirmative action, commandeering of states, etc -- *did not exist* at the time of the relevant constitutional enactment, and thus one must *infer* the original understanding. Here, by contrast, every State in 1868 already had the traditional definition of marriage, and literally no one thought that definition was abrogated by the 14A. I'm quite confident that Scalia has never invalidated a law in such circumstances -- to the contrary, he's repeatedly said that such laws demonstrate the meaning of the Constitution, rather than vice versa -- and thus he's not in any way being inconsistent in arguing that doing so fundamentally distorts the meaning of the Constitution.

Also, although it's largely irrelevant to the point here, your confidence about the original validity of race-based affirmative action is quite misplaced. There's a pretty obvious difference between: 1) the federal govt (which isn't covered by the EPC at all) providing benefits to people on the basis of their status as former slaves (rather than on the basis of their race); and 2) a State (which is bound by the EPC) providing benefits to people simply on the basis of their race (without any regard whatsoever to whether they've actually suffered any of the harms from illegal racial discrimination). I'm quite skeptical that any law of the latter type existed in 1868, and it'd be pretty surprising to me if the public would have supported such a race-based spoils system wholly divorced from remedying slavery. (While Scalia did depart from the original understanding in applying equal-protection principles to the fed govt in Adarand, that was stare decisis under Bolling v. Sharpe, and the Govt sure wasn't arguing that Bolling should be overruled.) I expect similar flaws underlie your "originalist" analysis of the other laws you mentioned. But the more fundamental point for present purposes is that, even assuming arguendo that Scalia has made mistakes in *inferring* the original understanding in circumstances where the law at issue didn't exist at the time of the relevant constl provision, that's in no way inconsistent with his insistence that the original understanding should control where the law at issue did exist at the time of the relevant constl provision and it was universally accepted as valid. Simply put, you may disagree with Scalia's express or implied assessment of the original understanding in certain cases, but you can't identify any cases where Scalia departed from what he himself believed to be the original understanding in the absence of precedent so requiring.

Hashim said...

JMcG: two errors w/r/t your use of Shelby Country.

First, although I might be wrong, I don't think Shelby County ever says that Sections 4 and 5 were constitutional in 1965. Rather, it details at length the reasons the Ct previously gave for so holding, and then shows why those reasons do not apply to the 2006 reauthorization's coverage formula. But I don't think it ever says that it agrees with those reasons as applied in 1965, and any such statement would have been dicta regardless. So you can't use Shelby County to attribute to Scalia the view that Sections 4 and 5 were constitutional in 1965 (and thus 1868).

Second, in any event, the whole point of Shelby County is that it was irrational to use the 1965 coverage formula in 2006. Thus, even if the 1965 statute would have been viewed as constitutional in 1868, that doesn't mean the 2006 statute would have been viewed as constitutional in 1868. It'd be like if the 1868 Congress had adopted Section 5, but had used election data from 1820 to set the coverage formula in Section 4: obviously irrational, even if using 1868 election data would have been permissible.

Eric Segall said...

Roberts framed the issue in Shelby County disingenuously. The issue was whether Congress acted in an "appropriate" manner by keeping the covered states covered (and not covering the rest). Have you read the 15th Amendment? There were 21 hearings and 15,000 pages of testimony on that exact point. That is why Roberts had to make up non-textual, non-originalist theory of equal state sovereignty (which Scalia signed on to, though then in Atlanta denied existed).

You are also wrong all the way down on AA. The freedman's bureaus and other programs applied to people other then the released slaves and, in any event, the burden should be on those claiming to be both originalists and real judges to present evidence that the challenge statute or program is inconsistent with original understandings. That is why neither Scalia nor Thomas nor anyone else on the Court as ever discussed AA and originalism in a serious way (except the liberals who know such an inquiry supports their arguments).

Asher said...

Given his positions - which haven't changed much, so it's not as if the (arguable) inconsistencies you describe are a product of his old age - he's still doing really quality work. In fact, I would argue that he's the best lawyer for the positions he takes in the country. He just wrote a book on statutory interpretation that his colleagues alone have already cited a dozen times; as tendentious as parts of it are, it's a serious piece of work that's catching on because he's still a remarkably persuasive writer. His dissent in Burwell, though wrong, is excellent, a vast improvement on the D.C. Circuit opinion taking his position, as well as anything in anyone's brief on his side of the case, including the amicus briefs of some very smart law professors. He actually has halfway plausible explanations for the qualified-individual clause, the "such" problem, the way this provision is buried in a definition of coverage months, etc. He fought Kagan to something like a draw in Michigan v. EPA on Monday; he's the only person on the Court (with the possible exception of Roberts) who could do that in a tough regulatory case. After years of writing solo dissents on the issue, he convinced a 6-Justice majority of the Court to invalidate a very problematic (though perhaps not actually unconstitutional) sentencing enhancer in Johnson, which the Court had repeatedly held was valid in the last decade. That's no small feat. In Abercrombie, he wrote a textualist, pro-employment-discrimination-plaintiff opinion for a nearly unanimous Court. And a couple years ago he got a majority of the Court to sign on to an opinion that brought a lot of much-needed clarity to the Chevron doctrine and expanded its scope, thereby ceding his and the Court's authority over a vast swathe of matters to the Executive. This is something you, in particular, should be happy about.

As for the death case, he read from a concurrence; is that so strange? Kennedy reads from his solo concurrences when he thinks or hopes lower courts will treat them as Marks holdings. In this case Breyer dissented on an issue no one in Glossip raised and the Court didn't grant cert to decide, and Scalia responded. Breyer read from his dissent, though it wasn't about anything argued in the case, and Scalia read from his concurrence. They're on a par with each other. I find his First Amendment near-absolutism disappointing (and somewhat out of left field - what happened to the guy who recently dissented in Alvarez and Agency for International Development? - dissenting in the latter on similar government speech grounds to those he rejected in Walker), but Scalia would tell you he's enforcing an enumerated right there while Kennedy's enforcing a chimera in Obergefell. The same's true of the Elections Clause in Arizona, where he takes a quite textually plausible view. Yes, the majority has a reasonable view too, but so what? He never claimed to be a Thayerian. So I think it's pretty ridiculous to predict he'll end up like Douglas and Marshall on the basis of this stufff. Douglas was never interested in legal reasoning outside of his area of expertise, and then he had a massive stroke and refused to retire. Marshall was a less extreme case, but was always fairly lazy by the standards of the Court, and became extremely marginalized by the end of his career. Scalia's a lawyer's lawyer, is in fine health, will probably never become anywhere near as marginal a vote as Marshall did, and is, I suspect, too proud to stay on the Court if the quality of his work declined substantially.

Hashim said...

Eric, although I continue to disagree with you about the originalist bona fides of both Grutter and Shelby (see below), the more important point for present purposes is that you've yet again failed to identify a situation where actual laws that existed at the time of the relevant constitutional provision were universally accepted as constitutional and yet Scalia nevertheless invalidated such laws despite conceding their validity under the original understanding. That is the indefensible act in Obergefell to which his heated rhetoric was directed, and he's perfectly consistent in that fundamental respect -- whether or not he's entirely consistent in inferring original understanding in the absence of such clear historical evidence (or in explaining his thinking in cases where no party or Justice challenged him on originalism grounds).

Anyway, as for affirmative action, first of all, you continue to reference the *federal* freedman's bureau. To borrow your phrase, have you read the Equal Protection Clause ("No State shall ...")? Even apart from that threshold error, it doesn't matter if the freedman's bureau applies to "people other than the released slaves." It matters whether it applied to "people based on their race," as affirmative action does. Can you identify, or even allege, state (or even federal) laws that treated otherwise similarly situated people differently based solely on their race (rather than based on ex-slave status, wealth, etc.)?

Likewise, as for Shelby, yes, I've read "appropriate" in the 15A. Have you read Professor Persily's analysis of the appropriateness of Congress' decision in its vaunted 21 hearings and 15,000 pages of testimony? "The most one can say in defense of the formula is that it is the best of the politically feasible alternatives or that changing the formula would sufficiently disrupt settled expectations that it is better to go with the devil we know than one we do not." 117 Yale L.J. 174, 208. And that's from a *supporter* of Section 5. If that's what you think counts as "appropriate," that term has no meaning.

Joe said...

Douglas lingered on after a stroke.

Not sure what Marshall did really to embarrass himself except for one or two times I have seen pointed out. It seems a stretch to deny Scalia hasn't been acting out more later & having more over the top dissents. Guess some can say 'ah who cares' and yeah figure it isn't enough to say he should retire if he can do his job. His overall work product seems the same.

Con Law Junkie said...

How about Scalia's vote in Gonzales v. Raich? If I recall correctly, one could hear the chagrined, exasperated exclamations of federalist-society types yelling "et tu, Brute?" around the world when that decision issued. Why? Because Scalia had to compromise his sanctimonious, allegedly purist brand of con Law to uphold the CSA against that as-applied challenge. Inconsistent of him? Heck yeah!! But he clearly could not bring himself, on a practical/personal/political level, to vote for Ms. Raich and "against" the CSA, thereby undermining its full efficacy and "cause."

Like Scalia himself, Scalia groupies refuse to acknowledge (i.e., are in denial) that, although bright and larger than life, Scalia is just as fallible as any other judge or Justice.

Unknown said...

Hash: Justice Scalia once wrote (and I believe, still holds) that he would invalidate laws that permit public flogging or branding of the right hand to be used as punishments. Because he is a faint-hearted sweetie pie. And this raises the question: if he is faint-hearted about hand branding, why isn't he faint-hearted about other things? A faint-hearted originalist, indeed an originalist who adulterates his originalism with stare decisis, is an inconsistent originalist.

In many cases, I respect (even though I disagree with) the content of Justice Scalia's opinions. But the arrogance. The overweening arrogance. Head in a bag? Are you kidding me? For a man who doesn't have the slightest clue what meaning is, not having studied it in the way the experts have, to lecture his colleagues about their departures from original meaning is a travesty. The canons, despite their legal pedigree, are an originalist farce. In many (perhaps most) cases, they are rules of thumb for the discovery of speaker's meaning rather than semantic meaning. And yet speaker's meaning is a matter of intention, the very sort of thing that Justice Scalia says that we have no business appealing to. Justice Scalia couldn't tell the difference between semantic intentions and application intentions if it hit him in the face. So his originalist reasoning is consistently adulterated by appeal to matters that should, given his methodology, be completely irrelevant. And this is just the beginning.

Those who have sufficient evidence to know that there is something important that they don't know shouldn't throw insults. And they should apologize to the rest of us for thinking that they know more than they actually do.

Asher said...

On the original post, I just wanted to add that picking on Scalia for not mastering Roberts's equal sovereignty rationale in Shelby County, in a Q&A, is really silly. He didn't write the thing. Next time you see one of the Justices who joined Kennedy's opinion in Obergefell, quiz them about his four principles and traditions (e.g., the right against loneliness). Or don't, because you'd only embarrass them. As Scalia hinted in footnote 22 in Obergefell, sometimes people join opinions they're not wild about to get the result they desire. Then sometimes they forget what those opinions said.

On Joe's "It seems a stretch to deny Scalia hasn't been acting out more late[ly]", back in 1992, in Casey, Scalia more or less invited Kennedy and O'Connor to go look at a painting of a miserable post-Dred Scott Justice Taney and contemplate their own futures. In 2002, he said that the Court's protecting same-sex sexual relations was a "massive disruption of the current social order," and expressed concern for the freedom of "many Americans" who didn't want "persons who openly engage in homosexual conduct as partners in their business." In 1996, he reasoned that animus against people who engage in homosexual conduct was just as valid a basis for a law as animus against those who engage in "cruelty to animals." Scalia writes heated dissents in certain kinds of cases and always has; this term had a couple of those cases, so we got some heated dissents.

Asher said...

Sam: "In many (perhaps most) cases, they are rules of thumb for the discovery of speaker's meaning rather than semantic meaning. And yet speaker's meaning is a matter of intention, the very sort of thing that Justice Scalia says that we have no business appealing to."

Scalia's canons are basically adapted Gricean maxims, right? Two questions: how one can interpret without that stuff - wouldn't one have to ignore all sorts of obvious implicatures, making laws much more ambiguous than any reasonable reader would take them to be? Second, can't he coherently respond to your concern in a couple ways? One being that he doesn't care about intent, but he *does* care about the reasonable expectations of the regulated criminal/business/taxpayer reading these statutes, and ordinary readers read with Gricean maxims in mind (implicitly assuming that Congress employs these maxims in writing their statutes when that in fact isn't always the case, but no matter - what he wants to give effect to is the regulated's reasonable expectations). Two, he might say that he does care about some idealized collective intent of Congress (though I'm pretty sure he says he doesn't), but that that intent is only knowable from the law they wrote, because it is only that bill that everyone in Congress saw, that the President signed, and through which the body as a whole manifested their intentions. Intentions of drafters or proponents, on the other hand, aren't necessarily shared by the enacting body or the signing President. I should admit here that I put just your point to Scalia when he came to a class in law school I attended, and his response was neither of the ones I gave. Rather, he basically said that his canons divine semantic meaning. He unfortunately gave the example of "tacks, pins and nails," in which he said "nails" really could only "mean" metal nails in some grammatical way. This is absurd, but to be fair, it was on the spot and he's probably said something much more sensible on this in his published writings.

Con Law Junkie said...

I have to agree, S. R.

Scalia, unintentionally I believe, gave the public all the insight it needs to analyze his overall emotional development and/or state of mind---for the purposes of arm chair psychology---when he made a notation in brackets next to the term "spirituality" to state "whatever that means"---which is nestled in the broader context of his sarcastic, bombastic screed against his peers and others. I am not at all surprised that he seems genuinely perplexed by the meaning of individual spirituality. That just jumped off the page when I read his dissent.

Justin said...

Oh, no.

::grabs popcorn::

Michael C. Dorf said...

After careful consideration of these comments, I am persuaded by the defenders of Justice Scalia that Eric is wrong about him: He has ALWAYS been insufferable in questioning the motives of his colleagues while insisting--contrary to every empirical study and the obvious ideological valence of all but a handful of his votes--that he alone follows the objective impersonal law; he has repeatedly insulted the intellects and integrity of those colleagues; and the uptick in vitriol we see in the last year or so marks only a difference of degree rather than kind.

Justin said...

PS - Appropriate must mean something because it is a word in a text, and without any regard to how anyone else would have interpreted the term at the time, I will find something "inappropriate" about legislation I like and give the Supreme Court essentially policy-based veto power over that legislature - it appears that Scalia and his acolytes are spending time with Randy Barnett and the magical 21st century meaning of the word "proper" in the N&P clause.

I am *still* waiting for immigration reform to be successfully challenged on the basis that the Republican form of Government clause invalidates any Democratic initiatives.

Justin said...

(the above comment should have referred to "legislation I dislike" and "veto power over that legislation") Sorry

Hashim said...

"Obvious ideological valence of all but a handful of his votes" = entire Confrontation Clause jurisprudence; entire Apprendi jurisprudence; entire punitive-damages jurisprudence; entire dormant commerce clause jurisprudence; countless important 4A cases (Kyllo, Jones, etc.); myriad important 1A cases (flag-burning, etc.); Employment Division v. Smith (unless you've attribute to him the Machiavellian, but false, theory that Christians will always get statutory exemptions).

I could go on, but I won't, for a simple reason: most of the liberal Justices that Mike venerates can't even identify a single contested area of constitutional doctrine where they've broken ranks with the other liberals to support a conservative result when it mattered, much less this many times across this many different constitutional provisions (as vividly illustrated by the fact that this term, like virtually all others, the liberals block-voted in virtually every important contested case, while Scalia, Thomas, and Roberts all crossed over at various times. As for Kennedy, he of course is all over the map, but that's because he's sometimes conservative and sometimes liberal, but always ready to constitutionalize whatever he thinks is a swell idea--always politely, though, so he's a model Justice indeed.

Shag from Brookline said...

Watching hash being made is almost as much fun as watching sausage being made. (Of course, hands down, an Italian sausage sub with onions, peppers and mushrooms is the winner, with no dissents.)

Michael C. Dorf said...

Chris Eisgruber's discussion of Justice Scalia's views about criminal procedure in his book The Last Justice are highly informative. Eisgruber argues very persuasively that what is often presented as evidence of Justice Scalia's principle is in fact his quirky ideological preference in this area. Justice Scalia's (non-originalist) First Amendment jurisprudence more broadly easily explains his vote in Texas v. Johnson. The fact that he doesn't LIKE flag burners doesn't mean he doesn't think, on policy grounds, that they ought to be protected. The fact that Justice Scalia sometimes SAYS his votes construing unclear constitutional text to produce results he SAYS contradict his policy preferences is not persuasive evidence that that is what is going on. Or if it is, then so is Justice Stevens's similar profession in Kelo.

As for the liberals more broadly, you clearly have no idea what liberals' policy preferences actually are. The neoliberal/neoconservative state that has been erected in the U.S. since Ronald Reagan's election is so far from what liberals would prefer across so many policy domains that the failure of ANY LIBERAL EVER TO SIT ON THE SUPREME COURT to vote for robust constitutional welfare rights or positive rights more broadly--even after Frank Michelman urged them to do so in a Harvard Law Review Foreword--can only be taken as reflecting a deep commitment to principle over policy preference.

None of this is to say that the liberals are more committed to or capable of setting aside their values and policy preferences when the law is unclear than are the conservatives, or that law poses no constraint at all. It is to say that it is a particularly galling form of arrogance for Justices (and their defenders) to see in the views of everyone but themselves the influence of values and ideology. The conceit of principled conservatives and result-oriented liberals is a shibboleth that has been exposed as empty by over a hundred years of legal realism and thirty years of large-n regressions. One can quibble with details but the big picture clearly supports the claims of the realists, and Justice Scalia falls within the heartland of the ideological models. Arguing against the universality of values-driven judging on the Supreme Court is like arguing against the geocentric theory or young Earth creationism but equally inefficacious in persuading those who have faith in these creeds--so I shan't persist on this thread.

Eric Segall said...

What Mike said!!

Hashim said...

Hilarious. My parting thoughts:

1. So the numerous times that Scalia breaks from other conservatives to side with positions supported by liberals, it's all because he just personally happens to have liberal policy preferences on those particularly issues, which you've somehow intuited (don't have Eisengruber's book handy, so not sure what his basis was). How convenient for your theory. And how absurd, especially w/r/t things like the dormant commerce clause and punitive damages -- you're really going to argue with a straight face that Scalia is opposed to free markets and supports jackpot jury verdicts?

2. No liberal ever to sit on the supreme court has voted for robust constitutional welfare rights or positive rights more broadly?!? You may want to re-read, for example, the dissents in San Antonio v. Rodriguez and DeShaney v. Winnebago.

3. Admittedly, if by "robust," you mean "as far as Frank Michelman would like," then I'm not sure if any liberal Justice has ever gone that far. That said, I'm also not sure any liberal Justice has ever rejected his position in a case where it was argued. And even if there are such cases, I suspect that they simply adopted a more modest liberal position, not that they supported the conservative position. The mere fact that the liberals on the Court have never pursued the most quixotic far-left position imaginable hardly demonstrates that they're not block-voting ideologically. (Rather than a deep commitment to principle over policy, it might, for example, reflect an instinct to avoid *futilely dissenting* on grounds that would be viewed as off-the-wall to the public at large, rather than the sub-set who reads HLR Forewords.) What would demonstrate the absence of liberal block-voting is an important area of constitutional doctrine where the relatively more liberal position would have prevailed if the liberals had stuck together, but one or two defected to the relatively more conservative position. Of course, that didn't happen a single time this Term, and my impression is that it virtually never happens, whereas the converse situation with conservative defections happens quite a bit. But I'd be very curious if they've done "large-n regressions" on cross-over voting (yet not at all surprised if they conveniently haven't).

Hashim said...

PS. I can't leave unmentioned the irony that, in a post by Eric and comment by Mike that started by castigating Scalia for his intemperate tone, you've ended with an ad hominem attack that my position is based on unreasoned "faith." It certainly doesn't bother me that you've taken that rhetorical tack, but the hypocrisy is amusing.

Joe said...

The bottom line that annoys me about Scalia and shall we say "his ilk" is the sense of arrogant self-righteousness like they are -- unlike those living constitutionalists, those liberals -- are principled sorts who apply "the law" and not their own "policy preferences." And, they do this by "neutral" principles like text and originalism. The other side is so patently wrong they warrant the sort of disdain that is shown by Scalia.

Oh please. I'm not going to join those who I generally agree on principle to call him (and Thomas etc.) out as just a hack or something. But, this sort of thing is patent b.s. BOTH sides have principles. They greatly disagree on them. BOTH sides apply text. They greatly disagree on how to do that. Breyer and Scalia both wrote books on their approaches; I read both. History can be applied various ways -- this is apparent even without my decades of causal and at times somewhat less causal study of it. And, Scalia et. al. on his side shows personal biases, even if not intentional (liberals are quite accepting of unintentional discrimination existing), on applying principles. Which have various opt outs (like selective use of precedent) that make them weaker than they seem.

The simplistic b.s. tone he puts on in public and some dissents when he is really "on" is worthy of scorn. I think his arguments at time reasonable if often wrong. And, his jurisprudence is not as simplistic as his radio talk show sound bite approach he sometimes uses when he hogs the camera. The approach that the public and some politicians sadly latch on to, giving us a caricature.

Unknown said...

Part 1 of 2

Asher: Thanks for your comments!

"Scalia's canons are basically adapted Gricean maxims, right?"

I think that the canons are far worse than the Gricean maxims, because the canons are full of holes and exceptions, whereas the maxims aren't.

"Two questions: how one can interpret without that stuff - wouldn't one have to ignore all sorts of obvious implicatures, making laws much more ambiguous than any reasonable reader would take them to be?"

Ah, I don't believe that Scalia thinks that implicatures are obvious, and it seems to me that the conversational ones (unlike the conventional ones) aren't. Besides, implicatures go beyond semantic intentions, because they concern what the utterance of a sentence in a particular context conveys, beyond what it semantically expresses. Justice Scalia is stuck in a dilemma. Either he thinks that part of what the reasonable reader should do is determine what the sentences used by the framers pragmatically convey (in which case his theory of interpretation requires us to look at framers' pragmatic intentions, something with which he officially disagrees) or he thinks that the reasonable reader shouldn't pay attention to pragmatic factors (in which case he has no business appealing to the canons).

Sometimes a law semantically expresses something clear, but Gricean considerations suggest that the legislature also pragmatically conveyed something else. How should we read the law: in accordance with what it semantically expresses or in accordance with what it pragmatically conveys? Gricean mechanisms makes things *worse*, not better. Besides, the evidence often underdetermines what the legislature might have been pragmatically conveying, if anything.

"Second, can't he coherently respond to your concern in a couple ways? One being that he doesn't care about intent, but he *does* care about the reasonable expectations of the regulated criminal/business/taxpayer reading these statutes, and ordinary readers read with Gricean maxims in mind (implicitly assuming that Congress employs these maxims in writing their statutes when that in fact isn't always the case, but no matter - what he wants to give effect to is the regulated's reasonable expectations)."

See previous comment.

"Two, he might say that he does care about some idealized collective intent of Congress (though I'm pretty sure he says he doesn't), but that that intent is only knowable from the law they wrote, because it is only that bill that everyone in Congress saw, that the President signed, and through which the body as a whole manifested their intentions. Intentions of drafters or proponents, on the other hand, aren't necessarily shared by the enacting body or the signing President."

Justice Scalia doesn't (at least, not officially) believe that we can or should divine the collective intentions of the lawmakers from the laws they wrote.

Unknown said...

Part 2 of 2

"I should admit here that I put just your point to Scalia when he came to a class in law school I attended, and his response was neither of the ones I gave. Rather, he basically said that his canons divine semantic meaning. He unfortunately gave the example of "tacks, pins and nails," in which he said "nails" really could only "mean" metal nails in some grammatical way. This is absurd, but to be fair, it was on the spot and he's probably said something much more sensible on this in his published writings."

This is totally great. I can't say I am surprised. Yes, he thinks that canons divine semantic meaning. This tells you just how confused he is, because he can't tell the difference between semantics and pragmatics, and he doesn't see the canons as particularized ways of trying to get at what is being pragmatically conveyed. Yes, his favorite canons are ejusdem generis and noscitur a sociis. He returns to them again and again in his writings, both in opinions and in more theoretical stuff. Semantically, "nails" means "nails", whether metal or wooden or whatnot. The context of "tacks, pins, and" suggests that the legislature may have intended to convey a content that covers just the metal nails among the nails. But officially, Justice Scalia shouldn't be appealing to the canons, because the canons do not tell us what the relevant word (semantically) *means*.

Unknown said...

P.S. It's lovely how the canons get applied one way when it comes to "tacks, pins, and nails", and get applied a different way when it comes to "records, documents, or tangible objects". In the first, "nail" is held to mean "metal nail" (as opposed to "nail") because of context, but in the second, "tangible object" is held to mean "tangible object", in spite of context. So the situation is even worse for Justice Scalia than I suggested in my earlier comments. For he applies the canons in different ways depending on the way the wind is blowing. So much for fixing the meaning of a legal provision in a way that avoids the problem of judges imposing their policy preferences on the rest of us!

What is really shocking is not Justice Scalia's half-baked semantic-pragmatics. Nor is it his inconsistent application of the half-baked stuff. What is really shocking is the vitriol he throws at those he accuses of being inconsistent or unprincipled. For someone *that* ignorant to be sneering at his colleagues is really beneath contempt.

Justin said...

It might be worth pointing that neither DeShaney nor the SA school case involved positive rights. Both involved instead contingent rights. The rights claimed in the former only attached because the state action incapacitated the plaintiff, and the right asserted in the latter was merely one of equal treatment. In both cases, under the view of the liberal Justices the state could have easily avoided a positive obligation by not taking the affirmative step that would trigger the obligation.

Hashim said...

Justin, that's not quite an accurate description of DeShaney, but you nonetheless raise a fair point that the dissenters' position in both DeShaney and SA relied on *some* govt action so they weren't *purely* positive-rights positions. That said, the reason I raised them in response to Mike is that the gist of those dissents strongly suggests that they'd have voted the same way even if that limited govt action were removed -- i.e, if SA had simply privatized its schools and thus left poor students even worse off, or if Winnebago hadn't provided child-protective services at all. They certainly did not say that they would have flipped their vote in those circumstances -- at best the opinions are silent on the question. Fair enough, though, that they're not a direct refutation of Mike's assertion that no liberal Justice has ever embraced a positive-rights claim.

Justin said...


If people seem frustrated and unconvinced with your argument, it might be because even your concessions seem unnecessarily smug and overreaching. You say the "the gist of those dissents strongly suggests that they'd have voted the same way even if that limited gov't action were removed," and that their opinions were "silent" on the question.

But SA Schools was an EQUAL PROTECTION CLAIM argument. In the White dissent, the comparison is entirely between Edgewood and Alamo Heights. Marshall specifically states: "Texas has chosen to provide free public education for all its citizens, and it has embodied that decision in its constitution.[53] Yet, having established public education for its citizens, the State, as a direct consequence of the variations in local property wealth endemic to Texas' financing scheme, has provided some Texas schoolchildren with substantially less resources for their education than others. Thus, while on its face the Texas scheme may merely discriminate between local districts, the impact of that discrimination falls directly upon the children whose educational opportunity is dependent upon where they happen to live." Later, Marshall continues, "is true that this Court has never deemed the provision of free public education to be required by the Constitution. Indeed, it has on occasion suggested that state-supported education is a privilege bestowed by a State on its citizens. See Missouri ex rel. Gaines v. Canada, 305 U. S., at 349." (To be fair, Marshall may have voted for a positive right to education if that case had gone up, but he explicitly disclaimed that was what the basis for his position was in SA Schools, making it a lousy example and contradicting your halfhearted retraction).

If anything, it was the conservative - describing that the right to education as one that exists but is satisfied by "adequa[cy]," as invoking positive rights.

Meanwhile, in DeShaney, a similar disclaimer LEADS OFF the Brennan dissent: "t may well be, as the Court decides, ante at 194-197, that the Due Process Clause, as construed by our prior cases, creates no general right to basic governmental services. That, [p204] however, is not the question presented here; indeed, that question was not raised in the complaint, urged on appeal, presented in the petition for certiorari, or addressed in the briefs on the merits. No one, in short, has asked the Court to proclaim that, as a general matter, the Constitution safeguards positive as well as negative liberties."

And the Blackmun dissent makes a similar point: But, in this pretense, the Court itself retreats into a sterile formalism which prevents it from recognizing either the facts of the case before it or the legal norms that should apply to those facts. As JUSTICE BRENNAN demonstrates, the facts here involve not mere passivity, but active state intervention in the life of Joshua DeShaney -- intervention that triggered a fundamental duty to aid the boy once the State learned of the severe danger to which he was exposed.

(This, of course, entirely ignores that the 4 liberals on today's Court are all easily to the right of Brennan or Marshall (or, e.g., Douglas), to the extent that these things can be determined objectively.)

If you want people to engage you, then engage them honestly. Someone is wrong on the internet and all, but I shouldn't have had to waste the last 5-10 minutes of my life making sure people understood you were misrepresenting the dissents in those two cases, after cavalierly claiming earlier that the dissents argued for what they specifically disclaim.

- J

Joe said...

Duty calls:

Hashim said...

Justin -- I'm honestly not sure what you think you're proving over and above my earlier concession that you'd "raised a fair point" that those cases weren't purely positive-rights cases, and so they didn't support my attempt to directly refute Mike's assertion.

Again, you're right that Brennan in DeShaney formally disclaimed relying on a pure positive-rights theory. But he certainly didn't reject a pure positive-rights theory. And his careful qualifications (it "may well be"; the DPC "as construed by our prior cases") were a pretty strong hint about what position he'd take -- those are the sorts of qualifications that judges add when they want to rule the other way if and when the question is presented. Likewise, you're right that Marshall in SA was formally relying on equal protection. But he was relying on the "fundamental rights" strand of equal-protection doctrine, which is a close cousin to substantive due process, and which isn't often invoked by judges who would be totally fine with the State simply eliminating the benefit for everyone. So I do think I'm right that those opinions are at worst "silent" on how the liberals would have voted on the pure positive-rights theory, and at best fairly suggestive that they'd have supported that theory if presented.

Ultimately, though, this specific sub-issue is a side-show to the broader point that I've consistently pressed here -- the real question isn't whether the liberal justices would have adopted the most far-left legal position imaginable, but whether some of them ever break ranks in a contested and important constitutional case to provide the decisive cross-over votes (let alone do so with the frequency of Scalia and some of the other conservatives). And on that issue, neither you, Mike, or Eric have had anything to say. Which of course is perfectly fine, because you're under no obligation to "engage" with me, whether you're "frustrated" or otherwise.

Justin said...


While I can't profess to know the answer, I question the relevancy of the challenge. In particular, there are three problems with your challenge:

1) Unlike the 5 conservatives - a faint-hearted libertarian, a small C conservative, a Scalia, a natural rights originalist, and uhhhh, a law and order Republican, the legal philosophy of the 4 current liberals are pretty consistent. You wouldn't expect them to break ranks that much on major issues for that reason alone.

2) The docket that the Court takes up on major issues is generally (although not uniformly), pushing doctrine rightward. Again, when the debates between the liberals are "when does campaign finance impermissibly restrict people's ability to speak," none of the liberals are likely going to have a different answer to the question "is campaign finance even constitutional in the first place?"

3) There are only 4 liberal justices. When one of the 4 liberal justices breaks ranks and joins the conservatives, it's not a 5-4 decision anymore. It is a 6-3 decision. And then they aren't "breaking ranks in a contested and important constitutional case *to provide the decisive cross-over votes*.

4) So, for there to be a 5-4 vote where the 5th vote for the conservative side is a liberal, there must FIRST be a conservative vote. Then, there must be a liberal countervote. And, in an issue where you have "traitors" on both sides, it must still be deemed "contested and important" to, uhhh, you? This makes the game harder.

Nevertheless, and I'm not going to do the legwork, I am fairly confident that there are plenty of both of the following:

Opinions indeed where the lineup is 3 liberals + 1 of the conservative 5 versus the 4 conservatives and one liberal (e.g., Breyer is just as faithless on Crim Pro as Scalia is)


6-3 decisions where there are 5 conservatives and 1 liberal versus the 3 other liberals.

(And all of this ignores permutations where Kagan is recused.)

In contrast, should Scalia follow the OPs advice and be replaced by, say, Liu, I think you will see two things happen:

1) A far leftwards movement in the type of cases the Supreme Court takes, pushing doctrine in that direction.


2) In those cases, a frequent amount of conservative victories with a liberal "traitor," and relatively few cases where conservatives can't break ranks (though slightly more than the current converse, because of the different *types* of conservatives on the Court).

Justin said...

(That (4) is extraneous. It is a continuation of point (3).)