Wednesday, December 09, 2015

Segall/Posner Follow-Up: Countering Countermajoritarian Accusations

By Michael Dorf

I am aware that today is the SCOTUS oral argument in Fisher v. University of Texas at Austin (Fisher II). I wrote a Verdict column and a blog post about Fisher II.  I spoke with Adam Liptak, who wrote about the case in The New York Times. I have fielded calls about Fisher II from other reporters as well. Everyone wants to know whether the Court will use the case to reconsider its approach to affirmative action in higher education. That's possible, I suppose, but it seems unlikely, given the Texas-specific aspects of the case. For now, I really don't have anything to add. If something interesting happens during the oral argument today, I might use my next post (on Friday), to discuss that. Meanwhile, on to another topic.

In their post here on DoL on Monday, Prof. Segall and Judge Posner defended their NY Times op-ed of last week, in which they accused Justice Scalia of promoting a "majoritarian theocracy." When I used the DoL Twitter account to retweet a link to the op-ed, some readers tweeted back at me their points of disagreement with Segall and Posner. For two reasons, I chose not to reply via Twitter. First, I find myself incapable of making a rational, much less a nuanced, argument in 160 characters.

Second, I do not always agree with everything, or even the gist of, what my co-bloggers write here or in other fora. For example, although I think that ideological factors play a large role in Supreme Court decisions, Prof. Segall and Judge Posner think they play a still larger role. Although the bloggers on this site are generally sympatico and I have great respect for everyone who writes here regularly or occasionally, I prefer to let my co-bloggers speak for themselves when challenged.

Having said that, I do want to discuss one kind of criticism of the Segall/Posner position to which they did not directly respond--and which has been raised in some tweets criticizing their original op-ed and their follow-up blog post. The criticism is encapsulated in the following two tweets (from two different readers) that were directed at me after the Segall/Posner post went up on Monday:
Tweet 1: Still doesn't meet Scalia's arg-namely, text+history didn't compel result in EC cases, Obergefell, did in others. 
Tweet 2: They only said things about democracy etc because the "liberal Justices" didn' care abt what Constitution/law actually says.
In other words, according to these tweeters, Justice Scalia was not saying in his Obergefell dissent and subsequent speeches criticizing Obergefell that the Supreme Court should not issue countermajoritarian rulings; he was saying that the Supreme Court should not issue wrong countermajoritarian rulings. When Justice Scalia invokes the Constitution to block democratic majorities from taking their preferred course of action--subjecting states to civil rights damages actions and federal mandates; campaign finance reform; strong gun control; race-based affirmative action; etc.--that's not a problem because (as tweeter 1 would have it), the Constitution compelled those results. However, when the Court says that states cannot deny two people of the same sex the right to marry, that's anti-democratic because the Constitution doesn't really require that result.

But of course everyone would agree that the Court shouldn't decide any cases wrongly. Perhaps the tweeters and Justice Scalia are also saying that the stakes are higher when the Court wrongly decides that some constitutional provision blocks action by elected officials than in other cases, but everyone agrees with that too. So the core of the defense of Justice Scalia must be--as suggested by the tweets themselves--that Justice Scalia's supposed methodology of paying close attention to the text of the Constitution ensures that he's usually (always?) right, whereas the "liberal" Justices' supposed methodology of making stuff up ensures that they are usually (always?) wrong.

This view partly trades on a familiar but nonetheless false dichotomy between so-called "enumerated" and "unenumerated" rights. The Constitution's text protects "speech" and "arms" but not "same-sex marriage" or "abortion," the claim goes, so countermajoritarian decisions striking down campaign finance regulations and gun control are unproblematic, whereas rulings striking down opposite-sex-only marriage laws and abortion restrictions are judicial usurpation. But of course the words "speech" and "arms" are no more self-defining than "liberty" and "equal protection."

At this point, we can expect Justice Scalia's defenders to pivot to critiques of the doctrine of substantive due process. I think those critiques are either wrong or, if they're right, that they take down much of constitutional law--including, for example, incorporation of the substantive rights of the Bill of Rights against the States. Justice Scalia has said that he acquiesces in the use of substantive due process to incorporate the Bill of Rights against the states because "it is both long established and properly limited," but both propositions are dubious. Incorporation doctrine is mostly a product of the 1950s and 1960s, while the voters of Chicago who had their gun control law invalidated in the case in which Justice Scalia made that claim might well disagree that the doctrine is limited.

But in any event, the critique of substantive due process is really beside the point because, even if one thinks that constitutional adjudication under the Bill of Rights and incorporated rights is based on rock-solid, discretion-free, objective judgments while other substantive due process adjudication relies on judicial whim, that distinction doesn't account for all of Justice Scalia's own countermajoritarian rulings. Justice Scalia has authored or joined in decisions finding a non-textual principle of state sovereign immunity and one forbidding federal "commandeering" of state and local legislative and executive officials. And he defends his anti-affirmative-action jurisprudence on the basis of a text that he wishes were in the Fourteenth Amendment but in fact is not.

To be clear, I'm not saying Justice Scalia is wrong in all of these decisions. Maybe some readers think that all or most of Justice Scalia's votes to displace majoritarian decisions making with the decisions of the four or more lawyers who agree with him rely on correct interpretations of the Constitution, but if so, he and his defenders should say that.

The point I'm making here is essentially non-ideological. Liberals also sometimes accuse conservatives of countermajoritarianism when what they mean is that the conservatives are wrongly striking down laws. For example, Justice Ginsburg's partial concurrence in NFIB v. Sebelius includes the following:
In the early 20th century, this Court regularly struck down economic regulation enacted by the peoples’ representatives in both the States and the Federal Government. See, e.g., [cases, including] Lochner v. New York, 198 U. S. 45, 64 (1905). The Chief Justice’s Commerce Clause opinion, and even more so the joint dissenters’ reasoning, bear a disquieting resemblance to those long-overruled decisions.
But just as Justice Scalia's accusations of countermajoritarianism in the gay rights cases only have bite if one also thinks that the majority is wrong, so too Justice Ginsburg's parallel accusations only have bite if one agrees with her on the substance. Justice Scalia and Justice Ginsburg each make substantive arguments for their respective positions in these and other cases, and different readers will find them more or less persuasive. In each case, selectively playing the countermajoritarian card doesn't really add anything.


  1. Mike -- isn't there a big difference from a counter-majoritarian perspective between (1) invalidating laws that the current majority in some states or the nation have enacted, and (2) invalidating laws that the majority in all states and the nation have enacted for virtually the entire nation's history, including at and immediately after the time of the enactment of the constitutional provision that supposedly forbade it? Scalia and every other Justice often do the first, but only the liberal Justices do the second (with the arguable exception for the conservatives of Brown/Loving). The degree of the counter-majoritarian objection seems exponentially larger for the second, since five Justices are trumping the collective views of our entire Nation over our entire history, not just a mere transient majority at one place or time.

  2. There are two problems with Justice Scalia with respect to majoritarian interpretation of the Constitution. The first is the distinction between a Principled Conservative and an Opportunistic Conservative.

    For a Principled Conservatives, a particular interpretation of the Constitution, mostly in a narrow and literal way, is applied in almost all circumstances. So a Principled Conservative who adopted a majoritarian approach would be loathe to vote to overturn both majoritarian rules that he or she agreed with and those which he or she disagreed with. With respect to current events for example, a Principled Conservative would support the right of a municipality to prohibit ownership of assault rifles because that position is of the majority of the residents and the restriction is not material with respect to the right to bear arms.

    But Justice Scalia is an Opportunistic Conservative. His opinions basically adopt a narrow interpretation of the Constitution and majoritarian view when doing so allows him to reach a decision which supports his own personal philosophy of government. When adopting such a view conflicts with his personal political and governmental beliefs, he easily and readily jettisons the conservative approach and majoritarian rights in majority opinions and dissents so numerous and obvious that they need no mention here. Has any part of the Constitution been interpreted more broadly than Justice Scalia’s position with respect to the 2nd Amendment? And only the broadest of beliefs can find that the 1st amendment equates money with speech and prohibits any government regulation with respect to the role of money in a political campaign.

    The second problem with Justice Scalia is that he ignores and disregards those parts of the Constitution that conflict with his beliefs. One wonders if he is even familiar with the Due Process and Equal Protection clauses and other parts of the Constitution which specify general rights rather than specifics. To Justice Scalia these sections are just inconvenient and are often ignored. Gays have no protection under the Constitution because the Constitution never mentions them. But assault rifles have protection under the Constitution even though the Constitution never mentions them. How convenient!

    In another example, the right to counsel obviously contains the right to ‘competent’ counsel. Otherwise a narrow reading of the requirement to mean that as long as any lawyer represents a criminal defendant the right to counsel is satisfied even if that lawyer is incompetent or incapable of mounting a proper defense renders the right ineffective. But Justice Scalia, for whom arrest is equivalent to guilt this interpretation is nowhere to be found. He has no problem with the state executing an individual even though that individual did not have competent counsel. If the defendant wasn't guilty he or she would not have been arrested.

    Still another area is the general statement of Congress’s right to regulate interstate commerce. There is almost no industry more ‘interstate’ than health care, yet Justice Scalia and others of his ilk refused to give the federal government the right to regulate that industry. Why? Because they oppose President Obama and his health care plan.

    It is difficult to write history while it is taking place, and it will be many decades before an objective evaluation of people like Justice Scalia can be made without the interference of personal biases and beliefs. But when that time comes history will support the views of Posner and Segall. Based on the record there can be no other interpretation of Justice Scalia’s philosophy other than that of the majoritarian theocracy which his writings support. In fact, as long as the majority imposes the ‘right’ religion on the populace Justice Scalia would probably agree with what Posner and Segall have written.

  3. Hash: I think the answer to your question is pretty clearly "no." Take a law like RFRA, enacted by Congress in 1993 with overwhelming bipartisan support. When the Court struck down RFRA in Boerne, its decision was very countermajoritarian. Indeed, much more so than, say, the Court's invalidation of the contraception statute in Griswold, which, as Calabresi and others have noted, probably didn't even have majority support in CT at the time. Bickel makes exactly this point in The Least Dangerous Branch, when he says that judicial review, however justified, and whether or not originalist, substitutes the Court's view of the Constitution for the policy choices of majorities in "the here and now." You can argue that the Court has greater warrant to strike down new kinds of laws than laws that were around at the time of the adoption of the relevant constitutional provision, but that's an argument to JUSTIFY countermajoritarianism on originalist grounds; it's not an argument for the proposition that originalist judicial review ISN'T countermjaoritarian.

  4. Professor Dorf- Both sides use this tact as you point out at the end of your piece. But no liberals have done it with quite the same the laughable hypocrisy as Justice Scalia. See my mockery on that subject here

    David Ricardo- I don't think this statement is correct.

    One wonders if he is even familiar with the Due Process and Equal Protection clauses and other parts of the Constitution which specify general rights rather than specifics. To Justice Scalia these sections are just inconvenient and are often ignored.

    Justice Scalia will vote to strike down Fisher, the big case today, on equal protection grounds. He also is against substantive due process, because he thinks its an oxymoron. Don't like to defend Scalia, but I think you are being a little unfair.

  5. Mike -- I wasn't saying originalist review isn't counter-majoritarian. I was saying it was *less* counter-majoritarian, because it doesn't have the audacity of rejecting the enacted views held by a majority of every generation of Americans from the Founding to the near-present (contra Obergefell). I'm not sure how either RFRA or Griswold contradict that point.

  6. Hash -- Thanks for the clarification. We probably have a mere semantic disagreement here. I agree that the fact that a practice not only existed at the Founding (or Reconstruction for the 13th, 14th, and 15th Amendments, or the enactment date for other amendments) but also was widely practiced and seen as unproblematic since then is relevant to a current judgment about its constitutionality. I think it's relevant than you do, but that's a different disagreement.

    Following Bickel (who coined the term) I would reserve the term "countermajoritarian" for describing whether the practice (or law) currently enjoys majority support. If so used, then when we measure degrees of countermajoritarian-ness, we properly ask how strong the current majority support is, rather than how long that support has lasted. Again, nothing really turns on any of this, both because degree of countermajoritarian-ness is not in fact an operative doctrinal issue, and because there may be good reasons for or against a countermajoritarian judgment in particular circumstances.

  7. With respect to the previous comment, a point of clarification.

    Justice Scalia does indeed recognize equal protection and due process along with many other rights when the issue is with respect to the majority such as the plaintiff in Fisher. I interpret his belief with respect to those provisions as protecting the majority from any conflict where the rights of the majority conflict with the rights of a minority.

    But when it comes to Constitutional protections for any minority group Justice Scalia cannot find the equal protection clause. For example I think the record is clear that the Justice believes there is absolutely no equal protection that applies to the gay community; that the equal protection clause has no relevance to gay rights because the gay minority is not specifically mentioned in the Constitution. Furthermore since the gay community has been oppressed in history none of the Constitutional protections were meant to apply to them. It may be incorrect that Justice Scalia believes the equal protections provisions of the Constitution do not apply to any minority not named in the Constitution, that the non-religious do not have the same protections of freedom as the religious, that the majority may oppress a minority if that minority were oppressed in the past, but given his writings and speakings on the subject it is not unfair to conclude that is what he does believe.

    And I would re-iterate, that if Justice Scalia were speaking in pure candor he would say something to the effect that "damn right the majority may establish a Christian theocratic basis for laws that favor the Christian religion".

  8. Tweet 1: Still doesn't meet Scalia's arg-namely, text+history didn't compel result in EC cases, Obergefell, did in others.

    Issues that split the Supreme Court are repeatedly not "compelled" by text and history, both that are not neutral clear things but matters of judgment. Also, repeatedly Scalia et. al. chooses the side that "text and history" very well strongly points in the other direction. This includes the Establishment Clause and yes in a full-fledged sense of how history has worked, even (I realize some find this risible) Obergefell.

    Tweet 2: They only said things about democracy etc because the "liberal Justices" didn' care abt what Constitution/law actually says

    This is b.s. and I'm sick of it. But, it's standard cant & yes, both sides sometimes say it, when the real point is strong dispute over what the law and democracy requires. But, darn, the Scalia side at times come off as much more sanctimonious, as they are merely using neutral objective criteria and not "making **** up" when BOTH sides have to make certain choices, even if when applies rules of statutory construction. See, e.g., the "fish" case involving the meaning of "tangible object" in the statute where KAGAN thought she was sanely applying the text, that to her obviously went the other way from Scalia.

  9. invalidating laws that the majority in all states and the nation have enacted for virtually the entire nation's history, including at and immediately after the time of the enactment of the constitutional provision that supposedly forbade it? Scalia and every other Justice often do the first, but only the liberal Justices do the second (with the arguable exception for the conservatives of Brown/Loving).

    Examples were provided OTHER than Brown/Loving regarding regulation of lobbying, barriers to sectarian religious governmental acts only in modern times deemed illegitimate were cited in the last thread. Others can be cited such as regulations of speech that until recently were deemed acceptable and so forth. And, why should it HELP that the supposed core of the 14A is being applied "wrongly" by "faint" originalists, exactly? Seems that arguably is WORSE. The idea that remedial affirmative action programs, including passed by Congress, are unconstitutional is another thing conservatives are willing to invalidate or congressional applications of the 15A. Both have been defended using history.

    HOW many examples need to be given before this "conservatives are different" (Kennedy, when it suits, not included) starts to seem to be lame? The difference here is that there are strong differences in understandings on what text and history demands, down to recess appointments (Breyer used history but Scalia found it wanting). The same applies to substantive due process, accepted by the USSC over 100 hundreds ago. But, such "history" is only accepted at a sufferance as precedent & Scalia actually ridiculed an attempt to use another clause in McDonald v. Chicago. After at least four justices ASKED for the separate argument to be made! At some point, this is kind of hard to take.

    "Liberals" are not the only type of judge anyway that thinks the law develops over time. John Harlan, who strongly dissented from many Warren Court rulings, was no liberal. He agreed with the premise. What was acceptable in 1868 might not be today since constitutional terms develop over time. Also, when looking at the details, the rules are complicated. So, e.g., abortion was often allowed pre-Roe v. Wade but in a selective and arbitrary way. This factored into judges, including conservatives like Powell and Burger, to vote the way they did in Roe v. Wade.

    Focusing on how Scalia is supposedly particularly a theocrat here if anything hands an easy target. So, as I said before, I would not single that out. I'd note loads of CONSERVATIVE judges also held same sex marriage constitutionally protected. The Winsdor ruling helped, but in no way did they merely rest on one precedent. But, yet again "liberals" are the target.

  10. "damn right the majority may establish a Christian theocratic basis for laws that favor the Christian religion"

    I don't think he would have to. He has already said that the majority can be "theocratic" as in favoring a monotheistic God (and not just in ways like "In God We Trust"). But, to the degree Christian theocratic concerns are involved, the cases would generally involve enough general morality or theocratic stylings that are not just "Christian" (such as "natural law" arguments against same sex marriage) to allow him to say Christianity wasn't a "but for" reason.

    So, he would allow locals dominated by Catholic thought to pass a law banning contraceptives. But, "Christ said so" wouldn't be the only reason offered, so there would not be a "Christian theocratic purpose" involved. I think in fact Scalia would if pressed said that was illegitimate though his test might in practice be too week to guard against it. He would also allow advancing that sort of thing by supposedly neutral laws such as school vouchers that didn't just benefit Christians, but in practice might benefit them 90% of the time.

  11. Well Scalia has officially embarrassed himself further today.

  12. Joe: I don't understand your other examples:

    (1) regulation of lobbying -- are you talking about campaign-finance laws? What exactly were the campaign-finance laws that were widespread and uncontroversial in 1791 or 1868? I'm pretty sure that's all a thoroughly 20th century invention.

    (2) barriers to sectarian religious acts -- again, what sectarian religious acts were widespread and uncontroversial in 1791 or 1868 that Scalia would invalidate? I'm pretty sure that the things that were widespread *and* uncontroversial at the time were non-sectarian, and Scalia would uphold those. Yes, there were some sectarian practices in 1791 with strong support, but there was also strong condemnation. That's no different than the Sedition Act. What I've consistently emphasized are practices that *everyone* thought was constitutional, like the traditional definition of marriage.

    (3) regulations of speech -- again, that's pretty vague, and I'm not aware of any case of first impression where Scalia has voted to invalidate a speech restriction that was widespread and uncontroversial in 1791 or 1868. To the contrary, in his Rutan dissent upholding political patronage, he made quite clear that he thinks that such practices should not be invalidated. The closest I can think of is his willingness to apply NY Times v. Sullivan defamation precedent, and stare decisis is obviously a confounding problem there; i think (though may be wrong) that he's said before that he would have dissented in Sullivan

    (4) remedial affirmation action -- again, I've yet to see someone point to a *state* *race-based* affirmative action program that existed in 1868, let alone widespread ones. Providing benefits to *former slaves* isn't race-based (since it doesn't covered blacks who weren't slaves and would cover any whites who were enslaved). And *federal* programs (whether race-based or not) are irrelevant, since the EPC doesn't apply to the feds and so any decision by the 1868 Congress to use race sheds no light on whether they trusted the States to do likewise. (Scalia's vote in Adarand is obviously premised on the stare decisis effect of Bolling v. Sharpe.)

    (5) as for Brown/Loving, it's not at all clear that those decisions are wrong on originalist grounds, for reasons similar to the ones given in McConnell's article. But even if they are, I don't think you can accuse a Justice of "selectivity" based on a lone counter-example involving a now-canonical case.

  13. invalidating laws that the majority in all states and the nation have enacted for virtually the entire nation's history, including at and immediately after the time of the enactment of the constitutional provision that supposedly forbade it? Scalia and every other Justice often do the first, but only the liberal Justices do the second (with the arguable exception for the conservatives of Brown/Loving).

    If someone is not sure of the details of "the entire nation's history" here on the various disputes here, especially when "only the liberal Justices" (or judges) do not actually do the first & hard cases there are not actually that typical, might want to be careful on making broad statements like this.

    [1] Campaign laws are not "a thoroughly 20th Century" invention. For instance, there were strong laws against use of in person lobbyists in the late 19th Century that were not deemed controversial. Thus, my example.

    [2] Scalia holds coercion illegitimate; would he (I cited this example the last time) support the common requirement that notaries etc. swear/affirm belief in God? Not controversial. Going back to the Founding Generation (both 1787 and 1868), a range of Christian sectarian rules were deemed acceptable there including favoring Protestant bibles over Catholic ones in public school.

    Scalia opposes that sort of thing. Opposition to laws "enacted for virtually the entire nation's history, including at and immediately after the time of the enactment" is a new wrinkle to your test. How much opposition is necessary? As I noted, free love was a movement in the 19th Century that challenged popularly passed moral laws. Your "nobody" test cited last time means what?

    [3] Modern speech law is an early to mid-20th Century invention. It was "widespread and uncontroversial" to regulate or ban a range of speech now deemed protected by Scalia et. al. There was always some libertarian opposition but even they often supported what would now be deemed unconstitutional. I was "pretty vague" since the "bad tendency test" of the era covered so much ground.

    [4] Benefits were not just given to 'former slaves' but covered blacks who did not have to show they were slaves. Sorry if no one gave you various articles etc. that covered this material, but it's out there. Democrats of the day decried various policies as reverse affirmative action in the post Civil War Era partially for that reason. Also, the understanding by proponents of the amendment was that remedial laws to deal with past discrimination was not a violation. It would be helpful to show a clear understanding that was WRONG.

    And, no, you can actually READ his (or Thomas') concurrence to Adarand. He rests his position on broad principles that the Constitution bans race based laws of that sort. It isn't that hard to check that out, so when you say things like "obviously," perhaps you can use a bit more care. There is some basis to that and (using history) we can examine the thought of the group behind the 14A that had a broad sense it was "self-evident" that equality was a basic governmental principle.

    (5) McConnell's article have been refuted but using a rule based on the broad judgement of the framing generation and history long after, segregation in public places, miscegenation laws etc. were constitutionally appropriate. If you want to use a whole category of cases as an exception, along with precedent, selectively favoring history ("traditional marriage" means different sex marriage, but a range of other things now deemed generally constitutionally problematic, including by non-liberals are skipped over) et. al. the "rule" starts to be a bit like Calvinball.

  14. The posts of this Forum are illustrative of the problem in discussing Supreme Court decisions. Proponents of one side or the other like to argue in terms of ‘right’ and ‘wrong’. But those are factual concepts, like 2 plus 2 equals 5 is wrong. With respect to qualitative pronouncements concerning Supreme Court opinions there is no right or wrong; the opinions are crafted on each side by some of the best legal minds (judges and their clerks) in the country (Justice Thomas being the exception). The issue is which side has the better argument.

    The complaint against Justice Scalia is not that he is ‘wrong’, but that he is inconsistent and a hypocrite. Scalia takes a narrow and technical interpretation of the Constitution when that suits his pre-determined personal position and he takes a broad based expansive interpretation when that is necessary to reach a conclusion that is consistent with his personal beliefs. There is some intellectual integrity in each of his opinions (in spite of his bluster, his bullying, his personal attacks) but taken as a group they fail to elucidate a consistent theory of Constitutional law other than the Constitution means what Justice Scalia wants it to mean to satisfy his view of how society should exist.

  15. Anonymous9:39 PM

    I agree with the gist of what Professor Dorf is saying, especially his conclusion. I do take exception however to one point he makes. He writes, "But of course the words "speech" and "arms" are no more self-defining than "liberty" and "equal protection."

    That is not quite right because it suggests that every word is equal to every other word in the definition game. The obvious example is "arms" vs "speech". Speech is a much more nebulous concept than arms, because arms by definition must be limited to some type of weaponry. What type of weaponry I agree is not self-defining but the right to bear arms cannot possibly be equated with a right to a speedy trial. Some words have more "play" in them than others. Word choice does impose some limits. So just because "liberty" and "equal protection" require some further definition it does not follow that any definition will do or that the amount of further definition is equal between the two phrases.

  16. Anonymous9:47 PM

    "Scalia takes a narrow and technical interpretation of the Constitution when that suits his pre-determined personal position and he takes a broad based expansive interpretation when that is necessary to reach a conclusion that is consistent with his personal beliefs."

    Justice Holmes would be surprised, I think, to find out that Scalia is just like him because these two sentences perfectly encapsulate Holmes "legal realism" approach to the law. I think your criticism of Scalia is unfair (and I am a person who has publicly called him a "hack" in the past.) I do think that there is an underlying consistency to Scalia's views, I do not think that consistency can be found in the law. Let me ask you a question: you write, that he has no "consistent theory of Constitutional law," So why is that a vice? It strikes me as a virtue.

  17. Joe, your response is remarkably ill-informed:

    1. "strong laws against use of in person lobbyists in the late 19th Century." Last I checked, "the late 19th Century" isn't exactly 1868, much less 1791. Also, when exactly did Scalia vote to invalidate a law *limited* to "use of in person lobbyists"? The campaign-finance laws he's *actually* voted to invalidate are indeed 20th century inventions -- or, at least, that's the earliest historical support the *dissenters* in those cases could come up with. See, e.g., FEC v. WRTL, 127 S. Ct. 2652, 2689-91 (2007) (Souter, J. dissenting).

    2. "swear/affirm belief in God." You apparently don't know why there's a distinction between "swearing" and "affirming." The whole point of the alternative of "affirming" is that it does *not* require a reference to God. See, e.g, authorities cited in So that doesn't implicate the religion clauses at all, much less the "coercion" test.

    As for the choice of Bibles etc. in public schools, I'm pretty sure public school wasn't "compulsory" *anywhere* in 1789, and only in a few places by 1868. See, e.g., Morse v. Frederick, 127 S. Ct. 2618, 2630-31 (2007) (Thomas, J., dissenting); So, again, no "coercion" at all.

    3. Other speech restrictions -- I can't really respond, since you still haven't identified an actual speech restriction that was widespread and unchallenged in 1791 or 1868 but that Scalia has voted to invalidate as a matter of first impression (rather than based on pre-existing precedent, such as in the defamation context). And for what I mean by "unchallenged"/"uncontroversial", I'm content for present purposes to mean that no one ever claimed in court that the widespread practice was unconstitutional, much less that any court ever invalidated such a practice at the time. This is true for the traditional definition of marriage and other such practices that liberals have had no compunction invalidating under the pretext of the Constitution. It's not true for any practice that you've identified that Scalia has voted to invalidate (with the arguable exception of Brown/Loving, see below).

    4. Given your historical analysis above, let's just say I'm not prepared to take your word for it that there are "articles ... out there" showing that it was a widespread and uncontested practice for *state* laws in 1868 to provide benefits *based on race.* I'd be happy to read any such article or law you can cite. I strongly suspect that you won't be able to, and will instead cite something irrelevant like the *federal* *Freedman's* Bureau Act, which is neither a state law nor based on race.

    As for Adarand, "perhaps you can use a bit more care": the majority expressly relied on Bolling v. Sharpe in Part III.A of its opinion, which Scalia expressly joined. "It isn't that hard to check that out."

    5. I'm glad to learn that you think Klarman "refuted" McConnell, but not everyone agrees. In any event, you can call it "a whole category of cases," but it boils down to a single constitutional issue: can "separate" still be "equal," regardless of whether it's applied to train cars, public schooling, or marriage. If that's the lone constitutional rule where Scalia has overruled practices that were widespread and uncontroversial at the Founding, then that's a far cry from him being "selective," or imposing a "majoritarian theocracy," and it's far better than the liberals who have *routinely* destroyed such practices.

  18. PS. Joe, one last, over-arching point: your attempt to use *general legal tests* that Scalia has adopted (like "coercion") to attribute to him a willingness to invalidate *specific practices* that were widespread and uncontested at the time of the relevant constitutional provision fails, because Scalia has expressly disavowed any such intent:

    "Thus, when a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down.... Such a venerable and accepted tradition is not to be laid on the examining table and scrutinized for its conformity to some abstract principle of First Amendment adjudication devised by this Court. To the contrary, such traditions are themselves the stuff out of which the Court's principles are to be formed. They are, in these uncertain areas, the very points of reference by which the legitimacy or illegitimacy of other practices is to be figured out. When it appears that the latest "rule," or "three-part test," or "balancing test" devised by the Court has placed us on a collision course with such a landmark practice, it is the former that must be recalculated by us, and not the latter that must be abandoned by our citizens." Rutan v. Republican Party of Ill, 497 US 62, 95-96 (1990) (Scalia, J. dissenting).

    So you need to identify an actual practice that he's voted to invalidate as a matter of first impression that was widespread and uncontested at the time of the relevant constitutional provision, not some hypothetical conflict between a specific practice and a general rule.

  19. I don't see why it follows that, just because everyone agrees that courts should not make wrong decisions, and everyone agrees that counter-majoritarian decisions have higher stakes, that Scalia must be understood to be saying anything more. The defense of Scalia is simply, "Scalia's argument is not one for majoritarian theocracy." The fact that Scalia's argument may be a blatantly obvious proposition with which everyone agrees with is not logically contradictory to that.

    I should make clear that I'm not disputing whether Scalia, in his heart of hearts, believes in majoritarian theocracy or whether he believes that his methodology results in fewer wrong decisions. My point is simply that the publicly articulated argument does not necessarily contain those propositions.

  20. Query: Was Justice Scalia's statement during Fisher II orals about African-Americans not ready for prime time higher education a subtle reference to Justice Thomas? Is Scalia as color blind as Thomas? Or is Scalia channeling CJ Taney?

    Regarding majoritarian theocracy, it should be kept in mind that the Court now consists of 6 Roman Catholics and 3 of the Jewish faith; no counters of Protestants, Muslims, etc.

  21. Anonymous3:44 PM


    Like most statements in the press Scalia's comment was taken out of context. The argument, simply put, is as follows. (a) Diversity in higher education is primarily to benefit white students, rather than the minorities themselves. (2) At elite institutions there are not enough qualified minority students to go around. (3) Therefore, some students who are not academically prepared will be "lifted up" in order to round out the student body. (4) These students who are lifted up will do less well academically then they would have if they had gone to second or third tier educational institutions.

    There is data that supports this line of thinking. That's not to say I agree with it. But it is not a crazy or racist argument to make. It is, at a rhetorical level, an attempt to argue that it is elite liberal institutions who are the real racists because they exploit minority students under the guise of "diversity". Justice Thomas has spoken more than once that he feels that is exactly what happened to him at Yale.

  22. Taken out of context? Hardly since what he said was reported verbatim.

    Of course the first thing about the comments is that they were totally irrelevant to the issue before the Court. The Court is trying to determine if UT's policy is constitutional. The efficacy of the policy is not subject to the Court's jurisdiction and given that all of the members of the Court and Justice Scalia in particular have absolutely no knowledge, experience or even minimal qualifications to evaluate the policy his comments simply exposed his desire to dictate educational and public policy from the bench rather than to opine on law.

    The commentary by Justice Scalia was abusive, arrogant, condescending and bigoted. The last word should belong to this posting on the New Yorker site.

    "WASHINGTON (The Borowitz Report)—A new study conducted by legal scholars indicates that Justice Antonin Scalia would fare better if he served as a judge at a court that was “less advanced” than the United States Supreme Court.

    According to the study, Scalia’s struggles to perform his duties in a competent fashion stem from his being inappropriately placed on a court that is “too demanding” for a person of his limited abilities.

    “Forcing Justice Scalia to weigh in on complex legal issues that he lacks the background or aptitude to comprehend is, at the end of the day, cruel,” the study said.

    The legal scholars theorized that Scalia would be more likely to thrive in a “lesser court where he does not feel that he is being pushed to hear cases that are too challenging for him.”

    “If Scalia were reassigned to a ‘slow track’ institution such as a town traffic court, that would be better for everyone,” the study recommended."

  23. James, had Thomas attended second or third tier educational institutions, do you think he would be where he is today? Consider the institutions the current members of the Court attended. Thomas did not have a significant legal career. So perhaps based upon your views, Thomas' appointment to the Court was a form of affirmative action by George H. W. Bush?

    Was the argument you "simply put" the argument that Scalia made during orals? If not, how exactly was Scalia's comment taken out of context? There may be data supporting the line of argument you present. But there may be data in the other direction as well. You weasel out with your: "That's not to say I agree with it." Your words that follow suggest you do, especially your rhetorical reference that reveals obvious biases. I made no reference to Scalia being either crazy or a racist. He just doesn't like the concept of affirmative action.

    Perhaps a similar argument could be made regarding legacy admissions at elite institutions, liberal or conservative, depriving qualified minority students of seats.

  24. James may not appreciate the humor in the Borowitz Report. Or in last night's The Nightly Show wilh Larry Wilmore segment on affirmative action, with the Scalia quote and one from CJ Roberts as well. Add the 150th anniversary of the adoption of the 13th Amendment. Perhaps James needs a reminder of what has transpired in those 150 years.

  25. Anonymous8:21 PM

    "James, had Thomas attended second or third tier educational institutions, do you think he would be where he is today?"


    Which is why I clearly qualified my remarks by saying that I didn't necessarily agree with the mismatch theory. In a variety of ways elite institutions impart their students with cultural capital that has nothing to do with pure academic merit. So the proper rebuttal to the mismatch theory is that it takes too narrow of a definition of what is "meritable".

    But it shouldn't be taken that I agree with the liberals either. FWIW I see universities in a general sense as overpowered in American life. The "merit" vs "diversity" debate is a struggle over access to power. Yet that debate only carries resonance insofar as one thinks of universities as power generating institutions. I think that vision--of education as a form of power generation--is harmful. In short, regardless of whether liberals or conservatives have the better of the policy arguments I believe that universities should not be the venue for that struggle.

  26. Mike, regarding the "off topic" I started on Fisher II in this thread, I feel obliged to refer to the NYTimes 12/10/15 education article "With Remarks in Affirmative Action Case, Scalia Steps Into Mismatch Debate" to put my and others' comments in perspective with more background. Or should this be raised in your recent post on Fisher II? Sorry for the inconvenience.


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