Wednesday, September 14, 2016

Justice Scalia 1 and Justice Scalia 2: A Modest Proposal

By Eric Segall

Jack Balkin of Yale Law School recently posted an essay about Justice Scalia's legacy which sets forth four criteria for ascertaining what a Justice's long term reputation is likely to be. Balkin argued we should look at 1) how useful the Justice is likely to be to future generations; 2) Is the Justice central to the political regime in which he lived; 3) Did the Justice take positions that are likely to end up on the "right side of history"; and 4) Did the Justice have promoters and "acolytes" willing to strongly defend his positions.

I think these criteria are fine for the task at hand, and so does my friend Ilya Somin, who responded to Balkin with his own post on the Volokh Conspiracy. Like any good balancing test, we don't really know how these criteria will play out in the future, and neither Balkin nor Somin takes a strong position on what they mean for Scalia's long-term reputation. But, and it is a big but, both men in making their arguments accept that part of Scalia's legacy, in Balkin's words, amounts to "methodological commitments to originalism or textualism", and in Somin's words, that Scalia was a "leading champion of originalism." Before I make my main point, I must note that neither Balkin nor Somin thinks Scalia's alleged commitments to originalism or textualism are as important to his legacy as the results he advocated, and I whole-heartedly agree.

If constitutional law professors are going to write about Scalia's originalism and/or textualism, they should also mention that when it comes to his votes, he was neither. I have made these arguments before in detail here and elsewhere, so won't repeat my analysis. Suffice it to say that no reasonable person can look at Scalia's votes in affirmative action, takings, 11th Amendment, standing, first amendment, criminal procedure, and commandeering cases, among others, and argue that he voted as an originalist or textualist.  He voted his values writ large, like every other Justice.

One thing Scalia did do was talk the talk of originalism and textualism in his writings, his dissents, and his public speaking engagements. And, he did that very well. So, here is my proposal. From now on, I hope academics will refer to "Scalia 1" and "Scalia 2."  Scalia 1 was the witty academic, fun public speaker, and caustic dissenter who made detailed and interesting arguments in favor of judges leaving elected officials alone unless they violated the clear text or original meaning of the Constitution. Scalia 2 was the judge who voted to overturn the acts of those very same officials all the time through huge swaths of constitutional law even though neither the clear text nor the original meaning supported those decisions.

Whatever Scalia's legacy ends up being, if we don't keep the two Scalias straight, we are not doing justice to the actual man.


Joe said...

Was Scalia cloned?

Shag from Brookline said...

Eric's closing sentence might suggest the importance of "doing Justice" to a sitting Justices as opposed to following the demise of a Justice. Now if only we could agree on what constitutes "doing justice."

Unknown said...

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Hashim said...

Perhaps the reason why scholars like Balkin and Somin don't constantly dispute Scalia's commitment to originalism/textualism is because, unlike you, they don't mischaracterize his theory of originalism/textualism in order to generate purported contradictory votes.

Specifically, unlike your arguments in prior posts, perhaps they recognize that he didn't argue that the original understanding had to be "clear" to invalidate a practice (ie, a Thayerian version of judicial restraint), but rather argued principally that a practice couldn't be invalidated *if* its validity was clear under the original understanding. And you haven't identified practices that he voted to invalidate where the validity under the original understanding *was clear*, except by making obvious errors of legal logic -- such as your favorite faux example of suggesting that arguably race-based laws by *Congress* are somehow evidence of whether *States* could enact race-based laws under *the 14A*, which regulates only "States", not the federal govt.

Finally, perhaps they recognize that accusing him of voting his "values writ large" avoids the need to defend preposterous positions such as: (1) he valued state protectionism (given consistent votes against Dormant Commerce Clause); (2) he valued state jackpot juries for civil pltfs (given consistent votes against DP review of punitive damages); and (3) he valued criminal defts' rights in the jury-trial and confrontation contexts but not in most other contexts, even while simultaneously writing opinions that the jury-trial right isn't that important (schriro).

Jim said...

Hey Hashim, is your copy of the 14th Amendment missing Section 5? It seems to me that the "appropriate legislation" passed by Congress to "enforce . . . the provisions of" the 14th Amendment serves as pretty good evidence of the nature of the rights that Congress thought were protected by that Amendment. Surely you're not suggesting that Congress could pass affirmative action legislation under its section 5 power to enforce the provisions of the 14th Amendment, but that a State that practiced the same sort of affirmative action would be violating the 14th Amendment?

Joe said...
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Joe said...

So, he said "clear," but it is a question of what exactly has to be clear.

Next, the professor provided examples, except you disagree with them on the merits. A tell here is "obvious" -- it might be "obvious" to you, but repeatedly it isn't "obvious" to other people. But, the overheated tone has Scalia overtones though ironically I think the professor at times uses it too.

The "values writ large" thing is within limits & not absolute -- there are constitutional limits so clear (including to a person) that their values alone will not be the judge (the professor exaggerates here at times). Finding exceptions like that is of limited value there. Besides the usual thing that no one is totally Johnny One Note. But, "writ large," yes, like other justices, his overall values in areas of debate tended to be a dominate feature. Such is the nature of human judging and "originalism" has not been shown [imho] to be an overall useful counter.

Finally, first, the 14A does "regulate" the "federal government" in certain respects. Jim points to one -- the fifth section gives power to Congress. Second, Scalia was against race based AA for the federal government too, so original practice there would be relevant to his argument. Scalia argued (see, e.g., Adarand) for a general principle there not limited to states. It is "somehow" relevant. Missing the point while using strong dismissive language is also something at least one of the Scalia's favored. To be fair, not only him, but it is misguided either way.

Hashim said...

Jim -- you're right that, *if* Congress had passed affirmative-action legislation solely pursuant to Section 5, that would be relevant to the original understanding. But I'm not aware that it ever did so, for two reasons: first, much of its remedial legislation was independently justified as Spending Clause legislation, whether or not it was valid Section 5 legislation; second, much of its remedial legislation didn't classify on the basis of race, but rather on the basis of status as former slaves. If you've got specific examples of Reconstruction-era federal legislation that *classified based on race* and that could be justified *only* as Section 5 legislation, I'd love to see them. (Also, though I wasn't clear enough in my prior post, I was primarily thinking of the fact that opponents of originalism try to suggest that Brown is incompatible with originalism simply because Congress racially segregated DC schools, which is a non sequitur.)

Joe -- I agree that the question is exactly what has to be "clear." That was my entire point. As for the professor's examples, like him, I was trying to avoid relitigating them, which we've addressed at length in his prior posts. I just mentioned the flaw in one as an example of why other scholars don't repeat his refrain that Scalia wasn't actually committed to originalism. As for Adarand, it was decided with Bolling as controlling precedent that wasn't going anywhere -- I'm quite confident Scalia would have voted the other way if Bolling wasn't on the books. Finally, while you're right that rulings that were exceptions to Scalia's values would be of "limited" probative force *if* the constitutional limits in the case were "so clear," you conveniently overlook that that doesn't explain *any* of the examples I actually gave: after all, Scalia was *dissenting* in the Dormant Commerce clause and punitive damage DP cases, so it would have been quite easy for him instead to just go along with the majority's positions, which were much more in line with his personal "values," though not his originalist/textualist commitments. So thanks for confirming that "missing the point" wasn't something that "only" Scalia did.

Joe said...

"Clear" on this, "clear" on that, sorry, not seeing how that really changes much at the end of the day. Go at debating him on the merits. He (if in his over the top way) will on balance imho probably win on points. It just is not so "obvious" & that sort of tone given past reactions will just make him dismissive. As I guess it warrants.

In Adarand (unlike, e.g., on substantive due process) Scalia didn't rest on precedent. He rested on overall constitutional principle. Your "confidence" is noted. Reading his opinion and other opinions by him, I don't have it, except the other way. Since he did not merely rest on precedent, historical evidence there is relevant.

I'm not "conveniently overlooking" things either. Why do I have to explain specific examples? The basic point is that the "writ large" should not be taken in an extreme way as THE ONLY THING HE USES. It is a general overall trend in cases otherwise open to debate plus surely other things factor into his analysis since he isn't as I said Johnny One Note. But, as with other judges, it is a strong influence in cases with room for reasoned debate.


BTW, again, to forestall confusion, the 14A doesn't just regulate state action. The Supreme Court in a case cited by Bolling post-14A also noted generally that the federal government also could not pass unreasonable race based policies. This is the overall principle Scalia cited repeatedly. Not precedent alone. Finally, originally, the ban on race based laws wasn't absolute. Reasonableness was weighed. Congress passing laws here would be relevant in the balance there.

The "spending legislation" argument could save the day, but it wouldn't change its relevance to determine what was originally deemed legitimate to enforce the 14A. "Much" is not all & it has long been accepted that if a legislation is closely tied to a criteria, it would fall. At the time, the legislation was challenged as illegitimate race based. But, it was passed regardless, and not merely on "neutral" grounds of it being slavery based [of course many blacks were not slaves, just as pregnancy legislation has not been accepted as sex based by the USSC].

If even you say "much," you seem to have already "saw" it. The professor cited some materials in his various articles on the subject and others point to it as well. I'll let you do your own research.

Joe said...

"Underlying all of those decisions is the principle that the Constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the general government or by the states against any citizen because of his race. All citizens are equal before the law. The guaranties of life, liberty, and property are for all persons within the jurisdiction of the United States or of any state without discrimination against any because of their race."

Gibson v. Missisippi (1896).

Bolling v. Sharpe alone didn't start us here.

Scalia in Adarand:

"Individuals who have been wronged by unlawful racial discrimination should be made whole, but, under our Constitution, there can be no such thing as either a creditor or a debtor race."

(he then cites various constitutional provisions; he cites a single case -- his own concurring opinion in an earlier case involving state action)

Anyway, you are welcome.

Asher Steinberg said...

I don't know that it's entirely out of bounds to draw inferences from what the Reconstruction-era Congresses did on the federal level to what kinds of state legislation they would have disapproved of enough to make unconstitutional. It would be at least a little weird for Congress, constitutional constraints aside, to engage in a type of racial discrimination it felt strongly enough about to constitutionally ban at the state level, unless you think the Fourteenth Amendment is a whole lot more about structure and a whole lot less about banning discrimination that Congress thought normatively bad than we're used to thinking. But isn't it incumbent on the (faux) originalist critic of Scalia to show that these Reconstruction-era remedial laws not only discriminated on the basis of race, but would fail strict scrutiny? Even if not limited to former slaves, I would think that post-emancipation proto-affirmative action programs would be pretty defensible under current doctrine - at least, defensible enough that their existence doesn't tell us anything about whether Reconstruction-era Congresses would deem benign racial classifications permissible absent some compelling interest. And even if I'm wrong about this, isn't this defense of Scalia's position, or Hashim's, more than reasonable enough to ward off arguments that Scalia's votes in Croson and Gratz show he wasn't a serious originalist? A serious originalist could reasonably get where he got - indeed, reasonably get to a position where the laws Segall relies on aren't even probative enough to discuss.