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.