Balkinization  

Thursday, August 19, 2004

Antonin Scalia as Felix Frankfurter

Mark Tushnet

I've been struck by some similarities between Antonin Scalia and Felix Frankfurter, despite their obvious jurisprudential differences (Frankfurter the defender of fact-sensitive balancing [sometimes], Scalia the advocate of rule-based decision-making). Both were politically active law professors before they became judges. And, like Frankfurter when he was on the Court, Scalia has an active group of enthusiastic supporters in the legal academy. (Frankfurter was born too soon for the Web, but I'm sure that, had it been possible, there would have been the equivalent of http://ninomania.blogspot.com/ for Frankfurter.)

Push the suggestion of similarity a bit, and what might we see? Frankfurter reputation has declined substantially -- even from the time when I was a law student -- to the point where he's regarded, I think, as at most a moderately interesting failure. I think that -- at this point -- there's some reason to think that Scalia might be the same. (I've inserted the qualification because "failure to this point" might turn out to be "success in the end" depending on who is appointed to the Court before Scalia throws in the towel.)

Consider some of Scalia's "signature" issues. (1) The fundamental illegitimacy of Roe v. Wade as a matter of constitutional law. For a while it looked as if Scalia might prevail on this, but when push came to shove, first Justice O'Connor in Webster and then Justice Kennedy in Casey jumped ship (to mix metaphors). (2) More broadly, a deep skepticism about the doctrine of substantive due process. Again, it looked as if Scalia had prevailed when a majority of the Court appeared to sign on to his approach in Washington v. Glucksberg, the right-to-assisted-suicide case. But, just a year later in rather obscure case, a majority described substantive due process doctrine in terms Scalia derided (County of Sacramento v. Lewis). Then, of course, the doctrine came back in full force in Lawrence v. Texas. (3) Affirmative action. The same pattern here -- early indications of possible success, then ultimate defeat in the Michigan affirmative action cases.

Lots of people have noticed the items I've listed. There's a fourth, which I think has been overlooked. (4) A campaign against the use of legislative history in statutory interpretation. Here the pattern's a bit more interesting. Scalia's early successes were quite substantial. And then they started to erode. (My sense is that the key event was Justice Breyer's arrival, giving the supporters of the use of legislative history a powerful intellectual counter-force who could bring real-world experience -- as Chief Counsel to the Senate Judiciary Committee -- to bear on the question.) We started to see opinions in which a majority discussed legislative history in a separately labeled subsection, from which Scalia could dissent (or concur only in the judgment). At the end of last Term, for the first time (I think) since Scalia's campaign began the Court issued a decision in which the discussion of legislative history was fully integrated into the majority opinion, leading Scalia to write a fairly acerbic opinion concurring in the judgment (Intel Corp. v. Advanced Micro Devices).

We can speculate a lot about why all this happened. My own view is that the explanation is mostly that the troops actually never were there to support Scalia's campaigns in their full version, but that Scalia and other similar conservatives didn't realize it until too late. I also think that a small part of the explanation lies in Scalia's personality, his desire to write in ways that hit the headlines but that can alienate his colleagues -- a character trait that is reinforced by the support he gets in the legal academy and by conservative op ed writers.

More interesting, I think, is that Democrats who use the fear of additional appointments like Scalia to rally their troops may have made Scalia into one of his own creatures -- "a ghoul in a late-night horror move that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried. [It] is there to scare us [when] we wish it to do so, but we can command it to return to the tomb at will." (From his concurring opinion in Lamb's Chapel v. Center Moriches Union Free School Dist.)

Now for the advertisement: This argument is a subsidiary one in my forthcoming book, A Court Divided: The Rehnquist Court and the Future of Constitutional Law, to be published in January by W.W. Norton. I expect that I'll pull additional bits of the argument out for later postings.

Comments:

I'd certainly have to agree that Frankfurter and Scalia share the same habit of weighing the law in a vacuum, absent societal needs. But, for whatever reason, most of what I read regarding Frankfurter would suggest his motivation was a Roosevelt inspired wish to stay out of the way of scores of New Deal legislation. And, given the type of communication that went on between FF and FDR (see one interesting letter http://newdeal.feri.org/court/ff01.htm here), who knows, they may be correct.

At the same time, Scalia's decisions, at least in the sources I seem to find, are almost always chalked up to strict textualism rather than any particular conservative agenda (all hunting trip accusations aside). And I think the reputation is well deserved. The most recent example that comes to mind is the Hamdi v. Rumsfield dissent, where despite his own cited "unease," Scalia, despite his long standing political affiliations, went back to the founders and even further to Blackstone to hold that, in essence, if Congress wanted the traditional constitutional history of this nation rewritten to allow mere suspicion on behalf of the executive to justify suspension of those privileges we consider inalienable without end, Congress would let him know that.

Perhaps I'm skewed, admittedly I'm a fan even of the idea of a political appointee making decisions based on the text of the law in front of him alone. But just the same, it's my hope that Scalia's deference to the text, even, as you say, in spite of the sometimes clearly stated legislative intent, and to the original constitutional history as a chronological progression from the founders, will raise him to the level of someone we actually believe kept to his principles despite his politics, and help his reputation survive a bit longer.
 

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I've never been struck by the 'similarities' between Frankfurter and Scalia, which I think owe more to wish-fulfillment than to reality ("Gee, Frankfurter was a conservative and he seemed to fade away; maybe Scalia will do the same."). Indeed, even the premise that Frankfurter has faded away seems bizarre -- certainly the name Frankfurter is no longer invoked as an epitome of proper judging, but Frankfurter's style certainly is, both in the law schools (Cass Sunstein and all the new pragmatists) and on the Court (Breyer and Ginzburg). I would think the real parallel of Scalia was Justice Douglas -- both were textual positivists, both were (wrongly) perceived as being purely political, both were (in my opinion) generally correct in where they came out on constitutional cases, both wrote acerbically and lost most of their opportunity to forge lasting contributions, and both were eventually reduced to being perceived (again wrongly) as style over substance. Indeed, Scalia even seems to be paralleling Douglas in racking up (false) accusations of ethical violations. In the interest of full disclosure, I would note that Professor Tushnet was my Con Law professor, and in the interest of being churlish, I would note that any errors or mistakes in my analysis are solely the fault of my teachers. :)
 

I've never been struck by the 'similarities' between Frankfurter and Scalia, which I think owe more to wish-fulfillment than to reality ("Gee, Frankfurter was a conservative and he seemed to fade away; maybe Scalia will do the same."). Indeed, even the premise that Frankfurter has faded away seems bizarre -- certainly the name Frankfurter is no longer invoked as an epitome of proper judging, but Frankfurter's style certainly is, both in the law schools (Cass Sunstein and all the new pragmatists) and on the Court (Breyer and Ginzburg). I would think the real parallel of Scalia was Justice Douglas -- both were textual positivists, both were (wrongly) perceived as being purely political, both were (in my opinion) generally correct in where they came out on constitutional cases, both wrote acerbically and lost most of their opportunity to forge lasting contributions, and both were eventually reduced to being perceived (again wrongly) as style over substance. Indeed, Scalia even seems to be paralleling Douglas in racking up (false) accusations of ethical violations. In the interest of full disclosure, I would note that Professor Tushnet was my Con Law professor, and in the interest of being churlish, I would note that any errors or mistakes in my analysis are solely the fault of my teachers. :)
 

Where/how does Scalia's work in the criminal justice areas fit into this analysis? If he sticks to his Blakely guns in Booker and Fanfan, Scalia's transformation of sentencing procedures might be his most important and lasting (and liberal) legacy.
 

I have to disagree with the comparison of Douglas and Scalia, if only because Douglas, as Frankfurter, clearly had a social agenda, and the standard legal realist's belief in an indeterminate law to be used as a tool by judges towards that end.

I think that Scalia, on the other hand, would admit that he fits most with the formalists of Douglas's day and a bit earlier, and would've clashed heartily with the realists. I mean, I know as a UMLaw grad I'm supposed to be a Llewellyn fan club member, but the man did clearly say "To affect its purpose a statute must be implemented beyond its text," and I just can't see Scalia buying into even the tail end of that school of thought.

At the same time, to suggest that Douglas is hampered in any fashion by textualism throws me. Wasn't Griswold all about avoiding the text? I bet Scalia still gets nervous any time someone mentions the word "penumbra."

As I see it, imho, Douglas was concerned with giving laws a "life and substance." Scalia's more concerned with making sure the words have meaning, and leaves the injection of substance or lack thereof up to Congress. And I think Scalia's constant objections to Blackmun's use of the same technique in Roe are based more on the loathing he holds for judicial action encroaching on the legislative mandate more than for the outcome of the holding.
 

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Antonin Gregory Scalia (born March 11, 1936) is an American jurist and the second most senior Associate Justice of the Supreme Court of the United States. Widely regarded as the intellectual anchor of the Court's conservative wing, he is a vigorous proponent of textualism in statutory interpretation and originalism in constitutional interpretation, sportsbook, and a passionate critic of the idea of a Living Constitution. Unlike his more ardent states' rights conservative colleague, Clarence Thomas, Justice Scalia does have a favorable view of national power and a strong executive. In this sense, he can be called a Hamiltonian. http://www.enterbet.com
 

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