Balkinization: Scalia Issues a Threat? A Prediction? A Promise?

Scalia Issues a Threat? A Prediction? A Promise?

Brian Tamanaha

As is his wont, Justice Scalia issued several provocative comments this past weekend, reported by CNN:

Justice Antonin Scalia on Sunday defended some of his Supreme Court opinions, arguing that nothing in the Constitution supports abortion rights and the use of race in school admissions.

Scalia, a leading conservative voice on the high court, sparred in a one-hour televised debate with American Civil Liberties Union president Nadine Strossen. He said unelected judges have no place deciding politically charged questions when the Constitution is silent on those issues.

Arguing that liberal judges in the past improperly established new political rights such as abortion, Scalia warned, "Someday, you're going to get a very conservative Supreme Court and regret that approach."

"On controversial issues on stuff like homosexual rights, abortion, we debate with each other and persuade each other and vote on it either through representatives or a constitutional amendment," the Reagan appointee said.

"Whether it's good or bad is not my job. My job is simply to say if those things you find desirable are contained in the Constitution," he said.

Scalia's comments come as the Supreme Court this term will hear closely divided issues involving partial-birth abortion and school integration. They are expected to test the conservative impact of the court's two newest members, Chief Justice John Roberts and Samuel Alito.

Scalia, 70, has consistently voted to limit the use of race in school admissions and has called for the 1973 Roe v. Wade decision establishing a woman's right to abortion to be overruled. But his influence was often limited by moderate Sandra Day O'Connor, who cast deciding votes on those issues against him.

With O'Connor now retired and Alito succeeding her, Scalia -- whom President Bush passed up for chief justice -- will have new opportunities to sway his new colleagues and centrist Anthony Kennedy closer to his viewpoints.

During Sunday's debate, Scalia outlined his judicial philosophy of interpreting the Constitution according to its text, as understood at the time it was adopted. He reiterated that race has no place in school admissions, a viewpoint that put him on the losing side in 2003.

"The Constitution very clearly forbids discrimination on the basis of race," Scalia said in response to a question by moderator Pete Williams of NBC. "It doesn't seem to me to allow Michigan to say we think it's good to discriminate on the basis of race when you want to make sure everyone is exposed to different backgrounds. We cannot use race as the test of diversity."

This familiar fare from Scalia. What is perhaps different is the sense he exudes that he is no longer howling in a losing cause, but that, with the departure of Justice O'Connor and the additions of Justices Roberts and Alito, the balance may have finally shifted in his favor.

The following statement, in particular, smacks of a threat: "Someday, you're going to get a very conservative Supreme Court and regret that approach [of liberal justices using their power to implement liberal views]."

If Scalia, Roberts, and Alito remain true to their professed assertions about the proper judicial role, they will not engage in what Scalia accuses liberal justices of having done just because there is now a conservative majority. Tit for tat is not a theory of constitutional interpretation.

Now we will see whether conservative justices live up to their claims of judicial restraint and their promises to interpret the law without injecting their personal ideologies. It's hard to be optimistic.

Posted 10:33 PM by Brian Tamanaha [link]

Comments:

I'm going to be a bit contrary here. I really don't find this troubling except as to the likely result of Bush judges. Liberal judges/justices have voiced their judicial philosophy in public ... Breyer is out there doing loads of interviews and wrote a book.

[Brennan and Stevens, not to say the liberal stalwart of the 9th Circuit have also publicly voiced concerns about how conservative the courts have gotten. They voiced their own constitutional vision in the process.]

Scalia forthrightly has certain views, including that various subject matter is not for the judiciary. He has repeatedly warned that if you give too much power to the courts that you might be sorry since you never know who will be there.

I don't see this as some sort of "threat." It can be seen as some sort of "I told you so" warning of sorts, but with elections coming up, is this really a bad thing for the rest of us?

This is an interesting companion post to the Greenhouse entry.

# posted by

Joe : 8:59 AM

If Scalia, Roberts, and Alito remain true to their professed assertions about the proper judicial role, they will not engage in what Scalia accuses liberal justices of having done just because there is now a conservative majority. Tit for tat is not a theory of constitutional interpretation.

Now we will see whether conservative justices live up to their claims of judicial restraint and their promises to interpret the law without injecting their personal ideologies. It's hard to be optimistic.

On the subjects which Scalia addressed in the debate - whether the Constitution guarantees rights to abortion, homosexual sex or homosexual marriage - there is no reason to believe that Scalia, Roberts or Alito would interpret their own viewpoints into the Constitution ala O'Connor and Kennedy. Rather, they have pretty consistently over the years simply read the text of the Constitution and held that such rights are not present in the document.

Scalia's hypothetical about a conservative court using the liberal "living Constitution" approach to interpretation to read their own personal viewpoints into the Constitution is merely a cautionary tale which I myself used as a 1L to rebut my ACLU member Con Law professor on the abortion issue.

I warned that, if the Constitution does not mean what it says and can be amended at will by the Supreme Court to change with the times, then a Court with five Jerry Fallwells could legitimately interpret the Constitution to ban all abortions even when the life of the mother is at risk.

In stark contrast to that cautionary tale, Scalia instructed during his debate with Nadine Strossen that the judiciary may not arrogate the power to amend the Constitution at will to insert its own personal viewpoints and instead must defer to the elected branches when the Constitution does not expressly bar their actions.

When the so called Partial Birth Abortion Ban comes up before the Court this session, it will be interesting to see if Roberts and Alito adhere to the Scalia approach or defer to the precedent of O'Connor inserting her personal views on the issue into the Constitution.

# posted by

Bart DePalma : 9:27 AM

How to put this delicately, with the respect a 2l should show for one of the nine most powerful jurists on the planet? "Partisan." But he makes for a great study in illegitimate argumentation:

It is one thing to take sides. It is another to stoop to methods of argumentation that any self-respecting college freshman would shun. Unless you are Supreme Court Justice Scalia writing your dissent on McCreary County v. American Civil Liberties Union of Ky. In particular, question begging, ad hominem attacks, false bifurcation, and grossly irrelevant sentimentalism are considered puerile, but that doesn't mean such are absent from Scalia's dissent.

Justice Scalia's comments about potential regrets is spot on; we should all fear the results of him playing by the rules he falsely accuses his political opponents of playing by. But just because he falsely accuses his opponents doesn't mean the PNAC court would be playing tit-for-tat; they would merely be setting fire to the Constitution with the straw-man they built for just that purpose.

Since we're on the subject of Scalia, be prepared for his reversal on majoritarianism if the Democrats should take Congress. That bird will sing a very different tune about majority rule if ever his party loses the majority. Likewise for his complaints of the non-majoritarian bench; he will do an about face faster than you can say "party hack" the day the bench is the last vestige of the failed ambitions of PNAC and the Rove/Gingrich noise machine. In a partisan blog commenter I can accept such intellectual thuggery; in our highest court it is nothing short of tragic.

# posted by

Robert Link : 10:03 AM

I would like to second mr link's reversal of J scalia's warning, ie, that he may rue the day there is a majority in the electorate and/or federal government that doesn't share his personal views.

also, a question for the pros: was ms strossen's performance as poor as it appeared to be from this lay person's perspective? she explicitly noted the predictability of J scalia's majoritarianism but seemed nonetheless unprepared to counter it effectively (eg, how about adding to the unenumerated "rights" that the majority can void at will things like sporting or not sporting a beard, selling liquor on sunday, exposing the calf, etc; prof barrett's "lost constitution" argument for unenumerated rights; et al).

scalia has his side of the argument down cold, so in the absence of an equally consistent and well presented counterargument, he's going to win a debate, which it seems to me he did handily in this instance.

-charles

# posted by

Charles T. Wolverton : 11:10 AM

ctw: was ms strossen's performance as poor as it appeared to be from this lay person's perspective?

Speaking generally and without having seen the clips I would still expect the answer to be "yes." There is a huge problem with progressive/liberal thought and argumentation: we tend to treat our interlocutors as partners in an endeavor to find truth, we tend to believe in fair play. Contrast this with the Rove/Gingrich approach in which such debates are are merely exercises in gaining power by whatever means are expedient. I've written about this, arguing that Lakoff's "Don't Think of an Elephant" misses the mark where Elgin's notably a-political "Gentle Art of Verbal Self-Defense" books actually score. It's a long standing problem; we just don't want to believe these guys have declared us their enemy and thus view us with a contempt which they like to think justifies their illegitimate methods.

Btw, love the title, "Secular Logic." Peace.

# posted by

Robert Link : 11:37 AM

robert -

yes, I'm often quite clever at things like blog names, but as you might have noticed much less clever at composing actual entries.

I read the lakoff article and think you were a bit hard on him for that one unfortunate phrase in an otherwise pretty reasonable piece. I agree with his essential theme that bush's personal intellectual deficiencies shouldn't obscure his admin's successes in implementing the R party's authoritarian, oligarchical, theocratic agenda (atho I tend to discount the often voiced assessment "it's all an act, bush is really quite smart politically" because that's confusing being effective at enacting one's agenda with having an intellectually sound agenda; it seems quite clear that in the sense most educated and informed people use the term "smart", bush doesn't make the cut). I also agree with his criticism of letting a verbal construct take on a life of its own that obscures deeper analysis, a defect of the kerry campaign that I consider to have been fatal in 2004.

However, I do agree with you that lakoff falls into precisely that trap in the phrase you quote. the way I tend to view the PNAC-type worldview is as another "religion" (I consider it no coincidence and more than just political strategy that there has been a confluence of neoconservatism and fundamentalism in the current regime, both based on dogma rather than enlightenment principles). lakoff's "spreading democracy" sounds positive whereas I would describe it something like "proselytizing for the PNAC dogma".

re the original issue of the ACLU debate, the essence of my complaint isn't that J scalia plays dirty, it's that he tries to set the rules of the game to favor his side. and in the debate, ms strossen let him do just that. J scalia's first states his rules, viz, that your rights are precisely those explicit in the constitution and none others, so on any other issue your rights are decided by the majority. then he casually lists only highly contested, emotionally charged, unenumerated "rights". the relevant point in my previous comment was that opponents should emphasize that under those rules, most quotidian freedoms are also subject to whimsical majority sentiment. if people really understood this, they might be less enamored of J scalia's rules.

-charles

# posted by

Charles T. Wolverton : 1:33 PM

Oh god, where to start. So much ripe material.

First off, if Brian really listened to or watched that debate, he should have understood that Scalia made that statement in the context of criticizing his understanding of liberal judicial philosophy. He explained constantly that liberals should be careful in advocating a constitution that can be reinterpretated by the succeeding generations according to their own social values and understandings. His point was that liberals shouldn't assume the US will always continue to increase personal liberty, etc. The US Constitition while not perfect, provides a baseline of certain protections. If construed as he does, those protections can't change (aside from by amendment), but as well the judiciary can't expand them. Liberals though try to expand upon the protections and liberties in the constitution through reinterpration of the document. This allows the expansion. However, he points out that by allowing the definition and meaning to become open to change by interpretation, it allows the change to go in both a liberty maximizing manner but also to restrict liberty (the only determinant is who is on the court and their views of what social values are relevant).

His argument is that the effort to expand liberty by redefinition of the terms of the Constitution opens up the Constitution itself to attack because terms can be redefined anyway the court wants them to be under the system of interpretation advocated by liberals.

That was his broader point.

His more specific point (in response to Brian's hyperbole) was that since liberals used the court to expand these rights, they can easily be taken away by a conservative court. If liberals had used the proper Constitional method for implementing these new rights, a conservative court wouldn't be able to touch them. But, what the court createth, the court can destroy. Moral to the story is use the democratic process to implement your social policies.

# posted by

humblelawstudent : 1:47 PM

HLS, we all understood Justice Scalia's argument. It isn't new, it just isn't very good.

# posted by

Mark Field : 3:23 PM

"Justice Scalia's argument ... isn't new, it just isn't very good."

exactly the point of my question above: you think that, FWIW, I think that, ms strossen thinks that - and yet she wasn't prepared to attack it effectively. why? how can the opposing view prevail if it's not even presented convincingly by a prominent proponent with a home-court advantage?

-charles

# posted by

Charles T. Wolverton : 5:13 PM

Mark,

Brian evidently does not, because his complaint and accusation of "tit for tat" makes little sense when Scalia's remark is taken in context.

# posted by

humblelawstudent : 6:00 PM

How is it that Scalia can make such comments without the responsibility to recuse himself when the relevant issues come before the Court?

# posted by

cassidyc : 6:53 PM

During Sunday's debate, Scalia outlined his judicial philosophy of interpreting the Constitution according to its text, as understood at the time it was adopted.

Which explains wit perfect clarity why Scalia insists that the Eleventh Amendment says precisely what it doesn't say: To wit, that it bars suits against states by citizens of that state in federal court without the state's permission.

One can argue about the "intent" of those in passing the Eleventh Amendment, and whether the language was not specific enough or otherwise unfelicitous. It does in fact,taken literally, create two different classes of citizens for identical cases based on federal jurisdiction. Whether that is wise, it's unarguable what the plain language of the amendment says.

Scalia, like some many others, hangs his hat on the "plain language" peg only when it suits his purposes.

Cheers,

# posted by

Anonymous : 11:02 AM

Arne: Scalia, like some many others, hangs his hat on the "plain language" peg only when it suits his purposes.

I think that goes to what CTW was saying/asking: Where is the list of things that Justice Scalia (or PNAC) *like* which would wither under a "plain language" interpretation? Wouldn't having such a list help show the lack of legitimacy in such arguments?

# posted by

Robert Link : 5:22 PM