131. Does Justice Scalia believe in anything?
Justice Antonin Scalia expresses himself so forcefully in his opinions and speeches, and is so uninhibited about insulting anyone who disagrees with him, that it's natural to assume he actually believes in something. Most people interested in public affairs are sure they know what it is. I wonder if any of them are right.
For instance, in Apprendi v. New Jersey, Scalia wrote:
Justice Breyer proceeds on the erroneous and all-too-common assumption that the Constitution means what we think it ought to mean. It does not; it means what it says.
It's classic Scalia: expressing his contempt for Breyer in a parody too gross to be taken seriously, while setting forth his alternative vision with an aphorism that suggests settled conviction.
On the very next page of the official volume, Justice Thomas wrote of "the codification of the common-law rights in the Fifth and Sixth Amendments". Scalia joined this part of Thomas's opinion. So Scalia agrees (or, at the time he was given the opportunity to sign on to Thomas's draft, agreed) that the fifth and sixth amendments codify "the common-law rights".
That's not what the Constitution says. It's what Thomas and Scalia think it ought to mean.
Just this week, in U.S. v. Gonzalez-Lopez, Justice Alito made a strong argument based on the text of the sixth amendment. He wrote:
The majority makes a subtle but important mistake at the outset in its characterization of what the Sixth Amendment guarantees. The majority states that the Sixth Amendment protects “the right of a defendant who does not require appointed counsel to choose who will represent him.” Ante, at 3. What the Sixth Amendment actually protects, however, is the right to have the assistance that the defendant’s counsel of choice is able to provide. It follows that if the erroneous disqualification of a defendant’s counsel of choice does not impair the assistance that a defendant receives at trial, there is no violation of the Sixth Amendment.
This, you might think, is exactly the sort of text-based interpretation most likely to appeal our nation's leading "textualist," Justice Scalia. But guess who wrote the majority opinion rejecting it? Guess who held the sixth amendment up to a light bulb and discovered a previously-unnoticed right written in lemon juice - the right of a rich person to have the services of any attorney he chooses, even one who doesn't belong to the bar of the particular state?
"Rich person" is not an invidious phrasing, by the way. "The [sixth] Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts." Only those with the means can enjoy the new sixth amendment right invented by Scalia and the Court's "liberals," just as only those with the means get to sample from Forbes' list of the 12 best places to go to prison. Justice Scalia held that the wealth-based distinction emanated from the penumbra of the words actually found in the sixth amendment, though I'm not sure that was the exact phrase he used.
When he's not being characterized as a "textualist," Scalia is generally termed an "originalist." In fact, that's what he calls himself. (Here he is again.) An originalist, Scalia said, believes "that you give the text the meaning it had when it was adopted." Some of our most brilliant legal scholars take Scalia at his word. In a recent New Republic, sometime-blogger Cass Sunstein wrote that "Justices Antonin Scalia and Clarence Thomas believe that the Constitution should be read to mean what it meant at the time of ratification."
In 2004's Crawford v. Washington, Justice Scalia went through a parody of a historical analysis in an effort to present himself as a champion of the originalist school. But in this month's Davis v. Washington, the Court's first attempt to answer the question that's been bedeviling every criminal court in the country for two years (what in the world is Crawford supposed to mean?), he abandoned the originalist view, swinging all the way over to the fuzzy multi-factor test. (See post 127.)
Scalia actually went a good deal further than that: he renounced the originalist viewpoint of his earlier opinion. Responding to Justice Thomas' principled originalist dissent, he wrote:
Restricting the Confrontation Clause to the precise forms against which it was originally directed is a recipe for its extinction. Cf. Kyllo v. United States, 533 U. S. 27 (2001) .
(Kyllo was also a Scalia opinion. Scalia is that much-admired thing, a swing vote, in criminal cases, except for death penalty cases, a field in which he has managed to work ahead of the rest of the Court, delivering his votes years in advance of actually hearing the cases.)
Note the mission creep built into Scalia's rejoinder: to save the sixth amendment from extinction, the Court must find a new reason for its continued existence, much as the base-closing commission tries to find new missions for obsolete military bases that are particularly important to their local economies. The power the sixth amendment gives the Supreme Court comes first, the reason for that power's existence is a detail to be filled in later.
Professor Bainbridge recently summed up all there is to say about Scalia's constitutional beliefs:
Scalia goes back and forth between originalism, textualism, and traditionalism with no apparent hierarchy for resolving conflicts between the three approaches nor any consistent metric for deciding which to apply in any given case. It is, perhaps, his greatest weakness as a jurist and the main reason his historical legacy is likely to be relatively modest.
Wednesday, June 28, 2006 at 06:58PM in Individual justices 
Reader Comments (4)
I respond to the end-of-term statistics report on my blawg, accessible by clicking on my URL. I also of course link to this post. :)
You should be careful with the language you use in your articles. Your article uses the same sort of bluster that you accuse Scalia of. It has the clever, "gotcha" attitude that often makes me cringe when I read Scalia's opinions.
The last part of your article is flat-out ridiculous. Even at this point in his Supreme Court career, Scalia is unquestionably the Justice who has done the most to impart his point of view on the Court. He may have done it in a cocky way you do not like, but done it he has. Every Justice who sits on that Court will take a harder look at the language and history of the Constitution on any Constitutional issue the Court confronts – because of Scalia,
Your article is much mistaken in categorizing Scalia as all over the map and inconsistent in his professed approach. Rather, as he has carefully explained: Yes, he is an originalist, but if the forces of society and government have moved outside some of the original common law parameters and definitions, then he thinks it most important to consider those changes. His opinion in Crawford makes this plain, and in the subsequent "Crawford" decision he makes a very reasonable follow-up analysis (an analysis that was obviously going to have to be made, precisely because the definition of "testimonial evidence” at this time in our society is not readily apparent from the tradition of the common law).
Your interpretation of Scalia's decision in the right-to-counsel-of-choice case is very shallow. You fix on one sentence by Alito and then proceed to trash Scalia. Scalia has never said that he is prohibited from using logic or intellect in his decisions! The entire focus of the right-to-counsel-of-choice decision was on the remedy, not the right. Even Alito took the right for granted; he only differed on the remedy for a violation of the right. Scalia used some simple logic to show that any other remedy besides automatic reversal would necessitate analysis by a reviewing court that simply could not be done with precision. Scalia's decision had almost nothing to do with originalism, because little originalism was demanded in the decision. Logic was demanded. Now, it is true that you may prefer the logic of Alito, but don't play games and say that what Scalia did makes him a judicial hypocrite.
I am continually amazed that I have so far not found any analysis of Scalia that does the man justice, both pro and con. Here is the way I suggest such an analysis might proceed:
PRO: Scalia has a razor-sharp mind. It is difficult to fault his intellectual interpretation of language, construction or the original intent of the Constitution in any opinion he has ever made (he is also extremely sharp in his analysis of Supreme Court precedent). The man is like a bear trap when he gets his mind around a subject. He is also not entirely fixed in stone, that is, for example, he is not purely anti-defendant. His work in Blakely and the Apprendi line of cases, as well as in the Confrontation Clause cases shows this. In the latter cases he was the prime mover. It is hard to imagine that Crawford would have ever happened without the precedent work Scalia had done in a number of dissents on the issue (right from his first dissent in a child-abuse case, where he allied himself with Brennan and Marshal – one of the most unusual alliances in the history of the Court). He also has a decent respect for Court precedent, even in caselaw he obviously would have decided differently. He is not a Stonehenge character (as Justice Thomas could be accused of being).
CON: Scalia has never practiced law. Especially criminal law as a defense attorney. He has a really myopic and Pollyannaish view of lawyers, cops, judges and prosecutors. He thinks they are invariably a great and honest crew. This is a dangerous point of view in my opinion, and one he would never have if he had practiced criminal law. This shows up in many of his opinions. He so willing to take the integrity of the parties for granted, or any violations on their part as exceptions to the rule. Thus, he invariably will not add teeth to the rights of defendants (and citizens) and meaningfully sanction errors. This is plain, for example, in Mickens v. Taylor in regards to judges, and in also cases dealing with attorneys and the right to the effective assistance of counsel. His view of Miranda is entirely an academic view, almost a philosophical one, which is light years away from the practical benefits of Miranda (even 99% of the police forces in this country think Miranda is a good thing). His apparent intent to overrule the exclusionary rule is in great part a product of his disconnection from the liberties police will take with the Fourth Amendment. It is a truly frightening prospect if this rule is done away with.
The man is not entirely consistent, and he will play games when he wants to. The obvious case is Bush vs. Gore (a decision that should live in infamy). And too, you can see it in other cases where he conveniently goes “dumb”. For example, in the line of cases that deal with dog-sniff searches, he ignores common sense. He never answers Justice Souter’s research that shows that the premise of the entire line of cases is close absurd on its face (“the infallible police dog” theory). Of course, he (along with the rest of the Court) went on a walkabout in the Jones v. Clinton. Gore and Jones are especially disturbing in regards to Scalia. I mean, how could a man of such intellect and “principle”, get involved in such rubbish – unless he has a prejudiced, partisan streak?
Scalia is overly strong on intellectual discrimination, at the expense of feeling discrimination. This makes him surprisingly blind in certain cases. For example, in my opinion it can only be his love of technical nuance that could have got him to go along with the majority in the medical-marijuana case. Justice Stevens’ (a Justice I generally like) majority opinion was a tortured monstrosity, a sort of phantasmagoric journey through a tangled web of law by an idiot savant; whereas Justice Thomas’ dissent was a thing of beauty. Even a child could see he was correct. Somewhat in the same vein, I was surprised that Scalia’s love for the intent of the Founders (a love I do not doubt) somehow did not pick up on a basic thrust of the Bill of Rights and the First Amendment, and thus allowed him to write the majority opinion in the Oregon peyote case. In that case he got the basic question right – that the tension was between the First Amendment, and a State’s right to enforce its criminal statutes. But how could he have ignored the feeling in the language of the First Amendment (indeed, in the entire Bill of Rights)? It is difficult to imagine stronger, more categorical language. Unless I am badly mistaken, the entire thrust of the Bill of Rights is the point of view of a citizen in confrontation with the government, not vice versa. Thus, a State would have to give way if it attempted by criminal statute to interfere with a legitimate right of the people to practice religion. Also, the facts of the case were entirely benign. It wasn’t as if some group was attempting to co-opt the First Amendment in order to shoot heroin. The Native American Indians have a lengthy and positive history with their use of peyote, and it is central to their religion.
Finally – and here I agree with your comments – Scalia is overly cocky, and he goes out of his way to pontificate to others on the Court. On its face, this might not seem to be a critical flaw. After all, Bobby Fischer was a borderline nutcase, and yet no one faulted his ability to play chess. But Fischer himself once said something interesting: “I don’t believe in psychology; I believe in good moves.” And over the board he was known as a complete gentleman. It appears that when Fischer was doing his job, he never allowed his “aberrations” to interfere with his work. In Scalia I think the opposite occurs. He is so confident of his command of language and of his academic discernment that it has led to a type of contempt for others’ ability. And Scalia can learn much from his brethren, especially from the more neutral members of the Court – Ginsberg, Breyer, and Souter. These three seem to me to be possessed of a humility that enhances their work in remarkable ways. I find myself more and more looking for their opinions, and finding truth in them, and also enjoying the nexus between truth and humility. In my opinion, instead of picking arguments with Breyer, Scalia would do well to shut up for a while, and go a little deeper in himself and ask himself why his brethren are disagreeing with him; and he should ask from the part of himself that still feels and doesn’t think so much. He need fear nothing in such an investigation. He may find that he still agrees with his own assessment of an issue. And if he finds that the view of another is inherently as worthy as his own and perhaps worth another look, then he will have begun the journey in stature that all great men eventually take.
Anyway, that is it for now, and I sincerely ask you guys to come upscale in your articles; we liberals (yes, I am one) deserve better.
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