Tuesday, February 16, 2016

Assessments of Antonin Scalia’s Court

Ronald Dworkin, by David Shankbone
Own work., CC BY-SA 3.0
From recent correspondence

Edited by Morris Dean

[Yesterday’s article by James T. Carney, “Justice Antonin Scalia: A judicial activist?,” provoked several communications from our readers. We share them here.]

Ronald Dworkin (1931-2013), who was perhaps the most cited, brilliant legal scholar in both the US and Britain, preferred a moral interpretation of the constitution over the so-called “original intent” interpretation by the late Justice Antonin Scalia. Dworkin wrote many enlightening articles for The New York Review of Books.
    Here is the beginning of Ronald Dworkin’s critical article, “The Court’s Embarrassingly Bad Decisions” [NY Review of Books, May 26, 2011], on bad decisions of the Supreme Court that were occasioned by Antonin Scalia and others of his conservative colleagues:
Five conservative justices now dominate our Supreme Court – Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas, and Samuel Alito. They continue to revise our historical constitution and two new cases show that the arguments they offer continue to be embarrassingly bad. One concerns contributions to religious schools; the other, public financing of elections. I will describe those cases and defend that criticism, but it might be well to notice, first, why the justices have had to resort to arguments of such poor quality.
    We cannot accuse these justices of ignoring the plain meaning of the Constitution. The popular assumption that justices can decide constitutional cases by just consulting the text of that document and the intentions of its eighteenth- and nineteenth-century authors, without relying on their own sense of justice, is simplistic and wrong. Many of the most important constitutional clauses – the First Amendment’s promise of “the freedom of speech,” for instance, its guarantee of “free exercise” of religion, and its prohibition of any religious “establishment” – are drafted in abstract language; justices must interpret those clauses by trying to find principles of political morality that explain and justify the text and the past history of its application. They will inevitably disagree about which principles best satisfy that test, and they will inevitably be influenced, in making that judgment, by their own sense of what a good constitution would provide.
    But that does not mean that the justices are free to interpret the abstract clauses of the Constitution to match their own political convictions, whatever these are.... [read more]
    A two-parter by Dworkin in April 2011 criticized the Court for some particularly bad arguments:

Part 1: “Bad Arguments: The Roberts Court & Religious Schools,” [NY Review of Books, April 26, 2011]:
...In the last few years [the conservative majority of the Supreme Court] have overruled a long series of recent and important precedent decisions and they have reversed several long-standing constitutional traditions. They have flatly prohibited even obviously sensible race-conscious social and educational policies, bolstered government’s support for religion, and progressively narrowed the scope of abortion rights. They have changed the American electoral system to make the election of Republican candidates more likely, for example by guaranteeing corporations a constitutional right to spend as much as they wish denouncing candidates they dislike. As I have argued, these various decisions cannot be justified by any set of principles that offer even a respectable account of our past constitutional history.     Consider the Court’s decision, handed down on April 4, in Arizona Christian School Tuition Organization v. Winn et al. Arizona allows taxpayers to claim, as a full credit against their state income taxes, money they contribute to school tuition organizations (STOs) that provide scholarship funds to private schools of their choosing. Schools that use a religious test for admissions or scholarships are eligible and much of the money contributed to these organizations has gone to such schools. A group of Arizona taxpayers challenged this tax credit: they said that it violates the First Amendment, which forbids states from “establishing” religion. The Ninth Circuit Court of Appeals agreed but the Supreme Court, by a vote of 5–4, reversed its decision. The Court did not decide that the Arizona scheme is constitutional; it decided rather that private citizens have no right – no “standing” – to challenge its constitutionality. [read more]
Part 2: “More Bad Arguments: The Roberts Court & Money in Politics,” [NY Review of Books, April 27, 2011]:
Consider the Supreme Court’s newest electoral reform case, also from Arizona. In their earlier Citizens United decision the five justices in the majority – Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas, and Samuel Alito—guaranteed corporations a constitutional right to use their own capital for political advertising. They said that the point of the First Amendment is to provide the electorate with as much political speech as possible. They did not deny that the political process would be fairer if candidates and political organizations were more equal in their campaign resources. But the First Amendment forbids infringing free speech for the sake of equality, they said, and so “leveling the playing field” is no justification for stopping corporations or anyone else from spending as much on political advertising as they wish. Some commentators said that the Citizens United decision would make little practical difference: though it was wrong in principle, they thought, it would not actually do much harm. They were mistaken: the decision’s impact has already proved dramatic. [read more]
Quite a number of issues are now possibly out of the conservative strong-box. According to “US supreme court: the key issues affected by death of Justice Scalia” [Molly Redden, Lois Beckett, & Edward Helmore, Guardian, February 14]:
The death of Antonin Scalia on Saturday, at the age of 79, created an opening on the US supreme court.
    Paying tribute to Scalia, President Obama said he would nominate a successor. In the Senate and on the campaign trail, however, Republicans said they would not cooperate, even to the extent of scheduling a nomination hearing in the upper house they control, at any point in the president’s final year in office.
    We could be in for a year or more with only eight justices on the supreme court, balanced four-four between conservatives and liberals. What will this – and the political identity of Scalia’s eventual successor – mean for the key issues that divide America today?
    Abortion...Guns...Immigration...Environment.... [read more]
The NY Times editorial board had a good account of “Justice Antonin Scalia’s Supreme Court Legacy” on February 13, the day after Justice Scalia died. Excerpt:
Justice Antonin Scalia, who died on Saturday at the age of 79, served on the Supreme Court for 30 years and made as big a mark on the court and on American law and politics as some of the chief justices under whom he served. It took about 10 minutes after the announcement of his death for the right wing to start screaming that the Senate should not confirm a replacement while President Obama is in office.
    Given how blindly ideological the Republicans in the Senate are, after nearly eight years of doing little besides trying to thwart Mr. Obama, it is disturbingly likely that Mitch McConnell, the Senate majority leader and architect of the just-say-no approach, will lead his colleagues in keeping Justice Scalia’s seat open, and the highest court in the land essentially paralyzed, in the hope that one of the hard-right Republicans running for the presidency will win....
    The originalist, fundamentalist constitutional ideas that have driven many of the court’s decisions were more the product of Mr. Scalia’s intellect and politics than of the other conservative justices, including Justice Clarence Thomas and Chief Justice John Roberts. Justice Scalia wrote few of the divided court’s 5-to-4 decisions, perhaps because the chief justices were aware that Justice Scalia’s lack of self-control in his judgments made him unreliable in those cases.
    One prominent exception was his majority decision in District of Columbia v. Heller, in which the court ruled for the first time that the Second Amendment granted an individual right to bear arms. But Justice Scalia did say that that right was not absolute, and that certain weapons like assault rifles could be banned, but the case still set the court’s fundamentalist approach to gun rights.
    From abortion rights to marriage equality and desegregation, Justice Scalia opposed much of the social and political progress of the late 20th century and this one. He wanted to overturn the Roe v. Wade decision on women’s rights to privacy, he dissented on the decision that said anti-sodomy laws were unconstitutional, and he dissented on decisions that it was unconstitutional to execute mentally disabled or teenage prisoners. He disapproved of the Miranda decision that requires police to read prisoners their rights. [read more]
One NY Times op-ed columnist, Ross Douthat, came to Scalia’s defense, in “Antonin Scalia, Conservative Legal Giant” [February 13]. Excerpt:
He was important because of his intellectual influence. There were and are many legal theories and schools of constitutional interpretation within the world of American conservatism. But Scalia’s combination of brilliance, eloquence and good timing — he was appointed to the court in 1986, a handful of years after the Federalist Society was founded, and with it the conservative legal movement as we know it — ensured that his ideas, originalism in constitutional law and textualism in statutory interpretation, would set the agenda for a serious judicial conservatism and define the worldview that any “living Constitution” liberal needed to wrestle with in order to justify his own position.
    This intellectual importance was compounded by the way he strained to be consistent, to rule based on principle rather than on his partisan biases — which made him stand out in an age when justices often seem as purely partisan as any other office holder. Of course there were plenty of cases (“Bush v. Gore!” a liberal might interject here) in which those biases probably did shape the way he ruled. But from flag burning to the rights of the accused to wartime detention, Scalia had a long record of putting originalist principle above a partisan conservatism. And this, too, set an example for his fellow conservatives: The fact that today the court’s right-leaning bloc has far more interesting internal disagreements than the often lock-step-voting liberal wing is itself a testament to the premium its leading intellectual light placed on philosophical rigor and integrity. [read more]
    My response to Douthat is, Maybe. The question is: How well will Justice Scalia stack up against the Supreme Court Justices of previous eras, like Douglas, Warren, and others who, in the mid-20th century cleared away the thicket of strangling doctrine that had ensnared this country in box for which there seemed to be no out? I’m talking here about decisions making the Bill of Rights applicable to state law; I’m also talking about serious reforms in criminal cases – the right to counsel, the rights of citizens to be free from arbitrary search and seizure. I’m also speaking of Brown v. Board of Education. And there is much more.
    When interested persons look back at what was accomplished in the so-called liberal era of the court and compare it to decisions written by Scalia, or decisions in which he played a major role, I think his achievements, whether we agree with them or not, would not begin to compare with those of the justices in the so-called liberal era of the court. Moreover, the very strait-jacket type of analysis he espoused contributed to serious issues of political gridlock in this country. Our constitutional system of government is so full of checks and balances that gridlock can easily result. The doctrine of judicial review of Congressional enactments that was established in Marbury v. Madison is not clearly stated in the Constitution. What would have happened if Scalia had been the Chief Justice instead of Marshall? I suspect that some of the political ills we’re experiencing today can be laid to Scalia’s influence.

Copyright © 2016 by Morris Dean


  1. Thanks! I'd only seen two of these, and the others had valuable information. On the whole, they reinforce the idea that one person's terrorist is another person's freedom fighter. Your judicial activist is my strict constructionist, and vice versa.

    Scalia's textualism founders on several grounds. For just one, we can't finesse the problem of how to apply a passage to a situation that could not have been conceived by the author. E.g., surely gun laws written to apply to muzzle loaders would have been written differently if the authors could have foreseen assault rifles.

    1. Thank you, Chuck. And there will be another piece on "original intent," or "textual originalism" on Sunday. Justice Scalia's death has started lots of conversation.