308 Scalia Still Speaks

As we witness the struggle surrounding President Trump’s recent Supreme Court nominee (Brett Kavanaugh) we’d be wise to remember what happened in 1987 when President Reagan similarly nominated Robert H. Bork.  As Bork noted in The Tempting of America:  The Political Seduction of the Law (NY:  The Free Press, c. 1990), that event revealed a deepening philosophical cleavage dividing the country.  He set forth a historical overview, describing how the Supreme Court has become increasingly politicized inasmuch as it has abandoning the more limited role assigned it by the Constitution.  He also discussed some of the great legal theorists who have influenced American jurisprudence.  For example, Oliver Wendell Holmes and Learned Hand, two great judges, sharply differed in their understanding of the judiciary.  After the two lunched together and Holmes got into his carriage, Hand ran after him, saying:  “Do justice, sir, do justice.”  Stopping the carriage, Holmes reproved his friend, saying:  “That is not my job.  It is my job to apply the law.”  Holmes’ commitment to simply apply the law, not to dispense “justice,” is the strict constructionism Bork endorsed.  

    Apart from the notorious 1856 Dred Scott decision, whereby Justice Roger Taney first enunciated the now popular notion of “substantive due process,” thereby imposing his own opinion on the Constitution and issuing a notoriously bad pro-slavery decision, the Supreme Court and leading theorists generally upheld a strict constructionist viewpoint throughout the 19th century.   At the beginning of the 20th century however, progressive tides altered the legal seashore.  Notable, if isolated, judicial decisions, espec­ially during the New Deal era, generated a tidal wave of revisionist judicial ac­tivism which characterized the Warren Court in the 1950s.  Soon thereafter (obviously legislating from the bench) Justice Berger and like-minded justices issued edicts such as Roe v. Wade (1973) which illustrated revisionism at its worst.  Without providing “an argument that even remotely begins to justify” the decision, the Court opened a deep division still affecting the nation.  

     The activism of the Court’s justices has been widely approved by professors in the nation’s law schools.  No doubt se­lecting one of the most egregious example, Bork wrote:  “Sanford Levinson, of the University Texas law school, advances an extremely skeptical, indeed nihilistic, theory of ‘constitutional’ interpreta­tion.  Levinson says that ‘The “death of con­stitutionalism” may be the central even of our time, just as the “death of God” was that of the past century.’  In a major law review article, Levinson explained that ‘for a Nietzschean reader of constitutions, there is no point in searching for a code that will produce “truthful” or “correct” interpretations; instead, the interpreter, in [phi­losopher] Richard Rorty’s words, “simply beats the text into a shape which will serve his own pur­pose”’” (p. 217).  

Given his opposition to such revisionism, Bork encountered a steamroller of hostility when he appeared before the Senate for his confirmation hearings.  As soon (45 minutes to be precise) as President Reagan nominated Bork, Senator Ted Kennedy launched a vicious attack, claiming that “‘Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters . . . and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy’” (p. 268).  Speaking through senators such as Kennedy and Joe Biden, a chorus of special interest groups—the ACLU, NOW, Planned Parenthood, et al.—mounted an anti-Bork crusade.  The charges made against him were virtually all false, deliber­ate lies employed to orchestrate the emotions of the masses.  

     For example, Gregory Peck, in an advertisement funded by People of the American Way, asserted Bork favored poll taxes and literacy tests, long used to bar blacks from voting in the South.  In fact, Bork had never favored such.  Ohio’s Senator Metzenbaum loudly bellowed that the nation’s women feared Bork, wresting out of context some decisions he had made as a federal judge.  Senator Joe Biden’s Biden Report assailed Bork for his judicial errors—but without citing a single case as evidence!  In Bork’s opinion, this campaign against him resulted from the fact that he had dared criti­cize the revisionist ideology which underlay sig­nificant decisions of the Warren and Berger courts.  The fact that he found Roe v. Wade judicially flawed further ignited the flames of opposition to his appointment.  And it is clear that today’s obsession with politi­cal correctness makes Supreme Court justice hear­ings an overly-politicized arena wherein senators and special interest groups secure a national pulpit for at least a passing moment.

     Though George Will may overstate a bit, I think his assessment still rings true:  “This is Robert Bork’s brilliant report from the front lines in an ongoing cultural war.  At stake is nothing less than constitutional government.  It is a sobering account of the extent to which judicial willfulness has degraded the elegant constitutional system we were given.”

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Fortunately for our “elegant constitutional system,” the year before Robert Bork was denied a seat on the Court another Reagan nominee, Antonin Scalia, sailed through the Senate with a 98-0 vote!  And reading some of his writings provides us important insights into the both the man and his contributions to American Jurisprudence.  In Scalia’s Court: A Legacy of Landmark Opinions and Dissents (Washington:  Regnery Publishing, c. 2004, Kindle Edition), Scalia made available some of his most important decisions, given context and perspective in “edits and comments” by Kevin Ring, who emphasizes that:  “One trait that nearly everyone praised was Scalia’s brilliant literary style.  His ‘gift for analysis and words,’ one progressive law professor said, made him ‘the best judicial stylist since Oliver Wendell Holmes. Through his opinions, he exerted gravitational pull on the law, even when he lost.  Indeed, during his nearly thirty years on the Court, Scalia was its premier conservative, intellectual gladiator, and wordsmith.  To be sure, many important and influential conservative jurists have served on the High Court, and there remain today others who share Scalia’s textualist and originalist philosophy.  Yet it was Scalia who gave life to Aristotle’s injunction that ‘it is not enough to know what to say—one must know how to say it’ (#54-61).  

Words truly matter.  Scalia often told his clerks that “terminology is destiny.”  So he wrote with great care.  One of Scalia’s sons, Christopher once asked his “father if writing was easy for him.  ‘No,’ he said. ‘It’s hard as hell.’”  Speaking to a group of legal writers (“Writing Well”), Scalia credited “time and sweat” with making the difference between “ordinary” and “good” writing—it’s largely a matter of “writing, revising, rethinking, and writing again.”  Still more, Scalia routinely “put complex arguments about fundamental principles in easy-to-understand terms” (#86).  And he could be quite plain-spoken, expressing “his outrage at the decisions reached and lack of judicial restraint demonstrated by his colleagues on the High Court.  Scalia concluded one opinion, ‘The Court must be living in another world.  Day by day, case by case, it is busy designing a Constitution for a country I do not recognize’” (#95).  Dissenting from the majority in Casey (Justice Kennedy’s convoluted rationale for upholding Roe), Scalia’s words could easily have been written with a word burner, searing the pages. 

Scalia emphasized “textualism”  and “originalism” in writing his opinions.  Differing from some “originalists,” who sought to discern the “intent” of the legislators, Scalia sought to find the “original meaning” of the law as written and understood in its day.  When judges interpret laws, they should do so “reasonably,” looking for the “ordinary meaning” of words as used by the legislators who passed them.   Unwilling to probe into anyone’s “original intent”— as if one could understand the inner thoughts of persons, legislators included, Scalia tried to restrict himself to the words actually written.  (Both positions were rather unique to him when he joined the Supreme Court in 1986, but increasing numbers of young, conservative lawyers and judges have followed his lead.)  We have legislators to implement the “will of the people,” to care for current concerns.  We have a Constitution to secure more permanent things, to establish durable guidelines needed to resist those momentarily fashionable currents so pronounced in democracies.  Thus the notion of a “living Constitution,” continually changing to suit public opinion, reducing the law to whatever judges approve, was an anathema!  

One proponent of the “living Constitution,” Justice William Brennan, “seemed to think the job of Supreme Court justice was similar to that of Senate majority leader.  Brennan famously remarked, ‘You can do anything around here with five votes.’ But Scalia did not want to do ‘anything,’ he wanted the Court to do the right thing” (#377).  “With bracing political incorrectness,” Ring says, “Scalia said he likes his Constitution ‘dead.  He argued that only a fixed and enduring charter could keep judges from reading new fads into the Constitution and less popular mandates out” (#207).  It was justices believing in the “living Constitution” who recently conjured up the right to same-sex marriage, whereas a textualist like Scalia insisted such a “right” should be instituted by a Constitutional amendment, not decreed by the Court.  Scalia also sought to preserve the federal system, the separation of powers set forth in the Constitution.  The federal government has three separate branches, and the states have important powers reserved to them.  He considered federalism “the most important bulwark against government tyranny, even more important than the Bill of Rights” (#742).  In one of his dissenting opinions he declared:  “While the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty” (#996). 

Turning to Scalia’s position on crucial social issues, we find him insisting that inasmuch as race prejudice is wrong it is wrong even when implemented for allegedly benevolent reasons, i.e. affirmative action.  Thus he disagreed with Justice O’Connor’s view “that, despite the Fourteenth Amendment, state and local governments may in some circumstances discriminate on the basis of race in order (in a broad sense) ‘to ameliorate the effects of past discrimination.’”  However “benign” such strategies appear, they “can no more be pursued by the illegitimate means of racial discrimination than can other assertedly benign purposes we have repeatedly rejected.  The difficulty of overcoming the effects of past discrimination is as nothing compared with the difficulty of eradicating from our society the source of those effects, which is the tendency—fatal to a Nation such as ours—to classify and judge men and women on the basis of their country of origin or the color of their skin.  A solution to the first problem that aggravates the second is no solution at all” (#1242). 

Throughout his tenure on the Court Scalia proved to be a consistent critic of abortion rights, for  nothing in the Constitution or in the American tradition provided for such.  In one crucial case, Webster v. Reproductive Health Services (1989), he argued the Court should overturn Roe.  In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), wherein Justice Kennedy famously celebrated the “mystery of human life” and the freedom of everyone to manufacture his own morality, Scalia set forth “one of the most caustic opinions ever written by a justice of the Supreme Court” (#1623).  Reaffirming his constitutional stance, he said:  “The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so.  The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting” (#1639).  When the Court imposes its position on the public, as was done with Roe, “It is difficult to maintain the illusion that we are interpreting a Constitution rather than inventing one, when we amend its provisions so breezily” (#1751).  Sad to say:  “The Imperial Judiciary lives.  It is instructive to compare this Nietzschean vision of us unelected, life-tenured judges—leading a Volk who will be ‘tested by following,’ and whose very ‘belief in themselves’ is mystically bound up in their ‘understanding’ of a Court that ‘speak[s] before all others for their constitutional ideals’—with the somewhat more modest role envisioned for these lawyers by the Founders” (#1874). 

Throughout American history, the Supreme Court had never dealt clearly with the Second Amendment’s right to “keep and bear arms.”  But in 2008, in District of Columbia v. Heller Justice Scalia successfully argued (citing definitive historical evidence) the case for an armed citizenry, individually entitled to self-defense.  Responding to those who insisted the Second Amendment applied only to a state-controlled “militia,” Scalia wrote:  “Nowhere else in the Constitution does a ‘right’ attributed to ‘the people’ refer to anything other than an individual right” (#2152).  Careful study of 18th century state constitutions shows that individuals were guaranteed the right to “bear arms,” and one of the Founding Fathers, Justice James Wilson, upheld a person’s right to defend himself or his home.  Scalia then supported his view with citations from both Blackstone’s Commentaries and St. George Tucker’s support of “the Blackstonian arms right as necessary for self-defense.”  Tucker insisted the Second Amendment “‘may be considered as the true palladium of liberty. . . . The right to self-defense is the first law of nature’” (#2446).  Justice Joseph Story, whose commentaries give us great insight into the ways the Founders understood the Constitution, “wrote:  ‘One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offense to keep arms, and by substituting a regular army in the stead of a resort to the militia” (#2483).

Scalia’s Court contains illuminating sections devoted to the death penalty, religious liberty, illegal immigration, homosexuality, Obamacare, free speech etc.  Though many of his opinions were dissents, they show a fine legal mind at work, shining light on topics at the heart of America’s current culture wars.  An editorial in the Wall Street Journal, commented, at his death:  “For some 29 years he defended the original meaning of the Constitution against the legal fads and inventions of more political Justices, bequeathing a judicial legacy even in dissent that will carry long into the future.  Justice Scalia may have been more consequential than any Justice whose jurisprudence so rarely carried a majority of the Court” (#8053).  

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Apart from his judicial work, Antonin Scalia gave speeches to various groups, ranging from his children’s high schools to learned legal societies, addressing topics as diverse as the arts, sports, hunting, education, and good writing as well as legal concerns.  Here we see the man so beloved my most everyone who knew him—witty, generous, self-deprecating.  In her forward to Scalia Speaks: Reflections on Law, Faith, and Life Well Lived (The Crown Publishing Group, c. 2017), Ruth Bader Ginsberg (a colleague with whom he continually disagreed) writes affectionately of his talent to make “even the most sober judge smile.”  Serving alongside him, she “occasionally pinched myself hard to avoid uncontrollable laughter in response to one of his quips.”  To her:  “This collection of speeches and writings captures the mind, heart, and faith of a Justice who has left an indelible stamp on the Supreme Court’s jurisprudence and on the teaching and practice of law.”  

In some of his speeches he focused on this nation’s citizens.  Though properly proud of his Italian heritage and encouraging other ethnics to embrace their own, to him:   “What makes an American is not the name or the blood or even the place of birth, but the belief in the principles of freedom and equality that this country stands for” (p. 14).  To Scalia, one of America’s strong suits, “one of the reasons we really are a symbol of light and of hope for the world, is the way in which people of different faiths, different races, different national origins, have come together and learned—not merely to tolerate one another, because I think that is too stingy a word for what we have achieved—but to respect and love one another” (p. 26).  This results from unique legal traditions, such as the Bill of Rights, but “it is the beginning of wisdom in this area to acknowledge that the Constitution says what it says.  And the fullness of wisdom is to recognize that the crowning achievement of America is not the Bill of Rights (every modern banana republic has one) but rather the structure of government and the democratic tradition that make a Bill of Rights enforceable according to its terms, and not according to the wishes of the ruler—be that ruler a generalissimo or a majority of the electorate” (p. 51).

Thus he was deeply committed to the Constitution as written!  “Unlike any other nation in the world,” he said, “we consider ourselves bound together, not by genealogy or residence but by belief in certain principles; and the most important of those principles are set forth in the Constitution of the United States” (p. 158).  In one of his speeches he quoted a long passage from Benjamin Franklin’s final message to the Constitutional Convention.  Though Franklin confessed he did not fully endorse all its provisions, he noted that “there is no form of Government but what may be a blessing to the people if well administered” and doubted “whether any other Convention we can obtain may be able to make a better Constitution.”   In fact, he was amazed that the proposed document approached as “near to perfection as it does.”  America is indeed blessed, for its founding documents enabled it to become a very special place.  That clearly means that “a judge must be, above all else, a servant of the law—and not an enforcer of his personal predilections” (p. 170).  Thus Scalia strongly objected to the notion of a “living constitution” that would allegedly adjust to what one Court justice labeled “the evolving standards of decency that mark the progress of a maturing society.”  With incisive wit, he concluded:   “The living constitutionalist is a happy fella, because it turns out that the Constitution always means precisely what he thinks it ought to mean” (p. 212).

Scalia never hesitated to defend his deeply-ingrained Christian faith in a culture increasingly hostile to such.  “As one who believes in God, and who believes that those nations who love or at least fear Him, and do His will, will by and large prosper,” he said, “I regret this secularization of our country, or at least of our intellectual classes” (p. 130).  In one of the speeches he gave dozens of times (titled “Not to the Wise:  The Christian as Cretin”), he explained that “‘The Christian as Cretin,’ is meant, of course, to be a play on words.  And it is a wordplay that has some etymological basis. The English word cretin, meaning ‘a person of deficient mental capacity,’ in fact derives from the French word chrétien, meaning ‘Christian,’ which was used in the Middle Ages to refer to the short, often grotesque, severely retarded people who were to be found in some remote valleys of the Alps—perhaps the result of excessive inbreeding.”  Thinking about this, Scalia suggested that “the equivalence of the words Christian and cretin makes a lot of sense.  To be honest about it, that is the view of Christians—or at least of traditional Christians—taken by sophisticated society in modern times” (pp. 107-108).  But in that respect, little has changed since the days of St. Paul, who acknowledged that the world’s elites would generally brand Christians “fools.”  Christians simply are—and ought to be—different from the world!  Such differences clearly appear when sexual questions arise, for “the worldly ideal is not chastity, but safe sex” (p. 121).

While defending his faith, Scalia staunchly upheld the American commitment to the separation of church and state.  “In the last analysis the most important objectives of human existence—goodness, virtue, godliness, salvation—are not achieved through the state; and those who seek them there are doomed to disappointment” (p. 137).  And what his speeches reveal is this:  Scalia modeled not only first-rate jurisprudence but a good man fully aware of higher principles found not on laws but in permanent things.