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Tuesday, September 26, 2006
Happy Anniversary, Justice Scalia
Twenty years ago today Antonin Scalia was sworn in as an Associate Justice of the Supreme Court. The years since have seen him produce several of the most memorable opinions in the history of American law, and have treated us to the best use of language on the Court since Robert Jackson's tenure there. Justice Scalia has been controversial because he has challenged us to be consistent in our application of legal theory and to think about the law from a top-down, principles-first perspective, in contrast to the incoherence that so plagued the Burger Court and that continues to affect all courts to some extent.
In doing so, Justice Scalia has had a tremendous effect on the law -- one made all the more remarkable because of the frequency with which he fails to obtain a Court for his positions. Though many disagree with his methodology and his conclusions, there can be no doubt that he has changed the way legal arguments are made, and that the views he has championed carry much more weight now than they did twenty years ago because of the voice he has given to them. Debates about the most fundamental aspects of judging -- how to interpret the Constitution and statutes -- are largely discussions about Justice Scalia's articles and opinions on originalism and textualism. Debates about the most fundamental aspects of American government -- the separation of powers and (to a lesser extent) democratic self government -- focus on Justice Scalia's ideas.
Others, including columnists, lower-court judges, and politicians, surely can lay claim to publicizing the arguments that undergird Justice Scalia's jurisprudence, but none has been as eloquent as he has, and none has done more to affect the law in the last twenty years as he has. Best wishes, and congratulations.
Posted by Michael Dimino on September 26, 2006 at 12:57 PM in Law and Politics | Permalink
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Comments
"andy: I guess we read the privileges and immunities clause of the 14th Amendment and the 9th Amendment differently."
Indeed we do differ, not that there is anything wrong with that. So long as your (or my) reading isn't based on political ends, I wouldn't criticize.
Posted by: andy | Sep 27, 2006 4:52:07 PM
A happy anniversary indeed! I wrote a celebratory post trying to pick out five opinions from the last twenty years that stood out as, if not exectly "favorites", then at least notable and at most, best of breed. As it turns out, picking just five is a tough job...
Posted by: Simon | Sep 27, 2006 8:25:05 AM
andy: I guess we read the privileges and immunities clause of the 14th Amendment and the 9th Amendment differently. Of course, I take that part of the 14th to encompass all of the Bill of Rights, so I'm already outside the mainstream.
Posted by: billb | Sep 26, 2006 11:19:09 PM
"Andy: perhaps reading through the entire Leiter post would be informative. You're now discrediting his thoughts on jurisprudence because he favors impeachment of Bush -- that's, for lack of a better word, bogus on your part."
Leiter's blog is basically an anti-bush rant. I can't take anything taht guy says seriously. I can't take anything right-wing nuts say seriously, either.
I just picked up Cass Sunstein's "Radical in Robes" today; he is a smart guy whose articles I have enjoyed immensely. The intro purports to refute "originalism," and I'm looking forward to seeing what he has to say about it.
as far as Balkin-- again, the "HE'S POLITICAL!" arguments don't resonate with me; I favor the same legal methods as scalia, and my political desires could not be more different from his. I simply cannot accept that textualism is the sneaky method of evil conservatives to promote their agenda; it may have the effect of advancing conservative values, but I do not think that that is what necessarily what one motivates one to employ such a method (again, i'm a minority, Gore-voting, Kerry-voting, atheist, pro-abortionist in favor of textualism and a "restrained" judiciary.)
Posted by: andy | Sep 26, 2006 10:25:29 PM
Andy: perhaps reading through the entire Leiter post would be informative. You're now discrediting his thoughts on jurisprudence because he favors impeachment of Bush -- that's, for lack of a better word, bogus on your part.
How about Jack Balkin? "Scalia repeatedly complains about judges who write their political preferences into law; once again, he needs to take a good hard look in the mirror."
Posted by: anon law student | Sep 26, 2006 10:01:50 PM
oh, and anon law student, i clicked on the Leiter link, but stopped after reading the first 10 words ("In my discussion of the constitutional case for impeaching Bush"). i'd be interested in hearing cases against originalism from persons whose opinions aren't completely slanted by politics.
Posted by: andy | Sep 26, 2006 7:07:46 PM
the "political" accusations never resonate with me. yes, scalia is a catholic conservative who is anti-abortion. it'd be silly to suggest otherwise but then, a conservative tenor runs through most of our laws.
i do not see how concluding that there is e.g. no right to abortion in the constitution necessarily deems one's jurisprudence "political." i am, for example, , atheist, pro-abortion, minority who hails from california and who happily shelled 60 bucks over to attend a MoveOn concert. Yet, I don't see anything in the first amendment that says that a *state* can't pass a law setting aside a few minutes for school prayer, and i don't see anything in the constitution that guarantees a right to "privacy." as a political matter, i am extremely opposed to school prayer and anything jeebus-related, and i surely support a woman's right to choose. but yet, as a *legal* matter, if i were a judge (assuming no stare decisis, which is a big assumption), i wouldn't hesitate to condone school prayer or an anti-abortion law, even though i find both profoundly stupid.
whether "originalism" is good or bad, i'm not qualified to conclude, though i do think it's better than the "impose your own beliefs" approach (see: larry tribe). and, again, being a minority/atheist/pro-abortionist, i have no doubt that originalism runs contrary to my political interests. but yet, believe it or not, i've decided to devote my entire working life to the practice of law, and value the integrity of the interpretation process (specifically, textualism, and perhaps originalism) much more than i do my own political leanings. i'm inclined to think that scalia feels the same way, at least as far as statutory interpretation is concerned.
i'm not sufficiently familiar with either conlaw or scalia's conlaw jurisprudence to firmly opine on the consistency of his views in that area, but the "political" charge seems misplaced-- doesn't he frequently side with the liberals in criminal law cases, flag burning cases, etc.?
it's perhaps unfortunate that people (on both sides of the aisle) are so jaded with the judiciary, or so invested in their own beliefs, that they necessarily assume that every legal decision comes down to a judge's political preferences (or, in the legal realists' world, what the judge ate for breakfast). is it simply beyond contemplation that some people (including myself) are geeky enough to actually wish to decide legal issues according to legal principles, and really just don't care about politics when interpreting a statute or constitution? if i were a judge, i would be scared to show my face in public if i decided a case according to politics-- it's the will of the legislature/framers, not mine, that i'd seek to enforce.
Posted by: andy | Sep 26, 2006 7:03:10 PM
Is influence qua influence something to be celebrated? What substantive commitments of Scalia is this encomium praising?
Posted by: GBQ | Sep 26, 2006 6:57:27 PM
This assumes, of course, that Scalia trailblazing what Brian Leiter calls the pathology of originalism is a good thing, does it not? That even if Justice Scalia *honestly* applied his own principles, instead of practicing *bad* originalism, i.e. sloganeering rather than serious historical analysis, used for purely political purposes.
Posted by: anon law student | Sep 26, 2006 6:34:46 PM
i wonder if he wouldn't have been more successful at "counting to five" if he wasn't such a jerk to his colleagues. i've come to believe his opinions (particularly the dissents) are more politically motivated than anything else - i.e. the intent is political activism/pressure, not intellectual persuasion. the schoolyard bully thing seems to undermine the authority of the court -- i.e. the kinds institutions he demands be respected.
Posted by: a-train | Sep 26, 2006 4:14:30 PM
"All while not bothering to be consistent or sticking to principles himself."
I don't know that he's ever treated legislative history as an authoritative expression of Congressional intent. He has adhered pretty damn strongly to his textualist positions. It's refreshing to see a justice consistently use an approach in a field subject to so much manipulation.
Posted by: andy | Sep 26, 2006 4:08:55 PM
I tell my friends that Scalia's swearing-in is the most important thing that's ever happened on my birthday... makes September 26 easier to remember. (Nolan Ryan's 3rd no-hitter is a close second, though).
Posted by: Steve Vladeck | Sep 26, 2006 1:54:00 PM
"Justice Scalia has been controversial because he has challenged us to be consistent in our application of legal theory and to think about the law from a top-down, principles-first perspective"
All while not bothering to be consistent or sticking to principles himself. I suppose this is one reason why he's been controversial but surely it's also because of the controversial nature of his views and the fact that he regularly treats his colleagues as if they were fools while only he knows what's right and has principles.
Posted by: Matt | Sep 26, 2006 1:07:06 PM
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