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Friday, August 31, 2012

Scalia, judicial ideology, and flag burning

Dan flags Richard Posner's negative review of Justice Scalia's new book (with Brian Garner), a review which largely speaks for itself. I wanted to delve into a side issue regarding Justice Scalia's vote in the flag-burning cases and what it says about his judicial philosophy.

As Posner describes it, Scalia tries to mount a preemptive defense to the charge that their interpretive theory of "textual originalism" is not political or inherently conservative by pointing to "liberal" decisions he has joined. His choice--the flag-burning cases of Texas v. Johnson and United States v. Eichman. Indeed, Johnson and Eichman, and Scalia's votes in those cases, have for 20+ years been the go-to exhibit to demonstrate that the justices are not governed by political preferences. Posner argues that this is a "curious" example to use in defense of textual originalism, since the First Amendment doctrine that led (properly) to constitutional protection for flag burning is a modern product, not grounded in the Framers' understanding of the freedom of speech. Posner argues that Scalia and Garner repeatedly praise Blackstone, whose conception of free speech was limited to prohibiting prior restraints but not post-speech punishment.

More fundamentally, using a few free speech cases to demonstrate his ideological neutrality is strange because the First Amendment should be, in theory, deologically neutral. That Scalia does not personally approve of flag burning is beside the point; the goal is that he is committed to a principle of occasionally caustic criticism. Or, if Scalia wants to use his speech-protective votes to show his open-mindedness, why not focus on R.A.V. v. City of St. Paul, where he wrote a broad opinion invalidating an ordinance prohibiting cross burning.

Ironically, there is a different area in which Scalia's votes have been ideologically unexpected while also arguably adhering to some form of originalism--the Confrontation Clause cases of the last decade, beginning with Crawford v. Washington. Writing for the Court and adopting an explicitly historical approach to the Sixth Amendment (with prolonged discussion of Marianist ex parte affidavits and the treason trial of Sir Walter Raleigh), Scalia pushed the Court down an analytical path that had the potential to greatly constrain the ability of government to admit a range of hearsay statements against criminal defendants. And when the Court backed away from some broader applications of Crawford, Scalia remained in outraged dissent. He stuck to his historical guns, even as Justice Sotomayor took a shot at his approach by insisting that the murder investigation at issue in Bryant was "readily distinguishable from the "treasonous conspiracies of unknown scope, aimed at killing or overthrowing the king," post, at 1173, about which Justice SCALIA's dissent is quite concerned." In fact, Scalia closed his Bryant dissent with a downright Brennanesque flourish:

For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.

This is a true example both of originalism yielding liberal results; it would be nice to see Scalia and others focus on this example and not on free speech cases that reflect a very different analysis and a different set of expectations.

Posted by Howard Wasserman on August 31, 2012 at 09:23 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


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Conservatives in recent years repeatedly are free speech advocates since they are the ones with controversial speech and often wishing to attack PC regulations and usually deemed liberal supportive speech codes. RAV v. St. Paul has that sort of character. The confrontation cases also are not really against Scalia's interest -- his personality supports sucking up and facing up to one's opponents, and a tough love approach that makes the rule absolute is believable. I'm with Goodwin Liu in one ACS discussion he took part in -- not really seeing a lot of sacrificing.

Posted by: Joe | Sep 1, 2012 11:25:35 AM

If we're talking about constitutional interpretation, I think it's giving Scalia too much credit to say he "he adopts and advocates for a methodology that will reach the outcomes he wants in the cases he cares about." There is really no general correlation between originalism and the outcomes Scalia wants in major constitutional cases -- particularly once you abandon, as Scalia has done, the principle that judicial restraint requires deferring to the democratically elected branches in doubtful cases.

With respects to statutes, Scalia's methodology is conservative for the reason Posner explains: refusing to apply common sense in statutory interpretation "hobbles legislation," thus helping to turn conservative anti-government rhetoric into a self-fulfilling prophesy.

Posted by: AF | Aug 31, 2012 11:24:12 AM


Fair point and I probably should have put danger quotes around the word "liberal" at the end. I generally try to avoid throwing those labels on judges and judicial decisions because they're too simplistic. But for these purposes, I was taking that liberal/conservative discourse as a given. And within that discourse (which probably does rely on some form of Brennan/Marshall liberalism), pro-defendant is liberal, at least in a case such as Bryant. Of course, on reflection, Crawford has had its most-significant effect in domestic violence cases, a class of cases in which pro-defendant is not liberal.

As for your hypothesis: I have heard similar arguments about the Chief's tour de force in ACA--upholding the law was costless (given how unique it was) but bought him ideological credibility to vote to invalidate affirmative action and the Voting Rights Act next year.

Posted by: Howard Wasserman | Aug 31, 2012 10:35:29 AM


This is very interesting, and I agree with most of it, but I guess I question the first clause of your final sentence -- or at least feel it needs more of an argument. Why would we necessarily categorize the results of Crawford as "liberal," as opposed to "conservative" or orthogonal to the liberal-conservative axis? Is the premise just that any procedural protection that makes the prosecution's burden more difficult is necessarily liberal? That seems to me questionable, for two reasons. First, it is in tension with a separate strand of liberalism that is concerned with promoting effective government -- including effective crime control. Chief Justice Warren in Terry exemplifies this, but so do lots of liberals who aren't nearly as pro-defendants'-rights as he was. Second, even if we limit ourselves to what you might call Brennan/Marshall liberalism, I think the principle that sort of liberalism adopts is narrower than "more procedural hurdles for the prosecution are always good." The vast majority of procedural protections for which Justices Brennan and Marshall argued can be understood as barring government practices that are either particularly harmful to human dignity or contribute to the disadvantage of disempowered (often racially defined) communities. It's not obvious to me that the Crawford right is like that. It's not obvious to me that it isn't, either, but I think it takes an argument to establish the point.

In any event, even if Crawford is a "liberal" case, that would not negate the following hypothesis about Justice Scalia: he wants to reach conservative outcomes in the cases he most cares about, but he also wants to seem objective and nonideological, so he adopts and advocates for a methodology that will reach the outcomes he wants in the cases he cares about, while also reaching "liberal" outcomes in cases that are less important to him. If that hypothesis is right, it would make sense that Justice Scalia writes biting dissents in the cases that decline to follow the "liberal" decisions he reaches. The biting dissent is necessary to sell his lack of ideology. Now, I think things are in fact way more complicated than that. This is just an exercise in hypothesis testing. But I'm not sure how much weight the Crawford example can carry. One might look to a case like Adarand, where Justice Scalia seems to many eyes to disregard his usual originalism in reaching a conservative result on a high-profile issue.

Posted by: Sam Bagenstos | Aug 31, 2012 10:05:33 AM

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