Giving the Devil His Due

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Heroes / The Sjupremes

I find myself putting more faith these days in the old saying “Don’t believe everything you read in the newspapers,” especially right after the death of one of the rich and/or famous. In an attempt not to speak ill of the dead, the media rushes in to over-inflate the deceased’s accomplishments. The recent passing of Supreme Court Justice Antonin Scalia is a good example. Here is an article in which The Atlantic is lavish in its praise for Scalia the constitutional philosopher.

Scalia’s constitutional theories do not live up to the hype. His preferred constitutional philosophy was “originalism,” or as he chose to call it, “textualism.” But Scalia’s “originalism” was more a slogan than a workable judicial methodology. Originalism demands in interpreting the constitution that judges limit themselves to the dictionary meaning of the terms in the text when it was adopted.

There would be nothing wrong with this approach to judging if we wrote a new constitution every generation or had included in the original text a workable procedure for amending it. But the authors of our constitution chose to write a constitution for the ages and also made the document next to impossible to amend. The last major amendment–the 19th giving women the vote– was almost a hundred years ago.

Consider the problem of applying the 18th Century dictionary meaning of the First Amendment to contemporary free speech problems. Does the quaint term “abridging the freedom of speech” give us any answers for solving problems involving an internet its authors never imagined? The same is true for the phrase “equal protection of the laws” in deciding contemporary issues like same sex marriage. That’s why American constitutional history has not been one of fidelity to original intent, but of creative judicial glosses on the text to permit it to meet new problems.

I once heard an “originalist” constitutional law professor say that only about 5 to 10 percent of present Supreme Court doctrine is faithful to the document’s original intent. Originalism is mostly reserved for rhetorical flashes while the real work of judging on the Supreme Court is accomplished by the manipulation of precedents to support the justices’ contemporary political ideologies. Originalism is much discussed, but little practiced.

But I come to praise Scalia, not to bury him. I think we should give him his due. Puffing Scalia as a great thinker only distracts attention from the true fact that he was a very gifted lawyer. He displayed many talents that any lawyer of any political persuasion can admire.

Scalia’s incisive analytical mind is a good example It is easy enough to win a case if the law is on your side; the real challenge presents itself when the case law is against you. That’s when an advocate must make old cases speak new messages. I wanted to illustrate this point in my book Guile is Good. To my surprise the example that best suited my purposes was Justice Scalia’s majority opinion in Employment Division v.Smith.

The case involved Native American employees of a drug rehabilitation program who were fired for ingesting peyote during a service of the Native American Church and then refused unemployment benefits by the State of Oregon. They claimed that the refusal violated their rights under the Free Exercise Clause. The relevant case law appeared to be on their side, especially the Warren Court landmark decision of Sherbert v.Verner.

But the Rehnquist Court’s conservative majority voted to rule against them and Scalia was assigned to write the opinion. He decided to overrule Sherbert and establish a new constitutional rule less favorable to free exercise rights. But to do that he had to distinguish the long line of Supreme Court cases that supported the Sherbert rule.

It was a Herculean task, but as I detail in the book (pp. 53-65), Scalia pulled it off. Case after case that had been seen as supporting the Sherbert rule was now interpreted to undermine it. As I analyzed Scalia’s opinion, my reactions oscillated between horror and delight-—horror at the result which I thought grossly under-weighted free exercise values and delight at sight of such a nimble legal mind at work.

Scalia was also a brilliant tactician. I once attended a lecture he gave at which a student asked him why he wrote such “extreme” dissents. Would it not be wiser to take more middle of the road positions in order to form a “centrist” majority? Scalia complimented the student on the acuity of the question before replying that it was his belief that the center tended to be about half way between the two extremes and by expanding the field of contention he was affecting the final compromise. And I think history has proved him right; his dissents stirred up passions in the public sphere that eventually tilted the Court further to the right.

And let’s not forget that Scalia was a gifted polemicist, wielding a wickedly effective pen. I smile when I think of his description of the Warren Court court as a “junior varsity legislature.” That’s a great metaphor, implying both illegitimacy and incompetence in a single image.

And I think there is one more trait we can admire in Scalia the lawyer—-authenticity. I think that Scalia was always fighting for what he believed in and thoroughly enjoyed the fight. Too many lawyers cannot say the same of their own work.

When I ask myself whether Scalia was a good justice, I find the question difficult to answer because, as the recent brouhaha over whether the Republican Senate will even give a hearing to Obama’s next Supreme Court nominee clearly shows, evaluating a justice is more a political act than a legal one. Therefore, I will say that Scalia was as good (or bad) a justice as Samuel Alito or Clarence Thomas.

But he was a helluva lawyer, and that’s no small compliment. Adios Nino!

Anyhow that’s how I see it. What do you think?

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  1. Quin Denvir says

    well thought and better written

    On Mon, Mar 7, 2016 at 9:45 PM, Guile is Good! wrote:

    > denvirj posted: ” I find myself putting more faith these days in the old > saying “Don’t believe everything you read in the newspapers,” especially > right after the death of one of the rich and/or famous. In an attempt not > to speak ill of the dead, the media rushes in to ove” >


  2. An overlooked quality characteristic of Justice Scalia was his bullying. The very idea of “originalism” is at its heart a bullying concept. What it is incapable of accomplishing through reasonable persuasion, it achieves by invoking reverence for “the Founding Fathers.” While he may have had a “brilliant mind,” the uses to which such brilliance are put must in the end be the measure of appraisal. Lacing his opinions with clever (or not so clever) put-downs, is how Scalia should be best remembered – the essential trait of a school yard hooligan.


  3. Paul McKaskle says

    I think Scalia’s emphasis on “originalism” or “textualism” (whatever they are) did cause him to write the majority opinion in the case holding unconstitutional a “search” using heat seeking equipment without a search warrant (to detect marijuana growing rooms) as contrary to the plain meaning of the 4th amendment as was his dissent (joined by Brennan and Marshall) to the majority opinion which allowed a child to testify in a way that the accused couldn’t see him on the grounds that this violated the plain language of the constitutional requirement of confrontation. (Sorry, I don’t have the case names at hand).

    While I think his overall output was a mixed bag (though I haven’t read enough of his opinions or dissents to reach an ultimate conclusion) I did have the occasion to cite a law review article by him favorably on “the ability of courts to evaluate multi-factored balancing tests on a principled basis” which I think is a real problem in redistricting litigation.


  4. Ken says

    John: I do not like to publicly dissent but I am perplexed by your praise of Scalia . Having the benefit of Guile Is Good, I am well aware of your recognition and admiration of his erudition and skill , but I recoil at honoring him when his abilities in my view were committed to preserving intolerance, bigotry, and discrimination .I shall probably spend some extra time in purgatory for my ill will and words towards a departed soul and Opus Dei member.

    Sent from my iPad


    • Ken, I am sure many people agree with you. I certainly agree that his votes have had caused a lot of needless suffering. But that’s a political judgement and the sad thing about political judgments is that, although we believe them with all our heart, we often can’t persuade people of intelligence and good will of their truth. We couldn’t persuade Scalia anymore than he could persuade us. That’s why I think we have to create professional space where we can agree on questions like what constitutes excellent lawyering. My post argues that often Scalia showed himself an excellent lawyer, but we could also dwell on his role in Bush v. Gore where he failed on neutral professional standards.


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