“Every virtue is included in the idea of justice, and every just man is good.”
—Theognis
John Paul Stevens is the only U.S. Supreme Court justice to have graduated from the law school where I teach; Steven Breyer was one of my law-school teachers; David Souter may be the most adept at arcane constitutional-law doctrine; Ruth Bader Ginsburg is an astute feminist 14th-Amendment theorist; Anthony Kennedy appears to know the most about what is going on in Western European courts and looks as if he belongs in the House of Lords; Sandra Day O’Connor is the most mercurial and relishes her role as swing justice (even if she still behaves as if she were a state legislator); Chief Justice William Rehnquist is a fine administrator and has written several books about the Court that, for sheer readability and insight, put the paltry products of academic historians to shame; and Clarence Thomas (who came from the humblest beginnings) is the one most faithful to the inspired conceptions of the Constitution’s Framers. For sheer smarts, for the subtle dig, and for the most fun, however, nobody comes close to Associate Justice Antonin Scalia.
Most Americans probably know Scalia as the justice liberals and their media acolytes recently disparaged for going duck hunting with his pal Dick Cheney while a case involving the Vice President was pending before his Court. There was not much media notice of it, of course, but Scalia wrote an inspired defense of his position, elegantly explaining that a profound difference exists between his personal friendship with the Vice President and the legal case involving the official prerogatives of the office, none of which redounded to the benefit of Cheney personally. Scalia also pointed out—correctly—that, if everyone in Washington were to step aside whenever official matters involved his friends, not much official business would get conducted in the nation’s capital. Those lucky enough to be, like Cheney, friends of “Nino” Scalia cherish his acquaintance and revel in his boisterous bonhomie. (I myself once sat next to him at a dinner in London—where one is still permitted to smoke after a meal—and bummed a cigarette from the justice.)
Now, for the first time, we have a collection of Scalia’s juiciest opinions, shorn of cumbersome legal citations and other incomprehensible paraphernalia. The editor of this volume, Kevin A. Ring, a former counsel to the U.S. Senate’s Judiciary Subcommittee on the Constitution, Federalism, and Property Rights and a serious constitutional scholar in his own right, has summarized Scalia’s judicial philosophy and provided introductions to each of the opinions.
Scalia was prophetic in his now-famous dissent from the 8-1 decision in Morrison v. Olsen (1988) that Congress did not surpass constitutional bounds when it created the office of “independent counsel” to investigate executive abuses. In Article II, the Constitution clearly provides that “[t]he executive Power shall be vested in a President of the United States”—a statement that had been construed for two centuries to mean that all federal prosecutors, as employees of the executive branch, are under the control of the President. The independent counsel, however, was to be appointed by judges; also, the President could not remove him at his own discretion, as he could all other executive-branch officials. Since the President was still permitted to remove an independent counsel for “good cause,” however, the majority of the Court found Congress’s action not to be a significant restriction of the President’s constitutional power. Wrote Scalia, acerbically noting that his fellows were ignoring plain constitutional text:
Evidently, the governing standard is to be . . . the unfettered wisdom of a majority of this Court, revealed to an obedient people on a case-by-case basis. This is not only not the government of laws that the Constitution established; it is not a government of laws at all.
No one agreed with Scalia in 1988. Now, in the wake of the almost interminable investigations of the first Bush and Clinton administrations by independent counsels, everyone does; and so independent counsels are no more. Morrison v. Olson is the shining example of vindication of Scalia, and many of his other dissents may yet become law.
Believing in a “color-blind” Constitution, Scalia has argued that any governmental distinctions on the basis of race should not be permitted except where such distinctions cannot be avoided: for instance, to stop a “race-riot” at a prison. He has no tolerance for the notion that racial discrimination should be employed to compensate for prejudice. “[U]nder our Constitution,” he says,
there can be no such thing as either a creditor or a debtor race. . . . To pursue the concept of racial entitlement—even for the most admirable and benign of purposes—is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.
Scalia’s greatest scorn is reserved for the Court’s embarrassingly unprincipled decision in 2003 that the University of Michigan law school could discriminate on the basis of race to achieve “diversity” in its classrooms.
The “educational benefit” that the University of Michigan seeks to achieve by racial discrimination consists, according to the Court, of cross-racial understanding . . . and better prepar[ation of] students for an increasingly diverse workforce and society . . . This is not, of course, an educational benefit on which students will be graded on their Law School transcript (Works and Plays Well with Others: B+) or tested by the bar examiners (Q: Describe in 500 words or less your cross-racial understanding). For it is a lesson of life rather than law—essentially the same lesson taught to (or rather learned by, for it cannot be taught in the usual sense)—people 3 feet shorter and 20 years younger than the full-grown adults at the University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school kindergartens.
While a majority of the Supreme Court has insisted on protecting abortion as a part of the “liberty” guaranteed by the 14th Amendment, Scalia has disagreed “because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the long-standing traditions of American society have permitted it to be legally proscribed.” “The best the Court can do,” Scalia has lamented,
With regard to religion, which a majority of the Court seems hell-bent on removing from the public square, Scalia writes, dissenting from the Court’s decision barring nonsectarian prayer at public-school graduation ceremonies, that
[T]he Founders of our Republic knew the fearsome potential of sectarian religious belief to generate civil dissension and civil strife. And they also knew that nothing . . . is so inclined to foster among religious believers of various faith a toleration—no, an affection—for one another than voluntarily joining in prayer together, to the God whom they all worship and seek. . . . To deprive our society of that important unifying mechanism in order to spare the nonbeliever what seems to me the minimal inconvenience of standing, or even sitting in respectful nonparticipation, is as senseless in policy as it is unsupported in law.
When the Court, in U.S. v. Virginia (1996), ruled that no state could operate a single-sex military academy, Scalia, in dissent, proved a valiant defender of the values of the Virginia Military Institute.
The tradition of having government-funded military schools for men is as well rooted in the traditions of this country as the tradition of sending only men into military combat. The people may decide to change one tradition, like the other, though democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics-smuggled-into law.
Concurring with the Court’s decision in Barnes v. Glen Theater, Inc (1991), in which the Court decided that Indiana could prohibit nude dancing in bars, Scalia noted that
Indiana’s statute is in the line of a long tradition of laws against public nudity, which have never been thought to run afoul of [the] traditional understanding of “the [First Amendment’s] freedom of speech.”
Responding to the suggestion by the advocates of public nudity that no one was compelled to visit strip bars, Scalia wrote the memorable lines:
The purpose of Indiana’s nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosierdome to display their genitals to one another, even if there were not an offended innocent in the crowd. Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, “contra bonos mores,” i.e. immoral.
I derive enormous pleasure from Scalia’s prose alone, appreciating my encounter with a master of the language of Shakespeare, Milton, and Churchill, a justice whose opinions seem designed to be read to cheering crowds from mountaintops; yet their real importance lies in the judicial philosophy they reveal. This philosophy, often called textualism, holds that, if the text of the Constitution (or a statute) is “plain” or clear, any court interpreting that constitutional provision or law must follow that plain meaning. Unfortunately, words are elusive, and finding “plain meaning” is often impossible. In such an event, Scalia turns to history and tradition, and—in particular—the meaning that would have been perceived by a contemporary of the Constitution. Thus, Scalia has employed Samuel Johnson’s famous Dictionary (Sixth ed., 1785) to determine what the Framers must have meant and to rely on consistent interpretations over many years of American judicial history. Scalia, then, is an “originalist”: a jurist concerned with what the Constitution meant to the Framers and not one who believes, like most of the current Court, that the job of the Supreme Court is to read new meaning into the constitutional phrases to keep the document in tune with the times, to make it a “living Constitution.” As Ring nicely puts it, “In politically incorrect splendor, Scalia says he likes his Constitution ‘dead.’”
Scalia’s conviction is that remaking law is a task for legislators or the people through the amendment process and that judges have no business doing the people’s or the legislators’ jobs. One might quibble with some of Ring’s and Scalia’s points. For example, Ring praises Scalia for his unwillingness to join the dissenters in Texas v. Johnson (1989), in which the Court decided that flag desecration amounts to “speech” and is thus protected by the First Amendment. I think, however, that Scalia’s philosophy of textual interpretation according to tradition should have led him to conclude that flag desecration is harmful and immoral action, much in the manner Scalia found nude dancing to be. This is no more than to say that Scalia (and Ring), being human, are fallible. Scalia, in his opinions, and Ring, in this book, have done more than well enough. Anyway, it is reported that Scalia’s wife, who differed from him in the flag case, happily tortured him afterward by repeatedly whistling “It’s a Grand Old Flag” around the house.
President Bush has made it plain that the two justices he most admires are Scalia and Thomas (whose philosophy is very close to that of Scalia), and so it is likely that one or the other of them will be nominated to replace Rehnquist, should he tender his expected resignation. An interesting shot across the President’s bow was launched by the new Senate Minority Leader Harry Reid, appearing on Meet the Press in early December, when he remarked that Scalia has ethical problems (presumably a reference to the duck-hunting imbroglio). Reid stated that he would still vote to confirm Scalia as Chief Justice (“this is one smart guy,” he admitted), adding that he could not support Thomas, whom he described as an “embarrassment” to the Court on account of his “poorly written” opinions, for the job. (As Thomas’s decisions, like Scalia’s, are generally models of lucidity, sound law, and common sense, this seems an inadvertent admission that Reid has never read a one of them. The real reason for his refusal to cast a vote for Thomas seems, indeed, to be that the appointment by a Republican administration of the first African-American jurist to that high post would severely discomfit the Democrats.) I hope that the President will not shy away from the inevitable fight in the Senate by naming Thomas or Scalia Chief Justice, should Rehnquist resign. Anyone seeking to understand why either man would be a splendid appointment, or why judges in their mold should repopulate the Supreme Court, need only turn to this volume.
[Scalia Dissents: Writings of the Supreme Court’s Wittiest, Most Outspoken Justice, Edited and with commentary by Kevin A. Ring (Washington, D.C.: Regnery Publishing, Inc.) 332 pp., $27.95]
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