Sunday, August 16, 2015

How Do You Solve a Problem Like Scalia?

     Chief Justice John G. Roberts Jr. opened the Supreme Court’s October 2011 term by noting that it was the 25th anniversary of Justice Antonin Scalia’s first day on the court. “The place has not been the same since,” Roberts added.
      It was true then and, at the end of a politically contentious term four years later, all the more true today. For his efforts, Scalia has earned admiration from his ideological followers and attention from court watchers and the general public. But he went so far in the final days of the October 2014 term as to prompt debate about how to deal with the spotlight-grabbing behavior that some commentators viewed as tarnishing his legacy and bringing disrespect on the judiciary.
      Scalia has made an important if controversial contribution to the court’s jurisprudence by emphasizing “original meaning” in constitutional interpretation and “plain meaning” in statutory construction. He can also be credited with starting the transition from the lukewarm bench of the Burger Court to the hot bench of the Rehnquist era and the now very hot bench of the Roberts Court.
      Early on in Scalia’s tenure as a junior justice, his senior colleague Lewis F. Powell Jr. turned to another senior colleague Thurgood Marshall to say, “Do you think he knows that the rest of us are here?” (Credit Scalia biographer Joan Biskupic for recalling the story in her 25th anniversary piece.) As the story illustrates, Scalia has delighted from the start in playing the role as the court’s bad boy —  or perhaps the court’s cattivo ragazzo. But never more so than with his snarky dissents from some of the past term’s most important decisions.
      Scalia dismissed Roberts’ opinion for the six-justice majority in the Obamacare case, King v. Burwell, as “quite absurd” and, for good measure, as “pure applesauce.” The next day, Scalia was even more contemptuous of the majority decision in the marriage equality case, Obergefell v. Hodges. He managed simultaneously to insult the author of the decision, Justice Anthony M. Kennedy, and the four liberal justices who joined the opinion. After dismissing Kennedy’s attempted eloquence as “mummeries,” Scalia sneered at the liberals for going along. “I would hide my head in a bag,” he wrote, before joining such an opinion.
      Scalia was not yet through. In the lethal injection case, Glossip v. Gross, Scalia mocked Justice Stephen G. Breyer for arguing in dissent that capital punishment may be unconstitutional because of inevitable delays in carrying out executions and because of declining public support for the death penalty. As for delays, Scalia said that Breyer has been “the Drum Major” for judicial decisions that slow capital cases. And he dismissed Breyer’s count of fewer states that carry out the death penalty as “creative arithmetic.”
      Scalia’s snarky dissents are nothing new. Back in 1989, Scalia vented his anger at Justice Sandra Day O’Connor for not providing a fifth vote to overturn the abortion rights decision Roe v. Wade. O’Connor’s position, he said, was “irrational” and “cannot be taken seriously.” In recalling that anecdote in 2011, the New York Times’ great Supreme Court correspondent Linda Greenhouse said she knew of no instance when Scalia’s barbed comments had helped sway other justices to his position.
      Greenhouse might have to amend her comment today. In June 2011, Scalia argued in dissent for ruling a part of the Armed Career Criminal Act unconstitutional despite successive decisions grappling with how to interpret the provision. The ruling “will sow further confusion,” Scalia wrote. “Four times is enough.” But this term Scalia put together a six-justice majority to rule the provision unconstitutional, just as he had argued twice before.
      Some evidence suggests, however, that Scalia’s colleagues are at best ambivalent about his behavior. I recall a panel discussion from years back in which O’Connor complained about the argumentative style of unnamed ex-professors on the bench. Scalia taught at two law schools before becoming a justice.
      The liberal academic Erwin Chemerinsky, dean of the University of California-Irvine Law School, argued more pointedly in a post-term wrap-up that Scalia’s opinions marked a new low for the court. “The level of personal attack and invective is something that has never been seen in Supreme Court opinions,” Chemerinsky said. A lawyer who put such language in a brief could be sanctioned, he said. “It’s less acceptable from a Supreme Court justice.”
      More charitably, Eric Segall, a law professor at Georgia State University, says Scalia is tarnishing his legacy by “becoming . . . a caricature of the bitter old man despondent of the good old days.” Michael Dorf, a professor at Cornell Law School, sees the increased snarkiness from Scalia and junior justice Elena Kagan as the inevitable product of the Internet culture. But David Kravitz, an ex-O’Connor law clerk now in private practice in New York City, argues with more concern that Scalia’s “zingers” should simply be ignored. Scalia’s “zinger-laden opinions are titillating,” Kravitz writes in The Washington Post, but “over time they coarsen the culture.”
      Alas, Scalia knows how to tease the media into recirculating his quote-bites. The only solution, it would seem, is an intervention by his colleagues. “Just knock it off, Nino,” one imagines the rest of The Nine telling him. But there is little reason to think Scalia would take the advice.
      Schedule note: This column takes a two-week break for the rest of August. If the French can do it, so can we. See you in September.


  1. It is noteworthy that Scalia chose to release his opinion in Johnson v. US (striking down part of the Armed Career Criminal Act by over-turning recent precedent) on the same day as Obergefell...

  2. He has been doing this for a long time, even before there was much of an "Internet Culture."