Here is a great article on Supreme Court Justice Antonin Scalia. It is by Terry Eastland, publisher of the "Weekly Standard". It is quite lengthy, but worth the time. If you want to get a great primer on American constitutional law, the history of the Supreme Court, the impact of Scalia on the Court and American legal thought, and the past and future of constitutional interpretation, you need to read the entire piece. This will be particularly useful for non-lawyers who might be confused or intimidated by typical discussions on the Supreme Court and its decisions--which affect all Americans.
But, if you don't have enough time, here's some of my favorite excerpts:
On Scalia's place in American jurisprudence:
Scalia is deservedly held in high regard for his intellect and wit and writing ability. He compares favorably with two of the Court's greatest stylists, Oliver Wendell Holmes and Robert Jackson. Of his 635 opinions so far, a large number--beginning with his solitary dissent in the 1988 case sustaining the independent counsel statute, Morrison v. Olson, a dissent already vindicated by the passage of time--will be taught in law schools many decades hence. Scalia's opinions are essential in evaluating his work, to be sure, but to see his unique contribution as a justice, it is necessary to place his arrival at the Court in historical context. Someday it may be said of Scalia that he was the justice who pioneered the effort to put the text back into statutory law, and the Constitution back into constitutional law.
On America's system of government:
Judges make their appearance in Article III of the Constitution, which vests "the judicial power" in "one Supreme Court" (and in such inferior courts as Congress may ordain and establish). This power extends to "all cases, in law and equity, arising under" the Constitution, federal statutes, and treaties. It is a power that entails interpretation and application of those laws. And it is a power that the Framers understood as limited. Judges, they believed, shouldn't make law, since that authority belongs to the people and is to be exercised through their elected representatives...
Scalia's view of what a good judge is starts with the fact that ours is a constitutional democracy. We are a people (Scalia would say) who have chosen to govern ourselves through a written Constitution to which we have not assigned every authority, as we have left some to the states. (Federalism is what we call this dual sovereignty.) We have taken the legislative, executive, and judicial powers, and vested them in, respectively, Congress, the president, and the judiciary. And while Congress and the president share in the exercise of some powers--for example, the president and the Senate share the power to appoint (but not to nominate) judges--the judiciary does not. It exercises only the judicial power. And, in cases of law, for Scalia as for the Framers, the judicial power is the power to interpret the law, not to make it. It is telling that the title Scalia chose for the 1997 book collecting the Tanner Lectures he gave at Princeton in 1995, in which he set forth his view of judging, is A Matter of Interpretation.
On the change to our system:
More than a century ago, in the hands of the Supreme Court, the judicial power began to undergo a transformation that was well advanced by the time Scalia was in elementary school. In the 1986 book tracing the evolution of the judicial power, published just as Scalia joined the Supreme Court, political scientist Christopher Wolfe described the emergence of "judge-made law," which, against the hopes of the Framers, had become "another variant of legislative power."
The growth of judicial power is in an important sense a story of liberties taken with texts--specifically of the refusal by justices to follow the text of laws as understood at the time of their enactment and of the willingness by courts to "interpret" the law in light of various extratextual considerations. The kind of text in a given case--statutory or constitutional--did not matter. The result was the same: The people's text, whether made by majorities or, in the case of the Constitution, supermajorities, would be displaced by the judges' text. The justices became lawmakers.
On interpreting the Constitution and "legislative intent":
And why not repair to "intent" in determining the meaning of a statute? Legislators, says Scalia, have many different reasons (or none at all) for voting for a bill, defeating the possibility of any singular or collective intent. And the sources judges typically turn to in search of legislative intent--in the legislative history--can't be taken at face value, given that such history has been known to be manufactured to serve strategic purposes, including that of trying to persuade a judge open to it. But even assuming that legislative intent can be found, Scalia objects to it for a fundamental reason: It's not been passed by both houses and presented to the president for his signature, as Article I of the Constitution requires a law to be. In short, it is not a law--a point humorously made in a concurring opinion by Scalia: "We are a Government of laws, not of committee reports."
For Scalia, the starting point for constitutional interpretation is recognition that the Constitution, as he put it in the Tanner Lectures, is "an unusual text." It is the supreme law through which we govern ourselves and thus does not contain "nit-picking detail" (which detail is found in the mind-numbing U.S. Code). Its words and phrases should be given, says Scalia, "an expansive rather than narrow interpretation--though not an interpretation the text will not bear." Not "strict construction" but "reasonable construction" is the goal.
On Scalia's jurisprudence, in a nutshell:
For obvious reasons, Scalia's constitutional jurisprudence is often described as one of "text and tradition." Indeed, he has often put it that way himself. But it bears emphasis that, for Scalia, nothing other than text and tradition is relevant to the task of interpreting the Constitution. Scalia explicitly rejects resort to natural law, however defined, and international law. The Court's citation of foreign law in a 2002 case drew a witty response from Scalia. Having in mind Chief Justice John Marshall's famous statement "We must never forget that it is a constitution we are expounding" (McCulloch v. Maryland, 1819), Scalia wrote: "We must never forget that it is a Constitution for the United States of America that we are expounding."
On the "Living" versus the "Dead" Constitution:
Scalia has a simple way of capturing what happened to constitutional interpretation. It came to serve the "Living Constitution," which Scalia defines as "a body of law that (unlike normal statutes) grows and changes from age to age, in order to meet the needs of a changing society." Justices who embraced the Living Constitution were often candid about its evolution and their role in bringing it about. In Trop v. Dulles (1958), the Court said that "the words of the [Eighth] Amendment are not precise . . . their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Eight years later in Harper v. Virginia Board of Elections, the Court observed that "we have never been confined to historic notions of equality" and that "notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change." In opposition to the Living Constitution, Scalia once declared: "I defend a dead Constitution." Scalia is quick to point out that the "dead Constitution" contains an amendment process by which Americans, and not judges, can alter the Constitution in order to meet "the needs of a changing society."
And on the "Scalia Effect" and the future of American jurisprudence:
But Scalia isn't thinking only about the next decade or so. By his own admission he also writes for the long term, hoping to influence the next generation of lawyers. And certainly he has achieved that aim: Far more law review articles have been written about Scalia and his decisions than about any of his colleagues. The Scalia effect, if it finally takes hold, will be seen in a Court that understands what Scalia himself observed soon after he joined the Court--that "the main danger in judicial interpretation of the Constitution--or, for that matter, in judicial interpretation of any law--is that judges will mistake their own predilections for the law."
And for bonus points, a gold star to any commenter that can link this post to Scalia's views described here (focus on the emergence of substantive due process versus the actual, historical, and constitutional alternative):
But in the early 20th century, the Court read the clause to impose not merely procedural but also substantive limitations on government power. In a 1905 case, Lochner v. New York, for instance, the Court, citing the "liberty of contract," struck down a New York state law limiting the hours that bakery employees could work. The Court eventually abandoned "economic substantive due process." But it didn't give up the idea that "substance" of some kind--not found in the text or history of the Constitution--may be poured into the due process clause. And in the 1960s and early 1970s, personal choice and privacy became the new substance so protected. Indeed, Justice Harry Blackmun's opinion for the Court in Roe v. Wade located the abortion right in the due process clause of the Fourteenth Amendment. As one might expect, Scalia has issued a comprehensive indictment of the doctrine: "The entire practice of using the Due Process Clause to add judicially favored rights to the limitations upon democracy set forth in the Bill of Rights (usually under the rubric of so-called 'substantive due process')," he wrote in a 1999 case, "is in my view judicial usurpation."
Long, but worth the effort. Other than Ronald Reagan, Scalia will likely be the most important figure in federal government during most of our lifetimes. He is worth getting to know.
Sic semper tyrannis,
Thomas More
[email protected]
Recent Comments