No Liberal Scalias

With President Obama set to name his first nominee to the Supreme Court Democrats and liberals are debating whether the President should name a “Liberal Scalia?”  On February 3, 2009, Dahlia Lithwick wrote on slate.com, “Indeed, the most consistent aspect of the liberal grousing about the court is that there is no left-wing counterpart for Justice Antonin Scalia.”

But appointing a liberal Scalia would be a mistake of epic proportion.  There is no doubt Justice Scalia is incredibly smart, and a very gifted writer.  In person, he is one of the funniest people I have heard speak.  His intellect and writing skills make his opinions some of the most memorable you will read.  Readability of writing and clarity of legal principles is what many liberals desire.

Yet, you will be hard pressed to name any landmark majority opinions he has written.  In over 22 years (covering well over 1,600 cases), I believe only 3 of his majority opinions are of any lasting significance:  (1) Employment Division v. Smith (holding that the 1st Amendment’s Free Exercise Clause was not applicable to facially neutral laws); Crawford v. Washington (holding that the 6th Amendment’s Confrontation Clause means what it says “the accused shall enjoy the right … to be confronted with the witnesses against him.”); District of Columbia v. Heller (holding that the 2nd Amendment protects and individual right to own a gun).  A search law textbooks or the internet for his most influential or memorable opinions, will reveal that almost all of them are concurrences or dissents.  In fact, his dissents are so famous, there is even a book entitled “Scalia Dissents.”

There is a reason that Justice Scalia finds himself writing memorable dissent or concurrences, rather than majority opinions:  over the 22 years he has been a Justice, he has failed to learn the lesson of his former colleague and nemesis, Justice William Brennan—the only number that counts is 5. Justice Brennan is alleged to have said “With five votes you can do anything.”  He was famous for being able to cobble together 5 votes for a case by making compromises with other Justices.

Is this a jaded, cynical and political view of how the Court functions?  Yes, but as I have said so many times in the past, you must act according to the world you live in, not the one you want.  Justice Scalia famously “never” compromises his textualism and original meaning jurisprudence (He insists that judges’ interpretations are to be “guided by the text and not by intentions or ideals external to it, and by the original meaning of the text, not by its evolving meaning over time.”)  Would it be better if all Judges voted simply based simply on their principles?  Maybe.  For Justice Scalia, the world is black and white, no shades of gray.  The text says what it says and the meaning easily discernable.  But for the rest of us, that world does not exist (What does “due process of law” or liberty or cruel and unusual punishment” really mean?).  Justice Scalia has failed to grasp that the Supreme Court is a political body like the other two branches of the federal government.  More likely, though, he refuses to partake in the horse trading and compromises that Justice Brennan engaged in.  While Justice Brennan will be remembered as the architect of the Warren Court Revolution, Justice Scalia’s vision of the Constitution will go mainly unfilled.

Justice John Paul Stevens has learned the lessons of Justice Brennan and has managed wield an amount of influence fans of Scalia only wish he had.  He has managed to wield this power through strategic compromise and assignment of majority opinions to gain the votes of Justice Anthony Kennedy or former Justice Sandra Day O’Connor.  Justice Scalia has done the opposite; he has alienated his colleagues by publicly ridiculing them.  For example, in his concurrence to Webster v. Reproductive Health Services, he wrote:  “JUSTICE O’CONNOR’s assertion, that a “‘fundamental rule of judicial restraint'” requires us to avoid reconsidering Roe, cannot be taken seriously.”  Was there really any reason for this mocking tone, given that O’Connor had voted the same he had?  In Roper v. Simmons, a case in which the Court reversed an earlier Scalia opinion (which had upheld the death penalty as applied to minors against a challenge under the 8th Amendment), Scalia wrote:  “What a mockery today’s opinion makes of Hamilton’s expectation, announcing the Court’s conclusion that the meaning of our Constitution has changed over the past 15 years–not, mind you, that this Court’s decision 15 years ago was wrong, but that the Constitution has changed.”  I am not saying that Judges should not express anger in decisions they believe are profoundly wrong.  But Scalia lacks the tact that is needed to influence the direction of the law in the way he wants.

This is not to say that Justice Scalia has not had profound influence.  His admirers show the same reverence to him that Republicans show for President Reagan.  There are thousands of lawyers who now believe in textualism and original meaning jurisprudence because of Justice Scalia.  Many of those lawyers now sit on the bench or had occupied positions in the Bush Administration.  For those of you interested in reading some of his memorable dissents, I would point you to his dissent in Morrison v. Olson (dissenting from a decision upholding the independent counsel statute); his dissent in Planned Parenthood v. Casey (upholding the “core” of Roe v. Wade); and Lawrence v. Texas (striking down as unconstitutional Texas’ anti-sodomy law).

Update: The Rule of 5 is now culturally significant as it was discussed on last night’ Colbert Report.

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2 Responses to “No Liberal Scalias”

  1. It’s Like the NYTimes Read My Blog « Political Junkie Goes Hollywood Says:

    […] I said before, the only thing that matters is […]

  2. When Thinking About Obama’s Supreme Court Nominee, Just Remember the Law of 5 « Political Junkie Goes Hollywood Says:

    […] of 5 By mschonholz As I said in post last year when Justice Souter announced his retirement, I warned that putting a liberal Scalia on the bench would be an epic mistake.  In that post, I said the most important rule to remember is the “Law of 5,” […]

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