The Essential Scalia: On the Constitution, the Courts, and the Rule of Law Edited by Jeffrey S. Sutton and Edward Whelan Reviewed by Dan Lawton ...
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
The Essential Scalia: Dan Lawton is a member of
California Litigation’s editorial
board. He is senior counsel
with Klinedinst PC, where
On the Constitution, the
he practices litigation in the
firm’s appellate and professional
liability groups.
Courts, and the Rule of Law
Edited by Jeffrey S. Sutton and Edward Whelan
Reviewed by Dan Lawton
As a law student, I had amazing luck. constitutional interpretation, statutory inter-
My law school was walking distance from the pretation, and review of agency action. Each
U.S. Supreme Court. During my first year, my section gives a sampling of Scalia’s writings,
classmates and I sometimes sat in the gallery abridged to eliminate citations, inconsequen-
and tried to soak it all in. There we watched tial quotation marks, and other clutter. The
as the same Justices whose opinions we read best of Scalia is here, with his thinking laid bare
in Con Law engaged with the lawyers at the in bite-sized chunks and his writing chops on
lectern. During one hearing, my friend Julie vivid display. Scalia’s trademark flashes of wit,
Grohovsky leaned over and offered an obser- irony, and occasional sarcasm enliven the rigor,
vation about Sandra Day O’Connor. “She is so honesty, and thoughtfulness permeating his
into federalism,” Julie whispered. jurisprudence.
So was the late Antonin Scalia. Scalia-lovers will find a lot to love here.
Scalia-haters, if they be honest, will find some-
In “The Essential Scalia: On the Constitu- thing to love too, if they will only dare to admit
tion, the Courts, and the Rule of Law” (Penguin it.
Random House 2020), editors Jeffrey S. Sutton
and Edward Whelan offer a carefully-curated Scalia’s views on judging will come as no
selection of speeches, essays, testimony, and surprise to any informed citizen. He didn’t
opinions penned by the late Antonin Scalia, think judges ought to arrogate to themselves
hero of the conservative movement and favor- decisions which are left to the people and their
ite punching bag of the left wing. To appreciate elected representatives, however meanly and
“The Essential Scalia,” you need not identify stupidly the people and their representatives
with one group or the other. You need only be make those decisions. He insisted that judges
honestly curious about American law, judging, not act like superlegislators. He despised think-
and the federal system created by the Framers ing about judging as “playing common-law
of the U.S. Constitution. judge, which in turn consists of playing king
-- devising, out of the brilliance of one’s own
Sutton and Whelan have divided their mind, those laws that ought to govern man-
work into four sections, each devoted to a sin- kind.” He thought the job of judging requires
gle theme: general principles of interpretation,
The Journal of the Litigation Section of the California Lawyers Association // California Litigation Vol. 34 • No. 1 • 2021 // 49judges to discern the meaning of statutes from bench, start collecting their guaranteed pay
their text and not from the supposed intentions and benefits, and become surrounded by their
of those who enacted them. security details, law clerks, secretaries, and oth-
er servants. (Don’t you know a few of those?)
In 2015, the court decided Obergefell v. “We federal judges live in a world apart from
Hodges. In it, Anthony Kennedy, writing for the vast majority of Americans,” he wrote in
a one-Justice majority, wrote that the Four- Glossip v. Gross in 2015. “After work, we retire
teenth Amendment demanded the nationwide to homes in placid suburbia or to high-rise
abolition of state laws prohibiting same-sex coops with guards at the door. We are not con-
marriage. In dissent, Scalia pointed not to hu- fronted with the threat of violence that is ever
man rights, or the moral and social dimensions present in many Americans’ everyday lives.”
of marriage. He pointed instead to the federal Was it possible, he wondered, that such judges
system set up by the Constitution. It, he wrote, found themselves oblivious to the effects their
had allowed eleven states to decide to expand decisions made on the lives of ordinary people?
the traditional definition of marriage. It had
also allowed many more states not to. It had al- I wonder if judges would enjoy a higher
lowed advocates for both sides to keep pressing reputation if they asked this question every
their cases in legislatures and on ballots, secure once in a while.
in the knowledge that they could negate a loss
today with a win tomorrow. “That is exactly The term most closely associated with
how our system of government is supposed to Scalia, of course, is originalism, the idea that
work,” Scalia wrote. “It is not of special impor- the federal Constitution has a fixed meaning
tance to me what the law says about marriage. which changes only by amendment and means
It is of overwhelming importance however, who today what it meant when it was adopted. The
it is that rules me. Today’s decree says that my Constitution doesn’t change, any more than a
Ruler, and the Ruler of 320 million Americans contract does once the parties have signed it.
coast-to-coast, is a majority of nine lawyers on The very act which it once permitted, it doesn’t
the Supreme Court.” now forbid (the death penalty, for example).
Scalia conceded inquiry into original meaning
And those nine, Scalia wrote humbly, could be difficult. He admitted originalist
hardly represented a proper Ruler of us all. methodology doesn’t always yield a clear and
Eight of the nine were graduates of the Har- easy answer. But, to him, that was no reason to
vard Law School; the ninth, of Yale. None were reject it as an honest means of interpretation.
from the South or West (California, Scalia wry-
ly observed, “does not count”). Not one was a “The question before the house is not
Protestant. Four were New York City natives. whether originalism is perfect,” he wrote. “I will
In short, the nine represented a “strikingly stipulate that it is not. The question is whether
unrepresentative” body. it is better than anything else. My burden is
not to show that originalism is perfect, but
Like his eight colleagues, Scalia occupied merely to show that it beats the other available
the highest station in American public life alternatives. And that is not difficult.
and had life tenure. Yet he did not adopt the
pomposity and self-importance displayed by “Is the death penalty prohibited? Are laws
so many judges whose humility and modesty against abortion, homosexual sodomy, and
seem to evaporate after they ascend to the assisted suicide prohibited? . . . It is a piece of
50 // California Litigation Vol. 34 • No. 1 • 2021 // The Journal of the Litigation Section of the California Lawyers Associationcake to determine that no one in the Found- not whether the power of a woman to abort
ing generation thought so. . . . How are the her unborn child is a liberty in the absolute
living constitutionalists going to arrive at their sense. Nor was it whether it is a liberty of great
decisions? To tell the truth, I don’t know – and importance to many woman. Of course, it is
neither do they. . . . If originalism is to be sup- both. The issue, he wrote, is whether it is a lib-
planted, it must be supplanted with something. erty protected by the U.S. Constitution. “I am
If the judge is not to look to the original un- sure it is not,” he wrote. The Constitution says
derstanding of the text, what is he to look to? . nothing about it. And so, to Scalia, the issue of
. . As a practical matter, there is no alternative legal regulation of abortion belonged where it
to originalism but standardless judicial consti- always had before Roe – in the legislature.
tution-making.”
It mattered not what Scalia thought about
And standardless law-making was, to Scal- the morality or wisdom of abortion, gun con-
ia, no better than standardless-anything else. To trol, same-sex marriage, punitive damages, or
illustrate, Scalia imagined how the standardless the procedural rights of detainees held by the
approach would play at oral argument in a case Pentagon at Guantanamo Bay. Those questions
about whether there is a constitutional right to were correctly left to the branches of govern-
assisted suicide: “The question is not whether ment charged with deciding them and most
the Constitution originally established a right closely accountable to the voters, most often
to die but whether there is a right to die today. the legislature.
Do you think there is a right to die, Justice X?
I don’t. What about you, Justice Y? Let’s have To Scalia, the easy questions were less
a show of hands. Well, that’s five in favor of a interesting than the hard ones. One of them
right to die. Now on to the next case.” arises daily in the life of every lawyer and judge.
It is: how do we properly construe a statute?
The reality, Scalia wrote, is that originalism A few basic rules supplied the answer, Scalia
is “the only game in town – the only real, ver- thought. One of them is that, when the text of
ifiable criterion that can prevent judges from the statute is clear, that is the end of the matter.
making the Constitution say whatever they
think it should say.” Scalia hated the “discouraging truth” that
the court “favors some laws over others, and is
The standardless approach, unfortunately, prepared to do whatever it takes to uphold and
has prevailed various times in the court’s juris- assist its favorites,” even if that meant ignoring
prudence. In Con Law I, we all knew Roe v. the text of the law enacted by those charged
Wade, as a work of legal reasoning and consti- with doing so. “That may be a good idea,” Sca-
tutional law, was a piece of garbage. Of course, lia wrote of changing a statute which regulated
you couldn’t say that out loud at my law school rates for long distance telephone service, in
without being ostracized. Nor can you say it MCI v. AT&T. “But it was not the idea that
in polite company today without having the Congress enacted into law in 1934.”
words chauvinist or knuckle-dragger or religious
fanatic tattooed on your forehead. Most lawyers and judges I know live in
southern California. They fancy themselves
Of Roe and its progeny, Scalia described highly enlightened and politically correct.
the constitutional issue precisely, in a dissent Many don’t mind proclaiming their supposed-
in Planned Parenthood v. Casey in 1992. It was ly-superior value systems to others. They do it
The Journal of the Litigation Section of the California Lawyers Association // California Litigation Vol. 34 • No. 1 • 2021 // 51on their law firm websites. They do it in their Juxtaposed with her image of the book-
pious and carefully-phrased holiday greeting ish, indomitable hero to women everywhere,
cards (really just crass advertisements for their the scowling, beetle-browed Scalia enjoys no
law practices). They do it at meetings of their similar status, except in the Federalist Society.
Inns of Court chapters and at parties where It isn’t fashionable to invoke his name at most
lawyers and judges mingle. In the straitened gatherings. To be for federalism and against
and insular class inhabited by many of us, it a “living Constitution” is to induce a yawn,
almost seems a competition to see who can a searching glance over your shoulder for the
signal their virtue the loudest on Juneteenth, place where the more interesting people at the
at the news of the passing of Justice Ginsburg, party might be, a polite nod accompanied by
and in response to the latest police shooting of the slightly disapproving look that says, Nean-
an African-American citizen. By comparison, derthal.
it’s distinctly un-glamorous to champion the
hard and tedious work of studying the Consti- It is too bad. Scalia’s contributions to law
tution and laws and applying them as they were and to the hard work of judging were every bit
written. But tedious attention to un-glamorous as monumental as Ruth Bader Ginsburg’s. No
detail is where the best and most valuable work billboards or neon signs advertising a docu-
is done, whether it be in practicing law, sailing mentary film about his life will ever grace the
a boat, repairing an automobile, cooking a Sunset Strip or Times Square.
good meal, or flying an airplane. Scalia cared As a lucky man, I had a great law school
about doing that work, not about whether he experience. My professors were mostly wonder-
was in vogue among the loudest of the chatter- ful. They took my mush-filled head and trained
ing classes. me to think like a lawyer, as John Houseman’s
In recent years, Justice Ruth Bader Gins- Kingsfield warned his timorous charges he
burg achieved an ennobled status in American would in “The Paper Chase.” But like every
culture. In some quarters, this phenomenon re- other law student I had a peeve or two. One
sembles a kind of adoring cult. Rightly revered was the opacity, verbosity, circumlocution, and
for her integrity, intellect, and triumph over academic double-talk permeating the judicial
the obstacles which littered the path of women opinions in our casebooks. The sentences were
attorneys during the 1960s and 1970s, she too long. There was too much passive voice and
became the subject of an award-winning film, Latin, not enough plain English. There was lots
several books, and treatment from journalists of plain bad writing presented as holy scripture
and pundits that bordered on deification. because it had issued from the pens of jurists
Mention RBG’s name at a cocktail party or on the Supreme Court or the Second Circuit
backyard barbecue populated by those who and found its way into a casebook composed
consider themselves progressives, feminists by a legal scholar who had probably never
(be they male or female), the “woke,” and practiced law in his life. To one weary of trying
right-thinking Americans, and you instantly to decipher such prose, Scalia’s opinions came
brand yourself as One of Us, Mr. O.K.-All Rite. as a breath of fresh air. He wrote plainly, in
Among such people, it’s cool to let slip your language anybody could understand, whether
ardor for equality and against discrimination. they’d attended law school or not.
Here is an example, from a dissent in a
case in which Scalia’s colleagues approved the
52 // California Litigation Vol. 34 • No. 1 • 2021 // The Journal of the Litigation Section of the California Lawyers Associationpractice of taking DNA swabs from suspects in olation of the separation of powers, one which
custody without a warrant. “Make no mistake invited abuse of power by special prosecutors
about it: As an entirely predictable consequence gone rogue. Scalia foresaw the rise of special
of today’s decision, your DNA can be taken counsels like Kenneth Starr, who infamously
and entered into a national DNA database if pursued the Whitewater, Travelgate, and Lew-
you are ever arrested, rightly or wrongly, and insky investigations at expense to the taxpayers
for whatever reason.” of $60 million and no result, like a modern-day
Javert gone mad. In 1999, the law expired after
If every case excerpted in every casebook Congress decided not to renew it. Scalia wrote
in every American law school were written in other dissents which became majority positions
that style, the lives of thousands of law students in later decisions. They are testament to the
would improve by leaps and bounds. long-lasting effect he had on his colleagues.
Forget about politics for a moment. No “The Essential Scalia” opens with a touch-
lover of good prose, no matter how besotted ing foreword authored by Justice Elena Kagan,
with the socialist orthodoxy of Bernie Sanders who both argued before Scalia as solicitor gen-
and The Squad, can fail to love this: “Like some eral and served as his colleague after ascending
ghoul in a late-night horror movie that repeat- to the Supreme Court. In it, she writes of an
edly sits up in its grave and shuffles abroad unwavering rule she observed during the six
after being repeatedly killed and buried, Lemon years she and Scalia served together. “When
stalks our Establishment Clause jurisprudence Nino circulated a new opinion, I would put
once again, frightening the little children and aside whatever else I was doing to read it,”
school attorneys of the Center Moriches Union writes Justice Kagan. “I wanted to dive into his
Free School District.” inimitable writing style. To marvel at the power
“The Essential Scalia” examines the urban of his mind. And most important, to take the
myth that Scalia was mostly a dissenter, a mem- measure of his ideas.”
ber of a minority inhabited usually by himself Whether you love Scalia or harbor some
and Clarence Thomas (sometimes joined by other emotion, once you finish “The Essential
one or two others), fulminating at the excesses Scalia,” you will feel the same way.
of the majority but, in the end, a lone voice
crying in the wilderness, irrelevant and unin- “We are all textualists now,” said Justice
teresting except as a conservative crank with a Kagan in 2015 at the inaugural Scalia Lecture
big personality. Like other myths, it is far from at Harvard Law School. If you wanted to sum
the truth. Scalia’s dissents re-emerged as major- up Scalia’s contribution to American law in
ity views as time passed and his colleagues or five words, it would be hard to find five better
Congress came to embrace their soundness and ones. In their timely and punchy collection of
rigor. Scalia’s writings, Jeffrey Sutton and Ed Whelan
have marvelously illustrated that contribution.
The Ethics in Government Act of 1978 Their book is a must-read for all law students,
offers a case in point. The statute gave inde- lawyers, and judges. Bravo.
pendent counsels appointed by the attorney
general certain powers reviewable by a special
three-judge court. In 1988, Scalia authored a
lone dissent which denounced the law as a vi-
The Journal of the Litigation Section of the California Lawyers Association // California Litigation Vol. 34 • No. 1 • 2021 // 53You can also read
