Politico had a disappointingly lazy piece on Tuesday under the slanted headline, “Scholars scoff at Scalia claim.” I suppose the author can be forgiven her editor’s snappy alliteration. After all, “Scholars fail to engage Scalia’s arguments and accuse him of hypocrisy while failing to take into account counterexamples to their own theories” is probably way too long for the print version.
The piece is largely devoted to comments from liberal law professors’ accusing Scalia of not following his own advice and failing to approach cases from a purely legal — as opposed to ideological or policy-based — approach.
The criticism leveled against Scalia falls short of engaging his actual arguments. (If you’re looking for scholarly discussion of what those arguments are, skip the lede and check the final paragraphs of the piece.) For example, Professor Peter Schuck of Yale Law equated judges’ coming to predictable outcomes with judges’ failing to put aside their own views when deciding cases. But Scalia does not claim judges must disregard their own legal views, merely their views as to the best political, ideological, or policy outcome.
Indeed, Schuck’s own quotation supports Scalia’s argument rather than undermining it. Schuck clarifies that he sees judges acting predictably “not necessarily in the sense that they want a particular case to come out one way rather than another, but there tend to be fairly predictable, regularized patterns of interpretations.” Judges who apply consistent interpretive principles are precisely those Scalia praises; it is the practice of picking and choosing one’s interpretive principles in order to achieve a particular result that Scalia finds problematic. The piece quotes other liberal scholars as well — including Louis Seidman, who famously suggested it was time to give up on the Constitution altogether — to bolster support for calling Scalia a hypocrite. But not only do claims of hypocrisy not address the merits of his underlying argument, they fail to take the many counterexamples into account.
The piece buries its only hint at another side to the story near the end, when we discover that Scalia does not, in fact, vote for consistently “conservative” results. For example, he provided the deciding vote to strike down a statute prohibiting flag-burning, an act we can presume the justice himself does not support. This is but one example of the many actions Scalia or other similar judges might find constitutionally protected despite having personal opposition to them.
Animal cruelty, offensive demonstrations at military funerals, and violent video games have all gotten Scalia’s vote — not of approval, but of First Amendment protection.
Other examples abound of ways in which Scalia’s jurisprudence leads to “liberal” results, such as invalidating criminal sentences based on decisions by a judge rather than a jury, or strictly applying constitutional requirements to give defendants the opportunity to cross-examine technicians preparing DNA evidence against them.
It may be that a principled textualist/originalist jurisprudence leads to “conservative” political outcomes. Conservatives and libertarians are actively engaged in the effort to educate Republican politicians on the important constitutional principles that should inform their policy choices, with mixed success. But the important part of Scalia’s argument is that a judge should make his decision without respect to, say, whether the final result is upholding a law he would never have voted for or vindicating rights of a person he may find reprehensible. He should confine himself to considering the law as interpreted by neutral principles. While some judges may fall short of this standard, that is no reason to abandon the effort.