Justice Antonin Scalia may be President Bush’s model of an ideal jurist, but that sentiment appears not to be universally shared. In the last few days he’s been criticized harshly by David Broder, Maureen Dowd, and Andrew Sullivan.
Most of the first two columnists’ criticisms can be waved away. Broder is outraged that Scalia suggested, in dissent, that the logic of the Supreme Court’s affirmative-action decision would justify racial discrimination in other areas, to the detriment of “nonminority individuals.” Broder says that this “naked appeal to racial antagonism” was reminiscent of an “infamous” Jesse Helms ad. Broder also puts the words “racial discrimination” in quotes, as though to suggest that Scalia is imagining things. Now you can support the use of race as a factor in deciding whom to admit to college; but you can’t really deny that it is, in fact, discrimination and that it does, indeed, impose disadvantages on some people. You can say that only a few people really suffer anything and that the cost is worth it. But Broder would have us condemn Scalia for divisiveness when all he is doing is noticing that the Supreme Court says it’s okay to divide people by race when distributing a particular benefit. (Broder also misrepresents Scalia’s words in the sodomy case, by the way.)
Dowd, meanwhile, manages to insinuate that Scalia has a problem with interracial marriages. He hasn’t said a thing to justify that slur. Dowd herself, on the other hand, does appear to have a problem with uppity black people — at least if they’re on the Right.
But Broder touches on, and Sullivan raises clearly, an objection to Scalia that seems reasonable, at least at first glance. This is that Scalia’s dissents have not shown a proper judicial temperament. Writes Sullivan: “What troubles me about Antonin Scalia is not so much the substance of his views (although I share very few of them) but the angry, sarcastic, bitter tone of his judgments.” (Usually the sarcasm, etc., comes out in his dissents.)
Like so many of the arguments made in our debates about the judiciary, this one is an attempt to prescind from the constitutional disputes at issue. But these attempts fail analytically. Whether Democrats are being “obstructionist” or merely vigilant in the recent confirmation battles depends, for example, on an evaluation of the constitutional views at issue. Whether Justice Scalia is striking the right tone also turns out to be inseparable from the question of whether he is right on the law.
Sullivan writes that the judicial temperament should match the temperament of an umpire.” He continues,
If someone cares as passionately as Scalia does about the moral issues in what he has called the “culture war,” and if he isn’t even interested in moderating these passions in his judicial rulings, then it strikes me that he is not acting as a justice should act: with dignity, care, distance, and respect for alternative arguments. It’s the tone that’s off. It can be amusing, bracing, shocking, interesting; but it certainly isn’t a judicial tone. Ditto the arguments about the far right nominee, Bill Pryor, a man whose political language about abortion is so inflamed he has had to say to the Senate that he will simply lay it all aside if he is called to rule on the matter. No one can believe in this kind of psychological compartmentalization; and no one should trust anyone who promises it. The truth is: anyone whose views are that inflamed shouldn’t be anywhere near a federal bench. A talk-show host or blogger, maybe. A politician surely. But not a judge (italics in original).
Let me pause to note that “far right” tag on Pryor. Sullivan is certainly eager to cast people into outer darkness. Pryor’s record includes some decisions he has had to make, as an elected official, on abortion. That record does not suggest that he would have any trouble on the federal bench in sticking with the Supreme Court’s existing abortion jurisprudence. Recognition of the odiousness of that jurisprudence is entirely compatible with the recognition that it is not an appeals-court judge’s job to rewrite it.
Note also that Sullivan has segued from temperament to substance. If you believe that Roe v. Wade “has led to the slaughter of millions of innocent unborn children,” as Pryor has said — if, in other words, you’re a standard-issue pro-lifer — you ought not to be anywhere near a federal bench. If you are less troubled by 40-million-plus abortions, then you have the right temperament for the job.
Surely there are occasions when passionate rhetoric is appropriate, even from a Supreme Court justice. The dissents in Dred Scott included some language that was divisive in its day. Was Justice Scalia justified in seeing Stenberg, the partial-birth-abortion case in 2000, as such an occasion? Or in treating the affirmative-action and sodomy cases from last week that way? How could you begin to answer these questions without first determining whether Scalia’s analyses were correct — whether, that is, he was right on the substance?
Justice Sandra Day O’Connor’s famed minimalism is sometimes treated as a philosophy, but it can easily be recast as a temperament, and one often said to be inappropriate for a judge. What about Justice Anthony Kennedy’s weakness for rhetorical grandiosity? In the Texas sodomy case, he quoted some of the most wince-making words from Casey v. Planned Parenthood — the ones about people having a right to define the mystery of life for themselves, etc. Is it right for a judge to strike that kind of tone, soaring high above both the text of the Constitution and the facts of the instant case? What about the modern Court’s frequent accusations that other political actors are “irrational” and have suspect motives? The hysteria lurking below the surface of the term-limits and abortion cases, with their rather frantic insinuations that the country will come apart if left to its own devices?
Justice Scalia writes as he does precisely because he does not believe that his fellow justices are acting as “neutral umpires.” He does not believe that the disagreement between them can be characterized as fair-minded people reasoning in good faith about the meaning of the Constitution and reaching different conclusions. He believes that some of his colleagues are busy imposing a Constitution of their own devising, and sometimes barely concealing the enterprise. Scalia has evidence to back up this view. What evidence? Well, the bitter arguments of his dissents — arguments that, by the way, very rarely presuppose, even at their most furious, the rightness or wrongness of the policies at issue, contrary to Sullivan’s suggestion.
If you share Scalia’s view of such decisions as Casey, Romer, Dickerson, Stenberg, Lawrence, et al, then it is altogether rational to deploy a rhetoric that exposes the essential fraudulence of the Court’s claim to be interpreting the Constitution. (One assumes that the justices themselves are part of the audience to which he means to expose it.) What Justice Scalia is trying to do, in other words, is to demystify the Court; to suggest that it is engaged in exercises of raw judicial power. (Part of that power consists of our ignorance of the fact.)
Justice Scalia is not alone in seeing things this way. From time to time, the liberal justices accuse conservative majorities of raw politics as well, with heated rhetoric. (Pick a federalism case and read the dissents.) And Scalia’s aspersions against the legitimacy of the Court’s “constitutional law” reflect a half-century of conservative rhetoric on the judiciary. That rhetoric still underlies the Republican party’s position. Every Republican senator who says he wants a judge who will “apply” rather than “make” the law is implicitly accusing some judges of exceeding their legitimate powers.
To reject the Broder-Sullivan critique of Justice Scalia, in short, is to begin to see something important about modern judicial politics — something to which the good justice is trying to awaken us.