Law & the Courts

Scalia Practices Reason, Not Racism

(Chip Somodevilla/Getty)

Demonstrating once again that his reputation for cheap demagoguery has been well-earned, Senator Harry Reid this morning took a wild shot at Justice Antonin Scalia. “It is deeply disturbing,” Reid suggested, “to hear a Supreme Court justice endorse racist ideas from the bench of the nation’s highest court.”

In advancing this accusation, Reid was boosting a meme that has become popular on the left since yesterday evening. A representative example of its underlying charge can be found today in The Hill:

Justice Antonin Scalia surprised the Supreme Court and the public during Wednesday’s oral arguments in a case challenging affirmative action when he suggested that black students do better in “less-advanced schools” that are on “slower tracks.”

“There are those who contend that it does not benefit African Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less­advanced school, a slower-track school where they do well,” he said. “One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas.”

One does not need to have a law degree to notice what has happened here, or to comprehend just how utterly dangerous to liberty is this growing chorus of disapprobation. Put simply, Justice Scalia is being crucified for having fulfilled the dispassionate public role for which he is paid. Scalia, note, is a judge, not a politician, and he was speaking during a judicial hearing, not as a purveyor of policy. In this context, his comments were entirely reasonable — indeed, they were necessary. As Alex Griswold observes correctly at Mediaite, the Supreme Court’s “oral arguments are not an avenue for justices to share their views on the case at hand,” but “an opportunity to suss out any holes in the arguments of both parties.”

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If those justices are to do this thoroughly and honestly, they will inevitably have to bat around whichever ideas are brought up in the room. Why did Scalia suggest that it might be a good thing if the number of black students was diminished? Because the lawyers for the University of Texas presented that possibility as if it were self-evidently problematic, and Scalia had read a brief from two commissioners of the U.S. Civil Rights Commission (who filed it in their personal capacities) that argued otherwise. By pushing one of the parties to extend and deepen its arguments Scalia wasn’t revealing himself to be a “racist”; he was revealing that he understands his job. This, alas, is more than can be said for those who have called him names.

#share#If we are to have a functioning justice system, we cannot hold lawyers personally responsible for the unpleasant parts of their designated roles. When a defense attorney successfully demonstrates that the prosecution’s case is too weak for a conviction, he is not betraying a preference for murder or rape or grievous bodily harm, he is ensuring that his client gets a fair shake. When a corporate counselor illustrates that a given statute is so badly written that it cannot be used to secure guilt, he is not endorsing whatever misconduct yielded the case in the first instance but upholding the rule of law. And when a Supreme Court justice pushes those before him to respond to the countervailing briefs — or offers whatever devil’s advocacy occurs to him on the spot — he is not pitching his own ideas but mediating a dispute. The day that we fail to understand this will be the day we give in to barbarism.

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Are we already on that road? It certainly seems as if we might be. All too often these days we conflate principles with outcomes. Thus, to defend the free-speech rights of neo-Nazis is to be accused of endorsing their words. Thus, to protect the right to keep and bear arms is to be charged with complicity in its abuse. Thus, to oppose further government surveillance is to be lumped in with terrorists and hackers. During the 2013 Texas gubernatorial race, the Republican nominee offered the uncontroversial observation that, as attorney general, he was obliged to defend laws he personally opposed, and that this would have been the case during the 1960s, too. For this accurate appraisal of his professional responsibilities, his opponent labeled him a foe of interracial marriage. If this approach to government were to become quotidian, we would soon find ourselves living in a country ruled by men and not by law.

#related#And that, of course, is the real danger here. The American republic will survive the tenure of contemptible opportunists such as Harry Reid only as long as they are seen for what they are. But if Reid’s attitude prevails? As it stands, there exists a wall of separation between a person’s official government duties and his many private desires. That wall is but a handful of ram’s horns from collapse. If, as Reid hopes, the justices of the Supreme Court come to fear the honest and unruffled inquiry that is the hallmark of their office, there can be no objective law or rational discernment. There can be only power — power and the transient prejudices of the mob. Today, Senator Reid and his ideological bedfellows are racking up points in the 24-hour news game. Tomorrow, they will forget all about this play. A decade hence, they may come to regret how eager they were to trade the nation’s heritage for a glistening mess of pottage.

— Charles C. W. Cooke is a staff writer for National Review.

Editor’s Note: An earlier version of this artcile mistakenly referred to Justice Scalia’s having read “a brief filed by the U.S. Civil Rights Commission”. It was in fact filed by two of its commissioners in their personal capacities. We regret the error.


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