Magazine March 14, 2016, Issue

Scalia’s Last Opinions

(Roman Genn)
His final two dissents reveal themes of his jurisprudence

When death came for Justice Antonin Scalia, it came quietly and unexpectedly, far from his home and family, during a holiday break in the middle of the Supreme Court’s annual term. Had he lived to have things his own way, perhaps Justice Scalia would have planned on a quiet retirement, beginning at a time of his choosing, after a term’s end — followed by more time spent with his grandkids, more hunting trips, maybe some memoir writing.

Or perhaps Scalia went out just as (though not just when) he wished, in medias res, while his work continued and he had no end of it in view. He did not have a chance to write any memoirs; his opinions and his books, essays, and lectures off the bench will have to speak for him. He did not even get a chance to say to himself, “I’m about to leave the Court, and this is the last opinion I will ever publish.”

Yet so consistent, so powerful, and so penetrating in their devotion to the rule of law are Scalia’s judicial opinions that one may take one or two almost at random and catch a glimpse of the great patterns of his jurisprudence, as well as flashes of his famous wit. Consider his very last two, published on January 25 of this year — the final messages to his colleagues, to the legal community, and to the American people, which of course he did not know were final when he wrote them. Taken together, these two opinions — both of them dissents, a mode in which Scalia’s voice was unparalleled — say a very great deal about what he thought it meant to be a judge in our constitutional republic.

The first of these cases, Federal Energy Regulatory Commission v. Electric Power Supply Association, concerned that commission’s authority to regulate pricing policy on the nation’s electric-power grid. If this sounds like one of the more boring cases on the Court’s docket — the title alone is somnolent — perhaps it is. Yet it contained large problems of rulemaking by the administrative state, statutory interpretation by the judiciary, the separation of powers, and federalism.

The Federal Power Act permits the Federal Energy Regulatory Commission (FERC) to regulate the “sale of electric energy at wholesale,” which is to say, “for resale” to retail consumers. Retail transactions for electricity are expressly left by Congress to be regulated by the states. But in 2011, FERC issued a rule regulating the compensation paid to large-scale retail consumers (factories, for example) that enter into “demand response” transactions. These amount to promises to reduce their energy use at stated times in return for payment from wholesale regional “market operators.” FERC’s rule required consumers making this sort of agreement to be compensated at the same rate that energy producers would be paid for producing the equivalent amount of energy.

For a 6–2 Court (Justice Samuel Alito did not participate, possibly because he owned stock in a company that would be affected by the ruling), Justice Elena Kagan upheld FERC’s regulation of these transactions. Kagan’s reading of the statute is replete with references to how demand-response transactions affect the wholesale marketplace, since wholesalers take them into account when setting their prices. While this does not make them wholesale transactions themselves, she argues that if FERC’s power to regulate such transactions were nullified, these market exchanges would take place in a “no man’s land” where neither the federal government (regulating the wholesale market) nor states (regulating retail sales) has any role to play. Congress, Kagan insists, was determined to “eliminate vacuums of authority over the electricity markets” — determined, that is, that “some entity must have jurisdiction to regulate each and every practice” there. (Perish the thought, an unregulated economic transaction!)

Readers familiar with Justice Scalia’s restoration of “textualism” in statutory interpretation can anticipate the hammer coming down in his dissent (which was joined by Justice Clarence Thomas). Not for Scalia any arguments based on a putative congressional “purpose,” nor any “extratextual” considerations unless they grow directly out of reflection on the text itself (again, not out of reflection on its putative purposes). Show him the text, and precisely the part that the commission’s rule is said to be carrying out. Aha! The text of the relevant statute says FERC may regulate the “sale of electric energy at wholesale”? Well, then, a “plain reading of the statute” settles the case, because compensation of demand-response consumers who conserve energy may be a transaction with actors in the wholesale marketplace, but it is manifestly not a sale at wholesale that comes within FERC’s reach.

Scalia is completely unmoved by the “no man’s land” or “vacuum of authority” argument as well. On a plain reading of the statute, federal and state agencies would still have their respective powers over the wholesale and retail markets. But in any event, he noted, this leave-no-vacuum principle is a makeweight argument, fashioned by the judiciary itself in precedents that “base it (no surprise) on legislative history” — sources such as committee reports and legislative debates, which were always Scalia’s bête noire. He continued:

One would expect the congressional proponents of legislation to assert that it is “comprehensive” and leaves no stone unturned. But even if one is a fan of legislative history, surely one cannot rely upon such generalities in determining what a statute actually does. Whether it is “comprehensive” and leaves not even the most minor regulatory “gap” surely depends on what it says and not on what its proponents hoped to achieve.

Legal reasoning that presumes that federal power prevails wherever state authority looks impracticable to federal regulators deserves, Scalia says, to “disappear in the Court’s memory hole,” no matter what precedents there are for it.

In this homely legal case about administrative power, which will largely be forgotten the day after tomorrow by anyone not involved in it, we see so much of what Scalia contributed to the law. Where a statute is plain and unambiguous, he was unwilling to defer to agency interpretations that expanded the government’s authority over our daily lives and our market transactions. He was equally ready to cry foul when his fellow judges relied on dubious precedents, forays into legislative history, creative suppressions of a statutory text’s plain meaning, and special pleading about the federal bureaucracy’s “need” to solve some alleged problem, all in order to justify that same expansion.

Perhaps most notable in the FERC case, despite its hardly being mentioned in the course of his dissent, is Scalia’s defense of Congress, and thus of democracy itself. Congress, the people’s elected legislature, had written the Federal Power Act and created the commission administering it. Who’s the boss here? Bureaucrats who know what’s best for the people? Judges who aid and abet them? Or the people and their representatives? As Scalia and his co-author Bryan Garner wrote in their 2012 book Reading Law, “A system of democratically adopted laws cannot endure — it makes no sense — without the belief that words convey discernible meanings and without the commitment of legal arbiters to abide by those meanings.” The judge is most consistently the people’s champion when he resolves not to be their tribune.

In the second case from January 25 in which Scalia dissented — in his very last opinion — we see even more of the qualities that distinguished him as a judge, notably his fierce opposition to a vision of the judge as dispenser of sweetness and light and avatar of progress, even or especially in a case in which many people’s sympathies may be drawn to just such a vision.

Montgomery v. Louisiana was the case of a man who, at the age of 17, killed a sheriff’s deputy in Louisiana. Henry Montgomery was finally sentenced, after two trials, to life imprisonment without possibility of parole, and has been in prison for most of the last half century. But in Miller v. Alabama (2012), the Supreme Court decided on Eighth Amendment grounds (“cruel and unusual punishment”) that juvenile offenders cannot be sentenced to life without parole unless they are found to be truly incorrigible — a rare subset of cases, in the Court’s expectation. Following this ruling, Montgomery claimed that Miller should apply retroactively to his case, entitling him to resentencing or parole consideration. The state supreme court disagreed with him.

A 6–3 U.S. Supreme Court agreed with Montgomery, in an opinion by Justice Anthony Kennedy. But Kennedy had to, shall we say, get around certain difficulties in the Court’s precedents. The Court has settled on a set of standards for determining when new rules in constitutional law apply retroactively — a matter especially relevant in the field of criminal law, where many prisoners are behind bars on the basis of old rules that are later supplanted by new ones.

If a case has not yet been subject to a final judgment following appeals, then any new rule the Court has announced is supposed to be applied to it. This seems compelled by the supremacy clause of Article VI. But on “collateral review” after final judgment, when a court revisits a case under habeas corpus, the Court has said that federal judges must abide by the rules that were in place before final judgment — with a couple of exceptions, such as when a major new “substantive rule” is announced (for instance, a ruling that certain conduct cannot be prosecuted as a crime at all, or that a certain class of offenders cannot ever be subjected to a certain punishment). This standard is understood to be an interpretation of the federal habeas corpus statute, not of anything in the Constitution, least of all the supremacy clause.

And what of collateral review in the state courts? It had always been understood to be entirely up to the states themselves — their legislatures, their judges — whether any recent constitutional rulings of the U.S. Supreme Court, in the exceptional categories or not, would be given retroactive effect. The Supreme Court wasn’t even thought to have jurisdiction to second-guess the decisions of state courts in such cases.

This is the fairly settled legal order that Justice Kennedy’s opinion gratuitously blew up in Montgomery. First, Kennedy asserted jurisdiction, claiming that new “substantive rules” of constitutional law must apply retroactively on collateral review in all courts, state as well as federal — and not by the force of the federal habeas statute, but because of the supremacy clause. Then he claimed, equally dubiously, that Miller had announced a new “substantive rule” because it had “generally” forbidden life without parole for juvenile offenders.

Voilà. It seems that now all new rulings announcing hitherto unheard-of meanings of the Constitution will apply retroactively if the Supreme Court says they are important enough, and that state courts as well as federal ones will be saddled with the work of reopening heaven knows how many cases for reexamination under the new rules, no matter how long ago they were settled under rules understood at the time.

This fairly breathtaking claim of federal jurisdiction drew Justice Scalia’s special brand of scorn, in a dissent joined by Justice Alito as well as by Justice Thomas (who also wrote separately). So, the supremacy clause did this? “But the Supremacy Clause cannot possibly answer the question before us here,” said Scalia. “It only elicits another question: What federal law is supreme? Old or new?” Scalia’s famous originalism in constitutional interpretation does not seem on the surface to be a large feature of this case (it is prominent and central in Thomas’s separate dissent), but one can see it between the lines of his impatience as he recounts the recent history of the Court’s struggle with the problem it has created for itself by continually inventing “new” meaning for the Constitution. Exposing the majority’s “sleight of hand” in its treatment of precedents going back to the 19th century, Scalia said that “the dicta cherry picked from those cases are irrelevant” and concluded: “All that remains to support the majority’s conclusion is that all-purpose Latin canon: ipse dixit” — simply the Court’s say-so.

But Scalia was just getting warmed up. At the time of Montgomery’s crime, he pointed out, the death penalty was available in Montgomery’s case, and was considered perfectly constitutional. But “our ever-evolving Constitution changes the rules of ‘cruel and unusual punishments’ every few years.” First the Court ruled out the death penalty for juveniles (in Roper v. Simmons, 2005), and then it ruled out most sentences of life without parole for juvenile offenders (in Miller, 2012). But even if Miller was to be foisted on state habeas proceedings, it could not be said to have announced a new “substantive rule” of categorical exclusion of a penalty where a certain class of offenders was involved, for Miller does permit states, even today, to sentence truly incorrigible juveniles to life without parole.

Yet here is what the majority in Montgomery has just imposed on our legal system, in Scalia’s apt description:

Federal and (like it or not) state judges are henceforth to resolve the knotty “legal” question: whether a 17-year-old who murdered an innocent sheriff’s deputy half a century ago was at the time of his trial “incorrigible.” Under Miller, bear in mind, the inquiry is whether the inmate was seen to be incorrigible when he was sentenced — not whether he has proven corrigible and so can be safely paroled today. What silliness. (And how impossible in practice . . .)

There was a “solution” to this conundrum, kindly offered by Justice Kennedy: simply treat every such offender as now eligible for parole. To which Scalia responded:

Of course. This whole exercise, this whole distortion of Miller, is just a devious way of eliminating life without parole for juvenile offenders. The Court might have done that expressly (as we know, the Court can decree anything), but that would have been something of an embarrassment.

Why an embarrassment? Because just a decade ago, the Court invalidated the death penalty for juveniles partly on the grounds that life without parole still remained available — in an opinion by Justice Kennedy. So today, Scalia said, “in Godfather fashion, the majority makes state legislatures an offer they can’t refuse”: universalize parole for past juvenile offenders in order to avoid having to perform “utterly impossible nonsense.” Scalia’s final words, in his final opinion: “Mission accomplished.”

Scalia’s Montgomery dissent is an apparently effortless tour de force. It seamlessly combines logic, a comprehensive grasp of precedent, a complete mastery of the relation between the Constitution and statute law, and a deep respect for federalism and the right of the states to have their own systems of criminal law. And it pours justifiable derision on the “pure applesauce” (as Scalia famously said elsewhere) of the “living Constitution,” while resting sturdily on the firm foundation of jurisdictional and interpretive principles that should limit federal judicial power.

Justice Scalia was rightly celebrated for his brilliant reasoning and his rapier-sharp prose style. From his majority opinions on free exercise of religion (Oregon v. Smith, 1990) and Second Amendment rights (D.C. v. Heller, 2008) to his famous dissents on the independent counsel (Morrison v. Olson, 1988), abortion (Planned Parenthood v. Casey, 1992), and same-sex marriage (Obergefell v. Hodges, 2015), among countless others, Scalia authored more opinions that will be read a century hence than anyone since John Marshall.

If he was not always right about the original meaning of the Constitution, he nevertheless restored that meaning to its rightly central place in the work of everyone who seriously undertakes constitutional interpretation. And Scalia seemed incapable of writing a stupid, ridiculous, or implausible opinion on any legal subject. His many dissents are an especially bittersweet joy to read. The joy comes from how fully liberated he was to say just what he thought, the bittersweetness from how often one wishes they had not been dissents but decisions!

Antonin Scalia had no tolerance for the impulse among his fellow judges to steal a march on democratic self-government, whether it was done with the trumpets of Progress blaring, as in the same-sex-marriage ruling last year, or accomplished more stealthily, by nibbling little “evolutions” of constitutional meaning, as in Montgomery or hundreds of other cases like it. His untiring work ethic led him to call overreaching judicial power by its right name every time he saw it.

Decisions such as FERC and Montgomery will not go down in the history books as big cases, and collections of famous Scalia opinions will probably not include either one of these dissents. Yet these two final opinions of the great Antonin Scalia capture, as if in a microcosm, his 30-year career of warning us about what he said on the last page of his last opinion: “As we know, the Court can decree anything.” In the coming struggle over Scalia’s vacant seat on the Court, it is up to us to heed his warning and do our best to make such a characterization of judicial power a distant and unpleasant memory. If we achieve that, then we can look back at Antonin Scalia’s distinguished career and say, this time with joy and not with the sarcasm he employed in his last published sentence: Mission accomplished.

– Mr. Franck is the director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, N.J.

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