New York Times (Opinion)
By Linda Greenhouse
February 18, 2016
In
the days since Justice Antonin Scalia’s death, there has been plenty of
talk about the substantial impact his absence will have on the Supreme
Court’s docket. I’d like
to shift the focus to the Roberts court itself.
Fate has handed the justices a chance to hit reset.
If
that seems an uncharitable, even tasteless observation, so be it. I’ve
become increasingly concerned, as my recent columns have suggested, that
the conservative majority
is permitting the court to become an agent of partisan warfare to an
extent that threatens real damage to the institution. Justice Scalia’s
outsize role on and off the bench contributed to that dangerous
development to an outsize degree.
I’m
not claiming that he was completely responsible. Given the Supreme
Court’s place in American life, there is no way it can avoid getting
singed by the polarizing politics
of the day. Nor was Justice Scalia solely to blame for the court’s drop
in public esteem as demonstrated by a Gallup Poll in September showing
that more people disapprove of the Supreme Court (50 percent) than
approve of it (45 percent). While this is a notable
departure from the historic trend, other governmental bodies have fared
far worse (Congress has a 16 percent approval rating), and the court is
to some degree caught in the back draft of generalized public mistrust
of government.
It’s
a situation that nonetheless calls for concern and exquisite care.
Chief Justice John G. Roberts Jr. appeared to reflect that concern, and
not for the first time,
when he spoke earlier this month at New England School of Law in
Boston. Contrary to the impression created by highly partisan Senate
confirmation hearings, he said, Supreme Court justices are not in
pursuit of an agenda and “don’t work as Republicans or Democrats.”
Maybe
not, but two weeks before the chief justice’s visit to Boston, the
court, acting on its own motion, turned a statutory case into a major
constitutional one when
it expanded its review of President Obama’s deportation-deferral
program to include the question of whether the president has violated
his constitutional duty to “take care that the laws be faithfully
executed.” And a few days after the Boston visit, the court
took the astonishing step of blocking the administration’s major
climate-change initiative before a lower court had even had a chance to
review it.
The
“take care” question mapped perfectly onto the dissent that Justice
Scalia read from the bench in June 2012 when the court struck down
portions of Arizona’s anti-immigrant
statute. (Chief Justice Roberts was in the majority.) Justice Scalia
took the occasion to excoriate the Obama administration for an earlier
version of its deportation-deferral program — a policy that was not at
issue in the Supreme Court case and had not even
been announced when the case was argued.
“Are
the sovereign states at the mercy of the federal executive’s refusal to
enforce the nation’s immigration laws?” Justice Scalia demanded, in a
public performance that
was as inappropriate as it was attention getting.
The
Feb. 9 order blocking the president’s Clean Power Plan was issued
without explanation and over the dissents of the court’s four liberals. I
don’t know whether Justice
Scalia was the driving force behind this highly unusual intervention in
an ongoing regulatory review. But clearly it couldn’t have happened
without him. Neither could the court’s other recent destabilizing
interventions, including the 5-to-4 decision in Shelby
County v. Holder to gut the Voting Rights Act of 1965.
The
voting rights decision was a pet project of Chief Justice Roberts, an
opponent of the Voting Rights Act since his days as a young lawyer in
the Reagan administration.
But Justice Scalia was much more than just a passenger. His behavior
during the oral argument gave a public face to the ugliness behind the
attack on the foundational civil rights law, which both houses of
Congress had reauthorized by overwhelming margins.
Addressing
Solicitor General Donald B. Verrilli Jr. during the argument on Feb.
27, 2013, Justice Scalia referred to the 2006 reauthorization and
observed:
“And
this last enactment, not a single vote in the Senate against it. And
the House is pretty much the same. Now, I don’t think that’s
attributable to the fact that it
is so much clearer now that we need this. I think it is attributable,
very likely attributable, to a phenomenon that is called perpetuation of
racial entitlement. It’s been written about. Whenever a society adopts
racial entitlements, it is very difficult
to get out of them through the normal political processes. I don’t
think there is anything to be gained by any senator to vote against
continuation of this act. And I am fairly confident it will be
re-enacted in perpetuity unless — unless a court can say it
does not comport with the Constitution.”
A
“phenomenon that is called perpetuation of racial entitlement”? “It’s
been written about”? I must have missed that reading assignment.
Then,
two months ago, Justice Scalia’s comment during the argument in the
University of Texas affirmative-action case embraced the so-called
mismatch theory beloved by
opponents of affirmative action when he said that some minority
students would benefit from “a less advanced school, a slower-track
school where they do well.” I can only assume that somewhere out there
is a tract that equates protection of the right to vote
with perpetuation of racial entitlement.
His
frequent parroting of right-wing talking points in recent years may
have reflected the contraction of his intellectual universe. In an
interview with the writer Jennifer
Senior (now a New York Times book critic) in New York magazine in 2013,
Justice Scalia said he got most of his news from the car radio and from
skimming The Wall Street Journal and the conservative Washington Times.
He said he stopped reading The Washington
Post because it had become so “shrilly, shrilly liberal” that he
“couldn’t handle it anymore.”
And
while earlier in his Supreme Court tenure, he prided himself on hiring
one politically liberal law clerk among his four clerks every year, he
abandoned that practice
at least a decade ago. In a recently completed (and as yet unpublished)
study, Neal Devins, a law professor at William and Mary, and Lawrence
Baum, a political scientist at Ohio State, calculated the percentage of
each justice’s law clerks over the past 11
years who had previously clerked for a Democratic-appointed judge on a
lower court. (This is a measure that scholars deem an acceptable proxy
for the ideological orientation of a justice’s chambers.) Justice Ruth
Bader Ginsburg ranked the highest, with 76.7
percent of her clerks having earlier clerked for Democratic-appointed
judges. The figure for Chief Justice Roberts was 16.3 percent. Justice
Scalia and Justice Clarence Thomas were tied for the lowest, at 2.3
percent each.
In
their paper, “Split Definitive: How Party Polarization Turned the
Supreme Court Into a Partisan Court,” the authors offer their
observations about the elite social
networks in which Supreme Court justices, no less than other power
players in Washington, spend their lives. They note “a growing
ideological divide among affluent, well-educated Democrats and
Republicans,” with the result that “Democratic elites are more
liberal than other Democrats; Republican elites are more conservative
than other Republicans.” For the Supreme Court, they conclude, “justices
on both the left and right are part of social networks that reinforce
conservatism for Republican justices and liberalism
for Democratic justices.”
These
insights might help explain why someone as smart as Antonin Scalia
seemed so un-self-conscious about his inflammatory rhetoric. He was
simply giving voice to those
he spent his time with. His world was one that reinforced and never
challenged him.
About
10 years ago, I attended a gathering of Canadian judges and lawyers at
Cambridge University. Justice Scalia gave his stump speech there about
how his Constitution
was not “living” but “dead,” with legitimate constitutional
interpretation limited to the words and original understanding of the
document’s authors. He may or may not have known that in Canada,
constitutional interpretation starts from the premise that “the
Constitution is a living tree.” In any event, his speech fell flat;
rather than greeting his remarks with the appreciative chuckles and
applause he usually received, the audience sat on its hands. I remember
his disconcerted expression.
Justice
Scalia received relatively few opinion assignments in major cases,
either from Chief Justice Roberts or Chief Justice William H. Rehnquist,
with whom he served
for 19 years. The reason was obvious: He refused to compromise, a trait
that put him at risk of losing a majority in close cases. I used to
wonder why he didn’t value effectiveness over perfection, why he would
not rather compromise than lose. But I came to
realize that Justice Scalia wasn’t playing the inside game. No matter
that he never persuaded a majority of his fellow conservatives on the
court to sign up for his brand of originalism.
What
mattered was his ability to invoke originalism as a mobilizing tool
outside the court, in speeches and in dissenting opinions. The message
was that courts have no
business recognizing “new” rights. (Except, evidently, new rights of
which Justice Scalia approved, such as an unconstrained right for
corporations to spend money in politics.) The audience for his dissents,
he told Ms. Senior in the New York magazine interview,
was law students. The mission he set for himself was cultivating the
next generation.
For
a long time, he did a good job of addressing the public outside the
court’s marble walls. In 2003, his dissenting opinion in the gay rights
case Lawrence v. Texas
warned that the court’s declaration of constitutional protection for
same-sex relationships would lead to protection for same-sex marriage.
State after state heeded the warning and enacted same-sex marriage bans.
Ten
years later, when he dissented from the court’s overturning of the
Defense of Marriage Act in United States v. Windsor, which found that
married same-sex couples were
entitled to federal benefits, he warned that the decision made the
constitutional right to same-sex marriage inevitable. “No one should be
fooled; it is just a matter of listening and waiting for the other
shoe,” he wrote.
Within
a matter of months, federal district judges around the country invoked
Justice Scalia’s dissent in striking down same-sex marriage bans. The
much less polemical
dissent in Windsor by Chief Justice Roberts, describing the decision as
a narrow one based on principles of federalism, went uncited.
Had
Justice Scalia overreached? Lost his touch? Or had times changed so
that not even the most mild-mannered dissent could have stemmed the
tide? Hard to say. Still, people
listened, just as they did last June when the court ruled for same-sex
marriage in Obergefell v. Hodges and Justice Scalia wrote that before he
would ever join such an opinion “I would hide my head in a bag.”
Since
everyone who ever met Justice Scalia is telling Scalia stories, I’ll
tell mine. The last conversation we had took place in the spring of
2013, on a Washington-bound
Amtrak Acela. I noticed him sitting across the aisle from me, wearing
headphones and working. He didn’t notice me, and I didn’t bother him.
But when we stood to collect our things, we found ourselves face to
face. “So, Linda,” he said, “what do you think of
the new pope?”
This
was such an unexpected conversation opener that I didn’t know what to
say. Pope Francis had been chosen just a few days earlier. I was hardly
qualified to discuss
the first Jesuit pope with a Jesuit-trained Supreme Court justice. “I’m
surprised they picked someone so old,” I finally managed.
“Well, he’s a transitional figure,” Justice Scalia said.
I
was too nonplused to ask him what he meant: transition from what to
what? (I can only imagine how the deeply traditional, Latin
Mass-attending Justice Scalia came to
regard Pope Francis as time went by.) Our train pulled into Union
Station and the moment passed.
Antonin
Scalia was, as everyone has noted, a unique figure on the Supreme
court. Will he prove to have been a transitional one as well? Will
originalism, having served
its purpose, now leave the stage?
For
the court and the country, this is an important moment in every
possible respect. As Justice Scalia’s colleagues gather later this week
for the ceremonial marking
of his passing, they will be taking stock of a life. Some of them,
perhaps, will also be taking stock of the court, where it has been and
where it goes now.
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