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Post Justice Scalia's Legacy
Created by John Eipper on 02/20/16 9:22 AM

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Justice Scalia's Legacy (David A. Westbrook, USA, 02/20/16 9:22 am)

Let me try to be helpful.

I started writing this post by bashing my friend Chiqui [Francisco Ramírez, 19 February] for his essentialism; no doubt he would be baffled by my coarse Teutonic wit. But I do want to start with the idea of representation, the idea that Court, and the law, should reflect "the people."

As an aside, in the alienation of the current dispensation, self-representation appears to be one of the central ways of being modern--one of the things I'm writing about these days. WAISers might be interested in Bernard Harcourt's new book Exposed: Desire and Disobedience in the Digital Age. And especially collective self-representation.

So, the fundamental approach taken here, and by a host of WAIS posts, is representational. It's not just "is the law political," it is "does the court reflect/further my political interest"? What has the law done for me (or the American middle class) lately? [Weird to ask so much from a tiny elite of great test takers, no?]

Having a political interest, is, of course, part of being human. Channeling and containing and even uniting different interests is what making a political entity is all about--consider the drama unfolding in Brussels.

Using differences of interests--factions--to prevent tyranny was a big part of the genius of the Founders, most especially Madison.

So the question at the Constitutional Convention was, how do "We the People" (stunning phrase, worth a long pause) create an institutional frame in which interests balance one another, leaving a government that is both (i) capable of acting effectively and (ii) will serve, rather than subjugate, "We the People"?

A big part of the national answer was, as WAISers presumably know, to devise a system of checks and balances. More fundamentally, the Constitution adopts a functional theory of government, enumerated in the first three articles (legislative, administrative, judicial) and assigning each function to its own "branch." The branches are distinct but not separate--i.e. no branch can exercise its functions alone (hence "check and balance," a more accurate term than "separation of powers").

The first article, dealing with Congress, is by its terms representational. The idea is that We the People, through our duly elected representatives, make laws and so govern ourselves. Hence "collective self-government."

The second article, dealing with the President, is administrative. Somebody has to run the government, treat other countries, command the army, and generally enforce the laws.

The third article treats the judiciary. Courts, at the very least, interpret and apply the laws. So, for example, if a given federal statute is being applied one way in one part of the country and another way in another, a so-called "circuit split," the Supreme Court may resolve.

Here's the first big point for my fellow WAISers: do not understand the judiciary as representational, at least not in any direct sense.

If courts are representational, they have no reason to exist (why should you care what nine old lawyers think?). As Cameron Sawyer pointed out, the judiciary is unelected and serves indefinitely. Only by drawing on the authority of something called "the law"--which is different from "my political interest"--does a court have the power to command obedience, especially from those who lose decisions. Articulating, much less understanding, why would take us into the realm of theology, and I have to do other things today. (For now, suffice it to say that the separation of church and state associated with Jefferson must be understood in institutional, as opposed to ontological, terms.)

The political difficulty in the United States, which has the national media and WAISers so exercised, is that the court system is used to resolve so much in this huge and very diverse nation. It's one of the key ways we hold the country together.

US courts have so much authority that they can engage in a kind of super-politics through the process of "judicial review." Consider gay marriage or federal finance law, for recent examples. US courts have the power, since Marbury v. Madison, to set aside laws enacted by the federal or the state governments.

Marbury v Madison is hardly self-evident, and may not be wise. Why should unelected courts ever have the right to set aside the actions of duly elected representatives? To my knowledge, and with the possible and relatively recent exception of the ECJ and the ECHR, the Supreme Court is the most powerful (relatively) pure judicial institution ever. (The King sat "in court," and could decide cases, but was still also a king, more than a judge. Athenian courts were themselves assemblies, and most parliaments have judicial functions [impeachment in the US Senate], and so forth and so on.)

So what gives the Supremes, just judges, the authority to set aside democratically authorized acts? It is not enough to say "democracy is imperfect." So, demonstrably, is judicial decision.

The American answer--and we are getting to the stakes in this discussion--runs like this. "We the People" were at the founding and are still worried about our duly elected representatives and especially government officials. We do not give the government, not even elected officials, unlimited power. Instead, we established a system of limited government, the shape of which is set forth in a written document, viz., "The Constitution." Rephrased, the exercise of governmental authority is conceived of as a delegation; the terms of that delegation are contained in the Constitution.

So who determines the terms of legal documents? Courts. In the US, courts, and ultimately the Supreme Court, have the authority to say whether a given government action comports with the Constitution. This is how they check the power of the other branches.

What checks the power of the courts? Something must, because  that's the whole point of the scheme.

The point made by originalists, like Scalia, is that the text of the Constitution checks the power of the courts to check the power of the legislature and the executive, and of the state governments. The prior delegation of authority to the government is, well, prior. The Constitution says some things, it does not say other things. To analogize to commercial law, the court cannot "rewrite the contract." The court has to read the contract, and decide whether the government's action is permitted within the scope of that document. "We the People" can, of course, change the contract, and have, by amending the Constitution.

In response to some post on this topic, John asked whether Scalia's roll back of "judicial activism" was itself an achievement. Well, maybe. If you ask Americans to list their country's achievements, most will mention the Constitution directly or indirectly in short order. And the Constitution sets forth a limited scheme of collective self-government. By making extravagant and generally unreviewable claims about what the Constitution said, Scalia argued with considerable force, the Court set itself above democracy. And so "judicial activism" shades into "judicial usurpation." From this perspective, returning the Court to its proper role is restoring the health of the Constitutional scheme.

It should be noted that these are not absolute positions. Interpretations happen along a spectrum. Even the most activist lawyers, all good lawyers (and their clerks!) pay a great deal of attention to language. The law may be politics, but it is not just politics, or not ordinary politics. Good legal argument matters; the legal tradition matters. Conversely, even the most "originalist" judges must interpret texts in light of later decisions, the tradition, evolving circumstances. So it's a lot more nuanced than the caricature that emerges from the press. Chief Justice Roberts has been trying to say this lately. We should try to avoid thinking of Justices as "Republican" or "Democratic."

But the Court does not always make it easy to think of law rather than politics; consider Bush v. Gore. Which brings us back to Scalia's contribution--if the Court is seen as too political, it will lose its authority, and cease functioning as a court. We are a long way from that, but I believe (and am not alone) that the judicial enterprise has lost stature since the heady days of Brown v. Board of Education. Maybe that is a good thing--perhaps the Warren Court displaced too much water. But as in Europe, the problem of alienation looms . . .

Let me subside; i am just trying to sketch the basic problem here. I am not going to go into my own position on these matters in any detail. Not to be coy, I'm fairly liberal, at least as a first cut, and happen to think Scalia was something of a partisan, but let me avoid serious discussion of that question, too.

For present purposes, I simply want to sketch the importance of the core problem with judicial review, the so-called countermajoritarian difficulty, at least for anybody who takes democratic republicanism seriously. Scalia put that quite venerable problem front and center for a long generation of jurists, made it unavoidable. He is gone, but the problem is not.

JE comments:  Bert Westbrook's nuanced comments give us lots to think about on this fine Saturday.  (And a fine one it is; spring has sprung in Michigan, and I'm going outside to wash my cars.)

To my mind, the central Scalia paradox is how could he simultaneously argue that the Courts should not be political, but issue a reliable series of partisan decisions?  Why--as just one example--did Scalia's decision in Bush v Gore surprise absolutely no one?


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  • Justice Scalia's Legacy; Response to David A. Westbrook (Francisco Ramirez, USA 02/21/16 5:43 AM)
    Thank you Bert [David A. Westbrook] for your thoughtful exposition of February 20th.

    I know the Supreme Court is not a representative body and I do not argue that it ought to be. There would be no need for a Supreme Court, if its task were simply to reflect public opinion. That is, it would not differ from the executive and legislative branches. It would be a redundancy.


    I know the Court is constrained by the Constitution and I do not argue that this is a bad thing. I agree with you that it is problematic to think in terms of liberal versus conservative judges, as if the political preferences of the justices solely determine their decisions. I think it is safe to assume that Chief Justice Roberts' call on Obamacare was not guided by his political preferences, regardless of how one assesses that call. Furthermore, political preferences can change over time. Who would have predicted that former Klansman Hugo Black would be part of the unanimous decision reversing Dred Scott?


    In my view though the justices in Dred Scott were no more originalist than those in Brown v Board of Education. I do not think they came to different calls because the latter set of justices were activists and overreached while the latter were simply paying attention to the words in the Constitution. I think that the difference in calls was in good part due to differences in historical contexts and their influence on the thinking of the justices We know that context mattered in Brown v Board; heck, there was a black man making the case to the Court. That would have been unimaginable in the Dred Scott era. But the justices in the late 19th century court were not simply cognizant of states' rights with respect to schooling but also acutely aware that blacks had limited standing in the wider society. They and their issues mattered less because they were clearly thought of as inferior.


    One could accept my argument but contend that this holds only in very few instances. The exception makes the rule. Or, one could argue that it ought to not be the case ever and that either the justices in the 19th century erred or that Brown v Board erred. And, channeling my inner lawyer's lawyer self, one can say that the policy outcome of banning legal school segregation on the basis of race is good but should have been achieved via legislation. The same legal reasoning is evident among those who like the policy outcome of Roe v Wade but think invoking the right to privacy was judicial outreach.


    But all the excitement about Scalia's replacement has precious little to do with originalism versus activism and everything to do with the imagined policy outcomes, from the state of Obamacare to Roe v Wade. Most people do not care as to how the Supreme Court arrives at its decisions as long as the content of the decisions are what they see as good outcomes. Both Cameron and Bert, in different ways, remind that we ought to care how the Court arrives at its decisions and that brings us back to fidelity to the Constitution.


    I agree that all judicial calls need to be justified by reference to the Constitution. Where we may disagree is that I see the men, and now the women in black, as human beings exercising human judgments as to the constitutional status of this or that issue. The Founding Fathers were acutely aware of human frailty; the system of checks and balances was designed to cope with human frailty. But the robes do not transform humans into angels. The justices ought to strive to rise above the moment but split decisions and changes in decisions do not tell me that some were faithful and others not. They tell me that the justices are human.


    I reiterate that I do not argue that the Supreme Court ought to be a representative body. My argument is that what constitutes a good judicial decision is not easy to ascertain because fidelity to the constitution is even more difficult to gauge than strikes and balls, as per Roberts analogy. This is an argument about what I think is the case, not what it ought to be.


    One of the interesting things about Scalia's impact is the observation by some lawyers that they crafted their Supreme Court briefs with Scalia in mind. This could mean that they paid more attention to the words of the Constitution or to the filters through which Scalia would interpret these words. I suspect his legacy will be more the former than the latter.


    Bert, I find nothing in your text or Cameron's to be coarse. But I confess that I am at a loss as to whey you depict my text as essentialist.


    JE comments:  Francisco Ramírez underscores what I take to be a truth.  The vast majority of Americans care little about how the Court reaches its decisions:  they just want decisions they agree with.

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    • Thoughts on Scalia Legacy (Tor Guimaraes, USA 02/22/16 4:27 AM)
      After studying my WAIS colleagues' postings on the Scalia legacy, I have reached a few conclusions:

      1. We must always keep in mind that the US Constitution was created to ensure as much as possible that the US government policy and legislation would be a force to promote the desirable behavior supporting democracy, justice, and liberty for all Americans. Thus, ultimately the Constitution aims to direct policy and to guide human behavior.


      2. With such an extremely important objective, any changes to the Constitution must be implemented with extreme care to avoid any conflict with its main objective.


      3. Contrary to many people's opinions, how the Constitution is interpreted will affect government policy and determine right or wrong behavior to the extent that it supports or diminishes the processes necessary for the original Constitutional objectives: democracy, justice, and liberty for all.


      4. Special interests have managed to plant Supreme Court Justices supportive of their own agendas regarding specific matters. Thus, Justice appointments have become extremely contentious, as the nation's extreme partisanship increased and the dominant classes attempt to gain more control.


      5. The long-term performance (legacy) of specific Justices must be based on the extent to which his or her decisions promoted the original Constitutional objectives.


      6. Similarly to politicians who attempt to gain votes by verbally wrapping themselves in the flag or the Bible, we must watch out for the ones claiming to be devout constitutionalists. That is just another distraction from speaking about their specific agenda items. We might be better off trusting someone who says, "trust me, we are going to be great!"


      JE comments: Or "great again," by the inscrutable logic of Donald Trump.


      As for the long-term "greatness" of Supreme Court justices, does anyone besides a Constitutional scholar care about the process or how a decision is reached?  No, they want decisions that pass the judgment of history.  (What that judgment is, of course, is debatable.)  Take, for example, Dred Scott. Chief Justice Roger Taney probably read the Constitution correctly when he issued his loathsome decision.  Does this matter at all from today's perspective?


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