Justice Scalia Holds Court


Justice Antonin Scalia gave a lecture in Houston recently about Christian morality and economics and took questions from the audience. The answers to some of those questions vary from mundane to predictable to appalling. But let’s start with just plain illogical:

Q: Have you ever noticed that positions of justices on a particular subject changes or becomes more liberal the longer they stay on the bench?

A: “It’s demonstrably false. I’ve been there longer than anybody and I think I’m further from left than I was. … It is a common phenomenon.”

Uh, no. Your one example does not make it “demonstrably false” that some justices become more liberal on the court, especially on particular issues. Justice Kennedy and gay rights is an obvious example, but a general liberal drift is obvious in numerous justices over the last few decades — Earl Warren, David Souter, Harry Blackmun, John Paul Stevens and several more. Your single anecdotal example does not cancel all that out.

Q: What is the greatest miscarriage of constitutional justice during your tenure?

A: “Oh, there are many candidates. … The most disreputable area of our law is the establishment clause. (Congress shall make no law respecting the establishment of religion.) … A violation of the establishment clause that does not affect someone’s free exercise – there is no reason why you should have standing.

Wow. Seriously, just wow. Scalia calls himself a textualist, yet this argument would read the Establishment Clause out of the Constitution entirely. If you don’t have Establishment Clause standing without a Free Exercise Clause violation, then there is no purpose to that clause at all. It becomes meaningless and totally unenforceable. This is pretty much the cardinal rule of constitutional interpretation, you can’t read the language of a particular provision in such a way that it becomes superfluous and irrelevant. If you made this argument in a 2L con law class, you’d get a very low grade. And here is a justice of the Supreme Court making it. Appalling.

Comments

  1. Chiroptera says

    Ah, yes, Scalia, the only one on the Supreme Court who actually understands law. It must be so frustrating for him to have to serve with all those ignoramuses and idiots.

  2. rory says

    But of course, at the end of the day, the right interpretation is whichever one gets Nino the answer he wants.

  3. AsqJames says

    some justices become more liberal on the court, especially on particular issues. Justice Kennedy and gay rights is an obvious example, but a general liberal drift is obvious in numerous justices over the last few decades

    The “liberal drift” of the SC on certain issues (LGBT rights is the prime example) is surely a reflection of the “liberal drift” in society as a whole on those same issues. It could be argued there are other areas where the court (and society) has drifted in the opposite direction – campaign finance, 2nd amendment possibly, voter rights.

  4. says

    Actually, I’m a 2L and taking con law right now, and I think it’s possible to make Scalia’s argument and get a high grade, not a low one. It’s not a position I agree with personally, but I think it can be supported based on the Constitution, the separation of powers, and existing case law.

    Essentially, the argument would run something like this:
    (1) The Constitution restricts the court to ruling on “cases and controversies.” The justification for this restricted jurisdiction was discussed in Marbury v. Madison: “[t]he province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.”

    (2) These restrictions naturally lead to the standing doctrine today, as discussed by Scalia in Lujan v. Defenders of Wildlife, which detailed the “irreducible constitutional minimum” of standing. One of the key requirements for standing is “injury in fact,” which requires that the injury in question be “concrete and particularized.” An injury that is shared by the population as a whole is a “generalized grievance,” and not a particularized injury capable of creating standing.

    (3) Taxpayer standing is generally considered to be inadequate. The court actually carved out an exemption to that doctrine in Flast v Cohen, and allowed taxpayer standing in establishment clause cases. That is the exception, not the rule, however. It’s also a principle that has been eroded through a number of more recent cases (Valley Forge v. Americans United; Hein v. Freedom From Religion), and Scalia and Thomas have long advocated for overturning Flast.

    (4) If Flast is overturned, it will be extremely difficult for anyone to have standing to pursue claims in Establishment Clause cases. Establishment is a government action that tends, by its very nature, to create generalized grievances, not particularized injuries. The reverse is true, however, in free exercise clause cases. Here, the government action tends, by nature, to create particularized injuries to individual rights.

    Thus, as a general rule, standing will normally be absent in establishment clause cases, but present in free exercise clause cases.

    As I said at the start, I do not agree with this argument. But it’s not an unreasonable argument, and it matches Scalia’s long-held views on standing. It’s not a recent divergence on his part, or something he’s spun out of whole cloth.

  5. says

    Mike, I think what you just demonstrated for us is how incoherent the court’s standing doctrine is, and how artificial as well. Article 3 says that “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution.” I have always failed to see the restriction in that alleged restriction. It’s about as broad as it could possibly be. And the quote from Marbury provides very little additional restriction. It merely says that the court cannot intervene in matters of executive or legislative “discretion.” But if their actions are in violation of the constitution, they cannot be within a government official’s discretion. As Hamilton said in Federalist 78, the job of the Supreme Court is “to declare all acts contrary to the manifest tenor of the Constitution void” because “without this, all the reservations of particular rights or privileges would amount to nothing.”

    The court invented standing doctrine and has, over the last couple centuries, turned it into a bizarre, incoherent mishmash that is completely unintelligible. The ruling in Hein is the most recent and obvious example. It says that there is taxpayer standing to challenge the giving of tax dollars to religious organizations as long as that money is appropriated by Congress, but not if the money is appropriated to the executive branch, which then gives out the money. This constitutional hair-splitting is quite ridiculous. If it is a violation of the First Amendment to fund religious groups, then it should not matter which branch of government is doing it.

    This entire field of jurisprudence is little more than hair-splitting and the result is that many actions taken by the government are allowed to violate the constitution at will and there is no judicial means of challenging it. And there is nothing in the constitution that requires that, certainly not the “cases and controversies” language, which is about as broad as one could imagine it being.

  6. says

    Ed, your problem is you’re working with the interpreted, liberal, “living” text of the 1st amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”

    Scalia is working with the rigid, dead, black-and-white version the Founders (TM) actually wrote, the only copy of which he keeps hidden under his robe: “Congress shall make no law respecting an establishment of religion, AND prohibiting the free exercise thereof;”

    It’s a common mistake.

  7. eric says

    Mikedunfor:

    (1) The Constitution restricts the court to ruling on “cases and controversies.” The justification for this restricted jurisdiction was discussed in Marbury v. Madison: “[t]he province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.”

    Its been a while since I studied Marbury (IANAL, just a dabbler), but I vaguely remember reading this and assesing it to mean that the courts recognized they couldn’t reach out and rule on things without a case before them – but that’s it. No stronger restriction. That “to decide on the rights of individuals…” sentence is basically the court saying ‘hey, we can’t strike down executive or legislative action until someone makes a legal case out of it, and there’s a plaintiff and defendent.’ I never read it as saying that they can’t rule on general conduct of the government.

  8. Dennis N says

    To his first point, we know that our society becomes more liberal over time, but studies have shown that people also become more liberal as they age. It isn’t just younger generations replacing the older. It’s natural that this trend would be reflected in the court.

  9. felidae says

    O’l Tony needs to get checked out for in incipient dementia as it seems he’s getting weirder and less lucid lately.

  10. says

    An injury that is shared by the population as a whole is a “generalized grievance,” and not a particularized injury capable of creating standing.

    Even for an individual within the population as a whole? This is utter nonsense: how can a popualtion have a “generalized grievance” without individuals within said population having particular grievances?

    The Constitution restricts the court to ruling on “cases and controversies.” The justification for this restricted jurisdiction was discussed in Marbury v. Madison: “[t]he province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.”

    I’m with eric on this: this doctrine of standing only means there has to be a plaintiff and a defendant, not just a lobbying group, with someone showing how a particular law or policy effectively violates their rights or exceeds the limits of an agency’s legal authority. I believe Mike’s interpretation reflects just another manifestation of the old Republitarian “strict construction” that tries to restrict rights for whole classes of people by denying the validity of “generalized grievances.”

  11. says

    Ed –

    Like I said, I’m not in agreement with Scalia. I just wanted to point out that it is fairly easy to argue his point of view in ways that wouldn’t flunk 2L con law.

  12. says

    Article 3 says that “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution.” I have always failed to see the restriction in that alleged restriction. It’s about as broad as it could possibly be.

    Agreed. And the reason for this is to ensure that NO ONE is denied access to the courts, because when people are unable to even file suit in any court, then rule of law becomes meaningless.

    This entire field of jurisprudence is little more than hair-splitting and the result is that many actions taken by the government are allowed to violate the constitution at will and there is no judicial means of challenging it.

    The ENTIRE field? That’s going a bit far. The problem today is that, as a fictitious bartender said, “the Supreme Court follows the election returns;” and today that means right-wingers trying to salvage their ideology, and resorting to hairsplitting jurisprudential sophistry to deal with injustices without touching on any of the most fundamental dead-wrongness of their mindset.

  13. pacal says

    If you don’t have Establishment Clause standing without a Free Exercise Clause violation, then there is no purpose to that clause at all. It becomes meaningless and totally unenforceable.

    Of course Scalia realizes that, which is the whole point of his position. He wants to make the Establlishment clause unenforceable.

  14. DaveL says

    Scalia calls himself a textualist,

    He also calls himself an originalist, but he might as well call himself a taxidermist for all it has to do with how he renders his opinions.

  15. says

    Scalia calls himself a textualist,

    But that’s only because there’s no name for the judicial philosophy of “whatever gets me to the conclusion I want.”

  16. caseloweraz says

    DaveL: “He also calls himself an originalist, but he might as well call himself a taxidermist for all it has to do with how he renders his opinions.”

    Actually, calling Scalia a constitutional taxidermist might fit very well. He aims to convert the document into an empty shell of its original nature.

  17. criticaldragon1177 says

    Ed Brayton,

    I used to have a lot of respect for Scalia, and at one point, even wished we had more justices like him on the court, not any more. I’m glad I didn’t get my wish. I didn’t realize what he was really like at the time, and thought he really cared about the constitution.

  18. dingojack says

    Q: Have you ever noticed that positions of justices on a particular subject changes or becomes more liberal the longer they stay on the bench?

    A: “It’s demonstrably false. I’ve been there longer than anybody and I think I’m further from left than I was. … It is a common phenomenon.”

    Did Scalia have hearing difficulties? If not, then he sure does has difficulties with simple logic.

    ‘Have you noticed that….
    a) positions of justices have changed
    OR
    b) that justices become more liberal the longer they stay on the bench?’

    Since Scalia admitted that his position had changed over time and that he has become more conservative over time then:
    CONDITION A (changed position?): TRUE.
    OR
    CONDITION B (more liberal over time?): FALSE

    Therefore the RESULT IS TRUE.*

    Forget ConLaw 2L – he’d fail grade school logic classes.
    Dingo
    ——–
    * even allowing for the confusion with XOR

  19. says

    @ Mikedunford:

    IANALOEAPWCACSIMI* and your analysis of Tony Duck’s position is based on stuff I don’t spend a lot of time thinking about.

    Here’s the thing; IF what you say is true, I flatfuckingguarantee that it will NEVER apply to any decision that fatfuckdoucheidiot makes if it DOESN”T support his bald assertion.

    * I Am Not A Lawyer Or Even A PersonOG Whose Comments Are Considered Sane Or Germane In Many Instances

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