When the leaves start changing, I’m always a little surprised and reassured. This week in Raleigh we had a few more reds and golds, and the Canada geese at Shelley Lake were practicing flying in formation. I enjoyed spending some time with the trees and birds. A friend told me recently she found my nature photos to be a calming counterpoint to political discussions, which I do as well.
In the closing days of the presidential campaign, the Trump show has not gotten better. Trump is looking to short circuit the election, promising miracle Covid-19 cures, and agitating to have his political enemies arrested, while finding new ways to share the coronavirus with his employees and supporters.
With polls indicating a strong possibility of a landslide against him, I’m hoping we’ll soon be changing the channel. Unfortunately, Trump will be leaving a mess that will take a while to clean up. Hard to know what to do with those racist militias, for example. There’s also the Supreme Court.
With Justice Ginsberg’s untimely passing, I thought there was a chance that a remnant of decency and shame on the part of Senate Republicans could lead to postponement of a decision on a new Justice. Don’t ask me why I ever thought such a ridiculous thing. As of this writing, it looks like the nomination of Judge Amy Coney Barrett is greased to go.
Judge Barrett is a bit of an oddity among Supreme Court nominees, in that she didn’t go to a top tier law school, didn’t serve time in a power elite law firm or federal agency, and is a long time member of a luridly patriarchal religious cult. Her primary qualification, according to supporters, is her experience as a law clerk for Justice Antonin Scalia.
This is essentially code for: law school success and rock solid far right conservatism, with a low probability of a new justice straying toward the liberals. As a former clerk for Justice Scalia myself, I understand this logic. Also, for the minority who think the only important issue in American politics is stopping abortions, she is certainly an understandable choice.
Here’s the problem: in pledging allegiance to Justice Scalia, Judge Barrett is also signaling that she adheres to a judicial method that is seriously flawed. A lot of people don’t understand the inherent problems of that method, and the good reasons for abandoning it.
First, let me say, it was a great honor to clerk for Justice Scalia, and I personally liked him. He had a lot of warmth, and a good sense of humor. He and I shared a passion for classical music, tennis, and good Italian food. Although we were far apart on politics (I was a Democrat well to his left), we got along well.
When I began my year as a Scalia clerk in 1987, I was a recent graduate of the University of Virginia School of Law. Like most clerks, I’d done well in law school but had hardly any experience as a lawyer. Scalia presented me and others with a seductively attractive system for deciding cases which initially seemed logical and practical.
American appeals court judges, including Justices, are charged with deciding unclear points of law, and they are expected to give reasoning in support of their decisions. There are no set rules on what qualifies as adequate supporting reasoning. At a minimum, decisions are supposed to have some basis recognized in the law, and to represent more than the personal preferences of the judges.
Scalia’s declared methodology for interpreting the Constitution was to rely as much as possible on the original text, without reference to later developments or current views. He had a similar methodology for interpreting statutes, focusing on the language and disregarding legislative history or social context.
Scalia promoted his originalist system as objective and rational. It was, supposedly, the opposite of judicial activism, in which a judge promotes his or her own political and social views. Observing the methodology in action over the following decades, however, I came to see it as at best unreliable, and at worst a kind of intellectual grift. The reasons relate to the building blocks of language and history.
First, language is far less fixed and determinate than Scalia acknowledged. He presented ancient dictionaries as highly reliable guides, not recognizing they all have ambiguities, inaccuracies, and gaps. Moreover, there is never certainty that a particular writer meant the exact same thing as a particular lexicographer. Thus relying on dictionaries to interpret constitutional words and phrases like “commerce,” “due process,” or “equal protection,” is dubious.
At times, Scalia relied on historical research in support of his position, but he normally included only historical examples that supported the conclusion he hoped to reach, and skipped over evidence against his conclusions. He had no interest in the sometimes tedious work of professional historians examining new evidence to develop a richer understanding of the past. Indeed, he seems not to have recognized that respectable historians aren’t generally expecting to arrive at unchanging eternal truths. And of course, Scalia had neither the training nor the time to be a professional historian.
In fairness, Scalia was not the only judge ever to cite history selectively or otherwise stack the deck in favor of a desired outcome. Indeed, there is nothing unusual about judges using history and other evidence selectively to support their initial intuitions, rather than using legal analysis to determine the solution to a legal problem. Like other humans, judges are inclined to find that arguments supporting their intuitions are much more persuasive than those conflicting with them.
Few judges, though, have Scalia’s fierce belief in his methodology as always superior, and his corresponding utter disdain for alternative approaches. This belief made him reluctant to compromise and inclined to see those who disagreed with him as ignorant or acting in bad faith. It tended to undermine the possibilities of reasoned debate with colleagues leading to better decision making. If you already have figured out the truth, why waste time trying to work things out with those who haven’t seen the light?
As many have noted, Scalia was highly intelligent, and he was a skilled legal craftsman. A former debater, he was extremely good at avoiding arguments he disliked and diverting attention from his own weak points. Especially when his position was difficult to defend, his writing could be dense, lengthy, and exhausting. He was also sometimes very witty.
But there is no reason to think that Scalia’s opinions were generally either better reasoned or more often correct than his colleagues’. In fact, his confidence in his method — his self certainty — virtually assured that he would be less likely than others to examine his own prejudices and to try to account for them. It’s possible he believed his own biases were not a factor in his decisions, but his record shows the contrary.
Scalia’s world view and personal prejudices generally mirrored those of white, conservative, privileged men of his generation. I doubt that he developed his originalist method with the explicit intention of freezing the existing elite power structure or preventing the advancement of the less powerful. Perhaps he mistakenly thought he’d found the perfect formula for objectivity and the cure for activism.
Whatever his original reasons, in retrospect, it is obvious that his legal decisions closely conformed to his cultural assumptions and prejudices. Scalia almost always ended up where he started, having worked out an originalist argument that harmonized with his views. His system did not work as advertised, and was far from objective.
His positions in cases involving claims by racial minorities, women, gays, immigrants, prisoners or other less powerful groups were highly predictable: they would almost never get his vote. Environmental causes, such as controlling pollution or preserving habitats for endangered species, also didn’t get his vote. He favored teaching creationism, and didn’t pretend to be much interested in science. Large corporations, religious organizations, and other defenders of the status quo were to him the most appealing litigants, and most likely to get his vote.
If Judge Barrett models herself on Scalia, she will be using a judicial approach that pretends to be objective, but that almost always yields a result that favors those with wealth and power. She will see little merit in arguments for the rights and welfare of the less powerful.
Perhaps worse, taking Scalia as a model, a Justice Barrett would be unable to acknowledge that she had personal biases that, unless recognized, tend to drive her decisions. She would mistake the cultural assumptions bequeathed to her, such as patriarchal authority and aversion to homosexuality, as bedrock truths, and insist that those holding different assumptions were threats to democracy. She would find it difficult to take seriously any argument inconsistent with her intuition.
In addition, a Justice Barrett following the Scalia approach would reduce the possibility of collegiality and reasoned debate. The ideal of a well informed group of Justices collaborating together in search of reasonable solutions is hard to reach, but even harder if any Justice believes that only she has the truth.
Perhaps Scalia’s passionate but wooden approach to legal reasoning will eventually morph into something more useful, and his successors will get better at questioning their own cultural assumptions and considering those of others. In the meantime, there is ample reason to resist adding a Scalia acolyte to the Court.