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A Supreme Difference

John Paul Stevens; drawing by Pancho

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In 1936, in United States v. Butler, a 6–3 majority of the Supreme Court held unconstitutional the Agricultural Adjustment Act of 1933, a New Deal measure to support farmers devastated by the Depression. The dissent, by Justice Harlan F. Stone, said that the majority’s reasoning was

addressed to the mind accustomed to believe that it is the business of courts to sit in judgment on the wisdom of legislative action. Courts are not the only agency of government that must be assumed to have capacity to govern.

Ancient history? Until recently one would have thought so, of the Butler case and others striking down Franklin Roosevelt’s efforts to deal with the Depression. For in 1937, in NLRB v. Jones & Laughlin, two justices changed their position and the Supreme Court abandoned the attempt to hold the government powerless to act against national economic disaster.

But now those pre-1937 decisions of the Court do not look so dusty. Once again we have headstrong conservative justices on the Supreme Court, eager to impose their vision of governance. In a suit that will reach the Court in a year or two, Republican state attorneys general are challenging the recently enacted health care law as beyond federal power: a claim reminiscent of the rationale of the decisions before 1937.

The justice who set the Court on its radical turn to the right is Antonin Scalia, the subject of Joan Biskupic’s fascinating biography, American Original. For years after his appointment by Ronald Reagan in 1986, Justice Scalia was often a loner, uncompromising in his views and seemingly unconcerned—indeed pugnacious—in his failure to enlist colleagues. Then, in 1991, Justice Clarence Thomas joined the Court, appointed by George H.W. Bush, and he almost unfailingly agreed with Scalia. In 2005 President Bush chose John Roberts as chief justice and Samuel Alito as an associate justice—both far to the right.

Chief Justice Roberts in particular made a profound difference. He came to the Court with the most definite political program of any appointee in generations: enlarge the power of the president, destroy affirmative action, support corporations. There were now four almost-certain votes for conservative outcomes, and Justice Anthony Kennedy often added a fifth. The way was open for decisions like Citizens United v. FEC in January 2010, which ended limits on corporate political spending.1

But Scalia remains the most interesting of the conservatives, the most provocative. He does not hesitate to be sarcastic, even contemptuous, about his colleagues when he disagrees with them. When Justice Sandra Day O’Connor disappointed him in 1989 by not providing the fifth vote to overrule the abortion decision Roe v. Wade, he wrote in dissent that her rationale “cannot be taken seriously.”

When, a few months earlier, the Court upheld the post-Watergate statute allowing the appointment of independent counsels to investigate executive branch wrongdoing, Scalia was the lone dissenter. He saw the law as an infringement on the president’s power to control the executive and said that it created a new branch of government, “a sort of junior-varsity Congress.” His language seemed shrill, but Kenneth Starr’s out-of-control impeachment investigation of President Clinton a decade later proved Scalia’s doubts prophetic.

Biskupic traces the roots of Scalia’s conservatism. His family was Roman Catholic on the conservative model of the Church before Vatican II, with the mass in Latin and the congregation not actively participating, and Scalia has held to that view. He and his family attend a church that celebrates the mass in Latin, and he told Biskupic in a 2008 interview that Vatican II was “not on my hit parade.” He attended a Jesuit high school for boys in New York where all students took part in junior ROTC.

After Harvard Law School he was drawn to the government in the period after Watergate when, Biskupic says, an “authoritarian bent” encouraged by church, family, and school “fostered his concern for…encroachments on the presidency.” As head of the Justice Department’s Office of Legal Counsel under President Ford he wrote an opinion saying that Richard Nixon’s texts and papers remained his property after he resigned the presidency; Congress overruled that view in a statute. He also helped persuade Ford to veto amendments to the Freedom of Information Act making it easier to penetrate government secrecy; Congress overrode the veto.

Scalia has had a skeptical view of the press for decades, deriding its claim to have a crucial checking part in democracy as a cover for “gotcha” exercises. He has been strongly critical of the 1964 Supreme Court decision in New York Times v. Sullivan, which extended First Amendment protection to statements challenged as libelous. He said, “The Court made up a new libel law.”

Affirmative action to try to alleviate the effects of discrimination against black Americans over the decades has been a special target of Scalia’s animus. In 2003 the Supreme Court, by a vote of 5–4, upheld a University of Michigan Law School program that modestly increased the number of successful minority applicants. Military leaders had joined in a friend-of-the-court brief favoring the program. Justice O’Connor, writing for the majority, reflected the argument of that brief when she said, “Effective participation by members of all racial and ethnic groups in the civil life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.”

Dissenting, Scalia mocked the ideas of diversity and “cross-racial understanding.” He said, “This is not, of course, an ‘educational benefit’ on which students will be graded on their Law School transcript (Works and Plays Well with Others: B+) or tested by the bar examiners (Q: Describe in 500 words or less your cross-racial understanding).” Writing more seriously in a 1995 separate opinion, he said:

Under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution’s focus upon the individual. To pursue the concept of racial entitlement—even for the most admirable and benign of purposes—is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.
With views that might have been designed to scandalize liberal-minded people, one might expect Scalia to be thoroughly disliked by lawyers and judges he has not hesitated to scorn. But that is far from universally true. Justice Ruth Bader Ginsburg told Biskupic how she felt after first meeting him: “I was fascinated by him because he was so intelligent and so amusing. You could still resist his position, but you just had to like him.”

Or consider an excerpt from a speech by Scalia in 1984 that Biskupic uses as an epigraph. The conflicts with which lawyers deal, Scalia said, “tend, as Charles Lamb suggested, to shatter the illusions of childhood rather quickly. Hence the image of the lawyer as the skeptical realist. Expect to find here no more a dreamer than a poet…. Billy Budd, Pollyanna, and Mr. Micawber could never have been lawyers.” How many judges would cite Billy Budd?

In describing Scalia’s views, Biskupic is detached. She avoids taking sides, leaving it to the reader to react with outrage or pleasure at his sallies. That is admirable in its way. But I have to admit to longing for the author to make some judgments. That is especially true of the doctrine that Scalia has proclaimed as central to his constitutional decisions: that the Constitution should be read according to its original meaning—the original understanding of its framers. Only a commitment to that doctrine, he argues, can prevent the Supreme Court from being a freewheeling body that can read whatever it wants into an eighteenth-century document.

The simplicity of the doctrine is appealing. It seems to promise certainty: a sure answer to the hard questions that bring cases to the Supreme Court. Just find out what James Madison thought about burning the flag as a form of political expression protected by the First Amendment, and go on to the next case.

Alas, it is seldom possible to know with assurance what the delegates to the Constitutional Convention of 1787, or the hundreds at the state ratifying conventions, thought about the particular issues that arise today. So far as we know, Madison did not think about the question of flag-burning. Nor is the answer to be found in the spacious text of the First Amendment: “Congress shall make no law…abridging the freedom of speech, or of the press.” What Scalia might say, correctly, is that Madison, the principal author of the amendment, had a very broad view of freedom of expression. But that general truth does not advance the specificity claimed by originalism.

The very spaciousness of so much of the Constitution’s language—freedom of speech, due process of law, and the like—was evidently designed to assure that its clauses would be applied to, and would survive, changing circumstances. Chief Justice John Marshall said in 1819, in McCulloch v. Maryland, that the Constitution was “intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.”

The idea that cases can be decided with certainty on the basis of what was understood in 1787 is not simple but simpleminded. I do not doubt that Justice Scalia believes it when he praises that notion. But in fact he does not apply it constantly. For example, he provided the fifth vote for Justice William J. Brennan Jr.’s opinion in 1989 that burning the flag as a form of protest was protected by the First Amendment.

A more egregious example of Scalia’s disregard for “original meaning” was the decision in Bush v. Gore in 2000, awarding the presidency to George W. Bush. The presidential election process described by the original Constitution left it to each state to decide its electoral vote. No case, no precedent, no original understanding gave the Supreme Court the jurisdiction—the authority—to consider, much less condemn, the process that the Florida courts were following to decide Florida’s vote. Justice Scalia said early on that Bush was entitled to an injunction against recounting of the Florida ballots because he had a lead of a few hundred votes. Would he have taken the same view if Al Gore had led by a few hundred and sought to stop recounting? My respect for the Supreme Court makes me reluctant to say this, but I see no escape from the conclusion that Bush v. Gore was a political decision.

Race is an illustration of how unhelpful the idea of original meaning can be. The campaign to end affirmative action achieved an important success in 2007, when the Court, in opinions by Chief Justice Roberts, found that voluntary programs in Seattle and Louisville to help keep school populations from becoming less diverse violated the Equal Protection Clause of the Fourteenth Amendment. To exclude a white applicant as a result of the diversity effort was racial discrimination, the 5–4 majority said. That could be a legitimate political argument against adopting such a program. But as a constitutional argument it has to reckon with the fact that a specific reason for adoption of the Fourteenth Amendment—the original meaning—was to assure a constitutional basis for Congress to pass civil rights acts advancing the rights of former slaves.

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    For more on this decision, see Ronald Dworkin’s articles in these pages: “The ‘Devastating’ Decision,” February 25, 2010; and “The Decision That Threatens Democracy,” May 13, 2010.

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