Dispatches from the Creation Wars

Justice Scalia participated in a televised debate with Nadine Strossen, President of the ACLU’s board of directors, last night. The AP has a report about it, and there’s one statement in it that caught my eye, and the eye of STACLU as well.

Arguing that liberal judges in the past improperly established new political rights such as abortion, Scalia warned, “Someday, you’re going to get a very conservative Supreme Court and regret that approach.”

Which prompted this response from Jay at STACLU:

Bingo! Scalia slams them here. To put things in context, he said this after speaking about what he called judicial aristocracy, and how one day the consequences of putting so much power in the hands of nine lawyers might come back to bite them.

But this statement is actually an admission of something very important, and neither Jay nor Justice Scalia seems to recognize it. It’s an admission that all the conservative talk of the importance of “non-activist” judging and “judicial restraint” is really, as I’ve maintained all along, just a cover for not liking the results. Look at the argument Jay is making, that liberals have somehow “put too much power” into the hands of the court and when conservatives take over the court, they can use that power in ways the liberals won’t like.

But of course, this is nonsense. The Court has precisely the same power it has had from the very beginning, the power to overturn legislative acts that it deems contrary to the Constitution. How and when they’ve exercised that power is an entirely different question, you see, and if conservatives actually believed that the Court had exercised its power unjustifiably, then all they would do when they’ve got control of the court is….stop using that power.

The only way that conservatives could use this alleged power liberals have given the court in ways that liberals would regret is if they plan to engage in retaliatory “activism”. The way this argument is phrased, as the regret coming because conservatives will use the power they claim is being used unjustly in an equally unjust manner against their political enemies. And if they do that, then it proves that all that talk about “judicial restraint” was nonsense from the start. It means that they don’t really oppose what they claim to believe is use of the court to achieve political goals; it means that they only oppose the use of the court to achieve political goals they disagree with, because in power they will do the same thing.

Of course, all of this was obvious long before now. Scalia is absolutely guilty of doing the very thing he accuses liberals of doing on the court, which is to create an inconsistent intepretive theory to ensure the result he favors. If he did not do that in both Raich and Gonzales v Oregon, where he completely jettisoned any pretense of originalist thinking to vastly broaden the scope of the interstate commerce clause in order to achieve the anti-drug result he wanted, then I’d like to hear a better explanation for it.

Justice Thomas rightly took Scalia to task for his inconsistency in Raich, as did many conservative legal scholars, including Stephen Bainbridge, who remarked, “There is much to be admired about Scalia. It no longer seems possible, however, to believe that he is developing a coherent conservative jurisprudence.” Thus, when Scalia says that you will regret expanding the court’s power when the conservatives take over, it can only mean that he intends to do then what he claims now is unjust. So now we have seen that he already engages in the very behavior he claims is unjust, and intends to do so even more in the future. So much for intellectual consistency.

Comments

#1 plunge
October 16, 2006

I dunno: I think Scalia’s statement is, on it’s own, a fair one, and one commonly made all the time by law profs. He’s not saying (or, as you put it, admitting) that HE or conservatives he supports will rightly abuse that power. But he is saying that if you concede the ability to invent rights judicially, then you can’t always have that power go your way.

We make the exact same argument ALL THE TIME about school prayer: i.e. sure you might think it’s nice if your sect gets the ability to lead kids in prayer: but if you make that the acceptable policy, you can’t just restrict it to your favored sect.
#2 Ed Brayton
October 16, 2006

plunge-

I don’t buy it. If conservatives actually believe that inventing rights is wrong (and they don’t, by the way, this is empty rhetoric on their part), then they would not engage in inventing rights regardless of whether liberals would like those rights or not. Remember, Scalia specifically said that they would regret this if conservatives took over the court, which means those conservatives would actually have to do something to lead to that regret by liberals. In this case, they would have to do what they now claim shouldn’t be done. And if they do that, then they obviously didn’t mean it when they said it shouldn’t be done, they only meant it shouldn’t be done if they disagree with the results.
#3 Phobos
October 16, 2006

Ah, it’s good to see that the members of our highest court are so unbiased.

I’m with you on your interpretation, Ed. Perhaps I could give him the benefit of the doubt…if it weren’t for his history in the court.
#4 Mustafa Mond, FCD
October 16, 2006

Is this the sort of activity in which a sitting Supreme Court justice should be participating? It could come back to bite Scalia in ways he didn’t anticipate; look for example at how he had to recuse himself from the Pledge case a year or two ago due to public statements he had made.
#5 Ellery
October 16, 2006

One must be careful with language here. Did the SC “invent a right to abortion” or merely say that governments do not a have right to interfere in a strictly personal matter?

I know that the Court is criticized for “inventing” a “right to privacy” (although I personally think this was well-argued in the decision). But maybe this was an unfortunate choice of words. If the Court had said, “respect for privacy, respect for personal decisions”, half the debate would vanish.

The same matter comes up in school prayers. A “right to pray in public”, which Scalia and Roberts would assert under the free exercise clause, contrasts with a right to be left alone by authorities, that is, governments do NOT have a right to subtly advance or impose a religious notion on school students.

What governments may not do is an alternative frame for the discussion.
#6 Ed Brayton
October 16, 2006

I agree with you completely, Ellery. I would also note that the more narrowly you define a right, the easier it is to dismiss it. Lawrence was not about a “right to homosexual sodomy”, it was about the right to form intimate associations with other consenting adults in the privacy of our own homes without being thrown in prison for it.
#7 Ramsey Wilson
October 16, 2006

I long have agreed that the label “judicial activist” can be used to describe decisions of justices and judges from across the political spectrum; hence, the label adds nothing to the political discourse. But, Ed, I don’t think what you wrote is necessarily so:

If conservatives actually believe that inventing rights is wrong (and they don’t, by the way, this is empty rhetoric on their part), then they would not engage in inventing rights regardless of whether liberals would like those rights or not. Remember, Scalia specifically said that they would regret this if conservatives took over the court, which means those conservatives would actually have to do something to lead to that regret by liberals. In this case, they would have to do what they now claim shouldn’t be done.

It seems that Scalia could’ve meant that conservative justices will correct the perceived wrongs of liberal activist justices, i.e., they will uncreate “new political rights such as abortion.” That result would seem consistent with the philosophy that justices ought not be in the business of establishing new political rights.
#8 Ed Brayton
October 16, 2006

Ramsey Wilson said:

It seems that Scalia could’ve meant that conservative justices will correct the perceived wrongs of liberal activist justices, i.e., they will uncreate “new political rights such as abortion.” That result would seem consistent with the philosophy that justices ought not be in the business of establishing new political rights.

No, I don’t think this fits what he said. Remember, he said that liberals would regret “that approach” when conservatives take over the court – not merely that conservatives will reverse what liberals do, but that they will use the power that liberals think the court should have to achieve non-liberal results. Well what approach is he complaining about from liberals? He says that he means an activist court intervening in what ought to be political decisions made by elected bodies rather than by unelected judges. That can’t just mean that conservatives will undo what liberals did, it has to mean that conservatives will use the same approach they allegedly object to now to achieve results that liberals won’t like. But if they do that, then they will prove that they didn’t really object to “that approach” at all, they only object to “that approach” when it leads to results they don’t like.

And again, it’s very clear from Scalia’s own history of rulings that he himself engages in exactly the same behavior that he accuses liberals of. He jettisons textualism and originalism very easily when the results don’t match up to what he wants. He wants creationism in schools, so in Edwards he dissents and does the very thing that he says judges should not do, quotes the legislative history of the bill in order to justify its constitutionality. He wants harsh drug laws, so in Raich he conveniently throws originalism right out the window, ignores the original meaning of the commerce clause completely (as did the liberals on the court – Ginsburg, Breyer and Stevens – with whom he joined for that decision, but at least none of those three claims to be an originalist) and reaches the conclusion he wants.
#9 Ellery
October 16, 2006

Thanks, Ed. I have lived through many discussions of church&state over 50 years and caused some changes (with much help from many others). What impresses me is that segregation/discrimination of races is now a dead issue, but posting Commandments is now thought central to preserving The American Way of Life.

The notion of “unalienable rights” is a great rallying cry to oppose oppression from all authorities in our teen years, and I think our Founders knew this feeling. In the discussion about what “I have a right to” we are missing out in what government does NOT have a right to. The religious right blurs this distinction, because they, like all religious organizations, desire to capture the power of government to promote/enforce their views, not just on their believers, but on everyone else. And non-believers are regarded as a threat.
#10 RickD
October 17, 2006

I’m still trying to wrap my mind around “Someday you’re going to get a very conservative Supreme Court.”

This would be in contrast to the current one with 7 Republican appointees, five of whom have always been conservative, four of whom are considered extremely conservative by historical standards, and featuring Scalia and Thomas, who think theocracy is compatible with the Constitution?

Thomas believes that the purpose of the Establishment clause was to prevent the Federal Establishment of a religion, and thus leave the door open for individual states to have their own established religions (I kid you not!)

“Moreover, incorporation of this putative individual right leads to a particular outcome: It would prohibit precisely what the Establishment Clause was intended to protect — state establishments of religion.”

Scalia, meanwhile, completely rejects the Enlightenment notion that government assumes its powers as a function of the consent of the people governed, and instead claims that the government rules by some kind of divine right. From the Ten Comandments case:

“It’s a symbol of the fact that government comes — derives its authority from God. And that is, it seems to me, an appropriate symbol to be on State grounds.”

(Of course, Ed has written about this before.)
#11 Ed Brayton
October 17, 2006

RickD-

I think it goes too far to say that either Scalia or Thomas advocates theocracy. Yes, Thomas does not believe the establishment clause is incorporated (and I believe he’s wrong on that and have written about it in the past), but that doesn’t mean he thinks theocracy is consistent with the Constitution. He does apply it at the Federal level, and also applies the incorporation of the free exercise clause, free speech clause, and so forth, to the states. Those are certainly in direct opposition to a true theocracy.

As for Scalia, believing that government derives its authority from God does not make one a theocrat either. Even Jefferson believed something similar, thus he wrote in the Declaration that our unalienable rights are endowed by the Creator, and that governments are created to secure those rights. Scalia confuses the founders’ basis for rights with the source of government’s authority (which they believed to be the people), but that’s just sloppiness, not evidence of theocratic rule. At worst, Scalia is an accomodationist on questions of church and state. Yes, I think he’s wrong on that, but I think when we use a word like theocrat to describe mundane positions like that, the word loses its meaning. Save it for those who really are theocrats (and there are enough of them today, unfortunately).
#12 PhysioProf
October 17, 2006

“Thus, when Scalia says that you will regret expanding the court’s power when the conservatives take over, it can only mean that he intends to do then what he claims now is unjust. So now we have seen that he already engages in the very behavior he claims is unjust, and intends to do so even more in the future. So much for intellectual consistency.”

If I am not mistaken, Scalia is a big proponent of the power of stare decisis. Thus, he could conceivably argue that the principle of stare decisis *requires* him to engage in “judicial activism”.

I’m not saying this is anywhere close to a good argument, just that it could be made.
#13 Ed Brayton
October 17, 2006

Scalia is as much a proponent of stare decisis as everyone else. That is, everyone thinks stare decisis is important except when they strongly disagree with a prior ruling. Then it’s not important. Except me, I don’t think it’s terribly important at all. If a decision is wrong, then reverse it, regardless of how long it’s been allowed to exist. If it was up to me, I’d happily go back to the 1930s and overturn Wickard, and even go back to the 1870s and overturn the Slaughterhouse cases.
#14 Skemono
October 17, 2006

Thomas believes that the purpose of the Establishment clause was to prevent the Federal Establishment of a religion, and thus leave the door open for individual states to have their own established religions (I kid you not!)

Well, wasn’t it? Unless I am mistaken, the amendments didn’t apply to the states until the 14th amendment was passed, and then courts gradually used that to say that the same rules applied to the states.

Or are you saying that he doesn’t believe it applies to the states now?
#15 Leni
October 17, 2006

I caught a bit of this on C-SPAN last night. Scalia said a couple of telling things.

When Strossen brought up gay marriage he went on a tangent about how there has never before existed a society which did not govern sexual mores. As if that would be the direct result of legal gay marriage. It was pretty ridiculous. He utterly failed to make the distinction between no legal issues with regard to sexual behavior and this particular legal issue.

I was insulting the TV at that point.
#16 Foggg
October 17, 2006

The wingnuts are planning for overt conservative judicial activism on big scale.
Disrobed: The New Battle Plan to Break the Left’s Stranglehold on the Courts