Antonin Scalia

Will Scalia's Angry Dissents Win the Future?

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Supreme Court Justice Antonin Scalia isn't known for his verbal niceties, particularly when he's filing a dissent. In 1989 Scalia famously said that an opinion from Justice Sandra Day O'Connor was "irrational" and "cannot be taken seriously." In 2007 he took aim at his own side, upbraiding Chief Justice John Roberts for practicing "faux judicial restraint" that was really "judicial obfuscation." The list goes on. In fact, there's even a book for sale with the humble title Scalia Dissents: Writings of the Supreme Court's Wittiest, Most Outspoken Justice.

But are these stinging dissents doing Scalia's constitutional vision any good? That's the subject of New York Times legal commentator Linda Greenhouse's latest column, where she asks, "what does this smart, rhetorically gifted man think his bullying accomplishes?" As she writes:

It's a puzzle. But having raised the question, I will venture an answer. Antonin Scalia, approaching his 25th anniversary as a Supreme Court justice, has cast a long shadow but has accomplished surprisingly little. Nearly every time he has come close to achieving one of his jurisprudential goals, his colleagues have either hung back at the last minute or, feeling buyer's remorse, retreated at the next opportunity.

In other words, Greenhouse thinks Scalia cannot contain himself because he has become so furious and resentful. It's a strange analysis. For one thing, as George Washington law professor Orin Kerr points out in a superb blog post, Scalia himself has offered an explanation for his behavior. Here's a 2008 exchange between Scalia and The Wall Street Journal:

Do you view the judicial dissent as a form of advocacy?

Yeah, in a way. I'm advocating for the future. Who do you think I'm writing my dissents for? I'm writing for the next generation and for law students. You know, read this and see if you want to go down that road. We'd be better off on all sorts of issues – on legislative history, on originalism. But I'm not going to persuade my colleagues and I'm not going to persuade most of the federal bench. They've had this so-called living Constitution stuff, you know, from the time they were in law school. That's not going to change. But maybe the next generation will see the advantages of going back to the way we used to do things.

You'd think Greenhouse would have at least mentioned Scalia's reasoning, rather than just offer her own speculation.

And Scalia does have a point. Today's harsh dissents do sometimes become tomorrow's majority opinions. Justice Stephen J. Field's magnificent dissent in the Slaughterhouse Cases (1873), for instance, forcefully argued that the 14th Amendment protects both civil rights and economic liberty, including "the right to pursue lawful employment in a lawful manner." Field spent the rest of his career advancing that position, filing powerful dissents throughout the late 19th-century that made the case for protecting economic rights under the 14th Amendment. Within a few years of his retirement in 1897, a majority of the Court had come around, embracing Field's libertarian approach in Allgeyer v. Louisiana (1897) and Lochner v. New York (1905).

On the other side of the ideological aisle, Justice Oliver Wendell Holmes was celebrated by Progressive Era activists for his harsh dissents in economic liberty cases like Lochner. By the time of the Supreme Court's infamous "switch in time that saved nine" during the New Deal, Holmes-style hostility to the judicial protection of economic rights was becoming the majority view—where it unfortunately remains to this day.

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  1. Say what you want about Scalia, he’s still far better than that stupid “proud latina” Sotomayor.

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  2. Scalia asks a question about police professionalism years ago and gets creamed at Reason forever. The man is brilliant, and calls it like he sees it. He’s not a pussy like some writers at Reason.

    1. He never took it back or stated that the “new professionalism” was a myth and that innocent citizens we’re repeatedly subjected to the business end of police abuse.

      Get back to me when he addresses the topic again!

    2. He’s not a pussy like some writers at Reason.

      Are you being sarcastic?

      How is it being a pussy to write an article today that praises Scalia on the issues that they agree with him and when he makes a desision that reason disagrees with him, such as the “police professionalism” they write a critical article on him?

      To me that looks more like “calling them how they see them” then the weird case you make for it.

      Furthermore sticking to your principles even when it means criticizing your natural allies, like Reason has done, is the exact opposite of being a pussy.

  3. Is he suppose to clarify every question he ever asks from the bench? Do the other justices do that? Bull shit, you guys hate him because he won’t rule the way you think he should on the reefer.

    1. I don’t hate him….I refuse to give him a pass in this instance because he’s completely wrong in the matter being discussed.

      1. I’ll give him props when he’s right, and piss on him when he’s wrong, same as all the other justices.

  4. Scalia buys into the “everything is interstate commerce” theory as much as any of the other justices. He used Wickard v. Filburn to justify United States v. Lopez.

    1. I don’t know that he actually buys into it himself; he does, however, I think, demonstrate too much fealty to those precedents.

  5. You’d think Greenhouse would have at least mentioned Scalia’s reasoning, rather than just offer her own speculation.

    Uh, she writes for the New York Times. You wouldn’t expect anything but advocacy.

    1. Uh, she writes for the New York Times. You wouldn’t expect anything but advocacy propaganda.

      FIFY

  6. “what does this smart, rhetorically gifted man think his bullying accomplishes?”

    Well, first of all, I call bullshit on the “bullying” notion. He’s not “bullying,” he’s simply not pussyfooting around what his position is on the issue. He’s staking out his argument with what Thomas Jefferson would have called “manly firmness.” If he thinks another justice’s argument is unsound, he’s going to come out and say it’s unsound, in no uncertain terms.

    I don’t see that as “bullying.”

    And I always enjoy reading his opinions – he’s the most entertaining and comes up with the most amusing passages. Like the one about the “Lemon” test for determining whether there is excess “entanglement” of government in religion. I mean how could you not like this:

    Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: our decision in Lee v. Weisman conspicuously avoided using the supposed “test” but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart (the author of today’s opinion repeatedly), and a sixth has joined an opinion doing so.

    1. Notice how “bullying” has become to new scorn word of choice for the intellectual liberal elite. Now in addition to being racist, sexist, neo-Nazi, homophobic corporate shills who provoke acts of violence with incendiary rhetoric, articulate, outspoken persons who dissent from Progressive orthodoxy are also “bullies.”

      1. And yes, I much prefer Scalia’s direct, forceful prose to the turgid, pretentious, passive-voiced, hackneyed drivel that passes for judicial writing from most judges.

  7. Oh yeah – I also have that “Scalia Dissents” book – somebody gave it to me for Christmas a couple year ago. It’s easy and interesting reading – again, whether you agree with him in every case or not (which I certainly don’t).

  8. Scalia’s “consistent originalism” is just a rhetorical fig-leaf for an especially strong streak of big-government theocratic statism.

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  10. Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School Distri

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