Will Scalia's Angry Dissents Win the Future?


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.