Ronald Dworkin explains the intellectual dishonesty of several recent decisions by the conservatives on the Supreme Court in a recent article in The New York Review of Books. (subscription may be required). Dworkin is a major figure in American Jurisprudence, unlike most of the Supreme Court Justices, whose backgrounds are quite ordinary. As a measure of his importance, he ranks second (behind Richard Posner) among the most-cited legal scholars. This is significant, because in law, unlike science, appeals to authority are an accepted, indeed mandatory, form of argument.

One of the examples used by Dworkin is Arizona Free Enterprise PAC vs. Bennett, a follow-on to Citizens United. In Arizona, a candidates receive public money for their campaigns if they agree to limit their spending, but the law allows anyone to spend as much as they want if they don’t get public money. If a candidate who doesn’t receive public money spends more than a stipulated amount, the publicly funded candidate gets more money.

The stated rationale of Citizens United was that speech is good, and if you limit the amount of money rich people and their Waldo corporate persons can spend, you limit speech, which is bad. The Supreme Court hasn’t ruled in Arizona Free Enterprise PAC, but based on the transcripts of oral argument Dworkin says that the conservative justices

… agreed with the plaintiffs that the act would “chill” the speech of privately funded candidates who would know that if they
spent more than the stipulated limit their opponents would receive additional funding. In that way, they suggested, the act infringes the rights of privately funded candidates to speak as freely as they wish.

This is a bizarre argument. The five justices do not challenge the constitutionality of public funding; they hardly could since such funding obviously increases the amount—as well as the diversity—of political speech. But public funding presumably deters many rich candidates from broadcasting dubious claims they would happily broadcast if their opponents had no money to rebut them. Indeed, public funding for potential opponents might well deter some wealthy individuals from running for office and therefore from campaigning at all. The First Amendment can hardly be thought to guarantee rich politicians and organizations that they will not be effectively opposed, even when the possibility of effective opposition might induce them to say less.

It is indeed a bizarre argument, but you need bizarre arguments if you have an agenda you follow religiously. As Dworkin puts it:

So if a justice is disposed to advance [certain] goals through his decisions, he must invent arguments that disguise rather than exhibit his actual motivating convictions. These are likely to be artificial and therefore bad arguments.

Disguise is an inexcusable form of intellectual dishonesty, which plays into the hands of people who don’t believe in the power of human reason applied to facts. It has enormous human costs as well. David Zlotnick wrote an article titled Battered Women and Justice Scalia. 41 Ariz. L. Rev. 847, (1999). He tells the story of Ana Cruz, a woman in an abusive marriage, who obtained a judicial protection order against her husband, Michael Foster. Foster continued to assault her, eventually pushing her down a flight of stairs, kicking and beating her until she was unconscious. Ana’s attorney moved to have Foster held in contempt, and eventually Michael was sentenced to 150 days on four counts. Eighteen months later, Michael was indicted on several counts of felony assault and other charges. He claimed that this put him in double jeopardy because of the prior confinement for contempt. The case eventually wound up in the Supreme Court.

Zlotnick explains Scalia’s opinion as a contorted effort to apply his constitutional methodology to a case that doesn’t fit. He describes the outcome:

As a result, battered women now run the risk that the swifter but less severe penalties for contempt–often necessary to protect their safety–may later bar more serious criminal charges by the state.

Zlotnick thinks that the outcome is in part the result of Scalia’s “hostility to judicial power.” To me, Scalia seems perfectly happy to use his power to achieve his political ends, but you don’t have to agree with Zlotnick to see that Scalia is utterly indifferent to the facts of case, and the reality faced by women and prosecutors in similar settings, which is the basis for any kind of principled judicial decision.

Scalia insists that the role of the judge in interpreting a statute is simply to apply the words as written, which is supposed to be a neutral act, not an exercise of judicial power. Here is an example of that. My client was the custodian for her child under the Uniform Gifts to Minors Act for a CD in the amount of $10,000. She owed money to the bank that issued the CD. The bank demanded additional collateral for the loan, but she had none. So, the bank told her to pledge the child’s CD. Eventually, the bank seized the CD.

I filed suit to get it back. We argued that the CD belonged to the child. The only interest my client had was the legal title, and she had no right to the money for her personal needs. The bank argued that under the Uniform Act For Simplification Of Fiduciary Security Transfers, the bank had no duty to inquire into whether my client had the right to transfer the ownership of the money. The court agreed, saying that it had to read the statute as written, word for word. The statute says that the bank has no duty to inquire unless the plaintiff shows that the bank had actual knowledge that the money was to be used wrongfully for the benefit of the fiduciary. As I write this, I see that I still don’t understand how I lost. This reading makes no sense, unless you are Antonin Scalia, reading word for word.

I dedicate the video clip to Scalia, who is an opera fan. Don Giovanni murdered the Commedatore in an early scene, and later taunted the statue above his grave, inviting him to dinner. The statue accepts the invitation.