[Please welcome Prof. Peter Edelman of the Georgetown Law Center for today’s edition of our First Monday series, in conjunction with Alliance for Justice. As always, please stay on topic and be polite, and take any off-topic discussion to the prior thread. thanks! — CHS]
This chat was billed by my friends at the Alliance for Justice as an analysis of Justice Scalia’s recent public commentary, along with some comments about the balance of the current Supreme Court. I’m more interested in the latter than I am in talking about Justice Scalia in particular, and I’m especially interested in a conversation about what we can do to avert further deterioration in the direction the Court is taking.
Justice Scalia is a brilliant, somewhat charming, self-styledly prickly, apparently nice-to-his-friends-and-family man. Some people find all of this interesting. It’s not. The main point about Justice Scalia is that he is an almost-down-the-line conservative verging-on-radical judge who is one vote away from being one among five of the most powerful people (as a bloc) in America.
He writes beautifully, tossing off sarcastic and acerbic bon mots that, rather ironically, tend to distract from his mission to rewrite large parts of the Constitution as its meaning has developed over the past 200-plus years. We need to keep our eyes on his mission.
Justice Scalia purports to be on an archeological expedition – perhaps more precisely, he purports to have concluded his dig and to have found out what the framers of the Constitution intended. His “discoveries” divide roughly into two parts – purported knowledge about the original intent behind the parts of the Constitution where there are words that cover such matters as speech and religion, and purported knowledge, again derived from original intent, about matters where the Court has found constitutional protection for rights that are not “enumerated,” as the jargon goes. As things have evolved, most of these so-called unenumerated rights have found a textual home in the word “liberty” in the Fifth and Fourteenth Amendments. Justice Scalia thinks almost all of that is hogwash.
Justice Scalia tells interviewers that because he’s really a sweetie-pie moderate he wouldn’t go back and overrule all of the erroneous decisions that dozens of his misguided forbears put into the United States Reports. Unlike his truly radical brother, Justice Clarence Thomas, he’s only after some of the really bad ones, like Roe v. Wade. And of course he’s not above inventing new rights when it suits him, as he did in Bush v. Gore.
One has to skirt over a lot of messy stuff to be such a stout-hearted originalist. Whose intent, for example? The writers? Do we know what they each had in mind? Justice Scalia has excoriated those who think they can find meaning in statutory words by divining the purposes of those who did the legislating. His view about the Constitution seems at odds with that. How about the voters in each state – the people whose votes ratified the Constitution? Does he know what they had in mind? Apparently, although it may differ from state to state, and is perhaps different from what was on the minds of the drafters.
And even at the time, there were people – Chief Justice John Marshall is the outstanding example – who said this was to be a document for the ages. Never forget that this is a Constitution we are expounding, we were enjoined.
Think about the words “equal protection.” Meant to cover women. Funny how we didn’t discover that was true until the 1960s. Well, he might reply, plain meaning. Okay. How about why “equal protection,” which was meant to protect African-Americans, turns out to ban legally mandated segregation of children in schools, when there was a widespread understanding at the time of the 14th Amendment’s ratification that school segregation was acceptable. What’s the original intent? Specific or general? You’d have to say it was general, in order to conclude that the Court could decide Brown as it did without amending the Constitution. Writing on a different aspect of the 14th Amendment, Justice Scalia has insisted that the level of protection accorded by the constitutional language must be at the “most specific level at which a relevant tradition . . . can be identified.”
Oh well, consistency is for little minds. (more…)