Justice Scalia

Rhetoric and the Rule of Law

Brian G. Slocum,Francis J. Mootz III

• Publisher: University of Chicago Press
• Year: 2019
• ISBN:
  9780226601793
• Topic: Droit
• Subtopic: Théorie et pratique du droit

Justice Antonin Scalia (1936–2016) was the single most important figure in the emergence of the "new originalist" interpretation of the US Constitution, which sought to anchor the court's interpretation of the Constitution to the ordinary meaning of the words at the time of drafting. For Scalia, the meaning of constitutional provisions and statutes was rigidly fixed by their original meanings with little concern for extratextual considerations. While some lauded his uncompromising principles, others argued that such a rigid view of the Constitution both denies and attempts to limit the discretion of judges in ways that damage and distort our system of law.In this edited collection, leading scholars from law, political science, philosophy, rhetoric, and linguistics look at the ways Scalia framed and stated his arguments. Focusing on rhetorical strategies rather than the logic or validity of Scalia's legal arguments, the contributors collectively reveal that Scalia enacted his rigidly conservative vision of the law through his rhetorical framing.

Part 1

The Rhetoric of Constitutional Adjudication

1

Scalia as Procrustes for the Majority, Scalia as Cassandra in Dissent

Mary Anne Case

The late U.S. Supreme Court Justice Antonin Scalia was infamous for the prose style of his dissenting opinions, frequently described with adjectives such as “vitriolic,” “derisive,” and, putting it mildly, “colorful.” In a single, not unrepresentative, dissent—that in the Affordable Care Act (Obamacare) case of King v. Burwell—Scalia characterized the majority opinion, written by Chief Justice John Roberts, as “quite absurd,”1 “with no semblance of shame,” “feeble,” full of “interpretive jiggery-pokery,” and “pure applesauce.”2 His description of opinions written by more liberal and more junior justices could be even more intemperate.3

In this essay, I want to focus on another, less frequently remarked upon quality of Scalia’s dissents, which is their tendency to warn prophetically of the consequences that would follow from the logic of the decision just taken or the rule just articulated by a majority of his fellow justices, consequences denied or ignored at the time by the majority. In these dissents, Scalia behaves somewhat like the Trojan princess Cassandra, whose gift of prophecy came with the curse that she would not be believed, and whose clear-eyed warnings as a consequence went unheeded until the time when what they predicted came to pass. Like Cassandra, Scalia is on the losing side of many of his prophecies—what he is predicting is the exact opposite of what he wants to see happen. Every battle, however, is necessarily both “lost and won,”4 so that what is bad news for the Trojans is good news for the Greeks, and what Scalia sees as the catastrophic consequences of a decision are most welcome from the perspective of his ideological opponents. In describing what for him are the horrors that will follow from the majority’s logic, he often paints a prophetic picture which in time comes true, perhaps in part because of rather than in spite of his dramatic articulation of an opinion’s implications.

The essay then uses another Greek myth, that of Procrustes, to shed light on a tendency in Scalia’s majority opinions. Just as Procrustes forced his guests to fit snugly into an iron bed, stretching out their bodies or chopping off their limbs as necessary, so Scalia frequently forced all prior doctrine in a given area of law into the shape he needed for the new rule he announces in a majority opinion. As with Procrustes’s unfortunate guests, so with Scalia’s procrustean majority opinions: the result, I shall argue, is often that the operation is a success, but the patient dies. Subsequent decisions, whether by courts or legislatures, tend to back away from the implications of the categorical rule Scalia had gone through such pains to fashion. The paradoxical result is that Scalia as Cassandra dissenting has sometimes been more effective in illuminating the path to results he deplores than Scalia as Procrustes has been in bringing about results he favors. This is so notwithstanding that Scalia in procrustean mode does his rhetorical best to minimize the innovative or controversial character of his holding for the majority, whereas Scalia in dissent seeks rhetorically to maximize the unprecedented and revolutionary character of the majority position to which he objects.

The Cassandra of Gay Rights

The clearest example of Scalia as Cassandra is in the progression of the U.S. Supreme Court’s gay rights cases from Romer v. Evans through Obergefell v. Hodges,5 and I use these to illustrate the phenomenon.6 In Romer, the Supreme Court struck down an amendment to the Colorado constitution that disadvantaged gays, lesbians, and bisexuals, without so much as mentioning its own prior precedent of Bowers v. Hardwick,7 which had upheld criminal penalties for homosexual sex. For Scalia, this was a “contradict[ion]” because “[i]f the Court [in Bowers] was unwilling to object to state laws that criminalize the behavior that defines the class, it is hardly open . . . to conclude that state sponsored discrimination against the class is invidious. After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal.’”8 Although there were good reasons for the Court to see Colorado’s Amendment 2 as constitutionally problematic, even with respect to a class whose behavior could be criminalized,9 within a decade the Court, in Lawrence v. Texas,10 agreed with Scalia that the “foundations of Bowers have sustained serious erosion from . . . Romer,”11 and the decision should be overruled. While it held in Lawrence that private, consensual, adult homosexual sex could no longer constitutionally be criminalized, the Court insisted its decision “[did] not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”12 Scalia’s responded in dissent:

Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” . . . Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.13

He was proven right by degrees. In United States v. Windsor, the Court struck down the federal Defense of Marriage Act (DOMA), holding that the federal government could not constitutionally withhold recognition from those same-sex marriages recognized under state law, but ending by insisting, “This opinion and its holding are confined to those lawful marriages.”14 Scalia responded,

I have heard such “bald, unreasoned disclaimer[s]” before. Lawrence, 539 U.S. at 604. When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” . . . Now we are told that DOMA is invalid because it “demeans the couple, whose moral and sexual choices the Constitution protects,” . . .—with an accompanying citation of Lawrence. It takes real cheek for today’s majority to assure us . . . that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here.15

Scalia did acknowledge that the “scatter-shot rationales” of the majority opinion left many bases for distinguishing the right upheld in Windsor from a more general federal constitutional right to marriage for same-sex couples and urged lower courts to “take the Court at its word and distinguish away.”16 But, unlike Chief Justice Roberts, who devoted a substantial portion of his own dissent to shoring up those possible distinctions,17 Scalia went on to dismantle them. In Lawrence, he had already engaged in some suggested editing of the language of Justice O’Connor’s concurring opinion, to show how easily an argument about the criminalization of sodomy could be transformed into one concerning the recognition of same-sex marriage.18 In his Windsor dissent, Scalia goes so far as to use the strikeout function to show how easily whole paragraphs of the majority’s opinion could be edited to form part of an opinion constitutionalizing a nationwide right to same-sex marriage. For example,

Consider how easy (inevitable) it is to make the following substitutions in a passage from today’s opinion . . . :

“DOMA’s This state law’s principal effect is to identify a subset of state-sanctioned marriages constitutionally protected sexual relationships, see Lawrence, and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA this state law contrives to deprive some couples married under the laws of their State enjoying constitutionally protected sexual relationships, but not other couples, of both rights and responsibilities.”

Similarly transposable passages—deliberately transposable, I think—abound.19

Lower-court judges were quick to take up Scalia’s editorial suggestions20 and more generally to adopt the view propounded in his dissent as to the logical inevitability of an extension of the holding of Windsor to state marriage laws,21 leading one scholar to suggest that Scalia’s Windsor dissent paradoxically “might be remembered as the most influential opinion of his career.”22 Indeed, nearly half of the many lower-court decisions that struck down state same-sex marriage bans in the immediate aftermath of Windsor explicitly cited Scalia’s dissent and treated its reasoning as more persuasive than the qualifying language of the majority or of Roberts’s dissent. Within two years, the Supreme Court proved Scalia’s prophecies true, holding in Obergefell that the constitution did indeed require states “to license same-sex marriages [and] to recognize same-sex marriages performed out of State,”23 for the reason that he predicted: to wit, that “[i]t demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society.”24

Scalia’s comparatively dispassionate elaborations of the worrisome implications he sees in majority opinions such as those in the gay rights cases have had a much better track record in moving the Court in a direction he deplores than any of his more vitriolic dissents have had in moving the Court in a direction he favors. One might ask why Scalia engaged in this apparently perverse behavior—repeatedly drawing a road map to precisely the destination he does not want his colleagues on the Court to reach. Many have similarly asked why Scalia over time did not tone down, but only ratcheted up the level of invective in his dissents,25 despite evidence it had never persuaded but may rather have alienated his colleagues.26 Here again, he resembles Cassandra, a prophet possessed, lacking full control of either the substance or the tone of utterances, but impelled to speak truth regardless of its consequences.

Formulating Categorical Rules While Leaving No Case Behind

Whether they are passionate raging or more dispassionate prediction, Scalia’s dissents may have more lasting influence than his majority opinions. As longtime Court watcher Linda Greenhouse observed, even on those occasions when he did have the opportunity to “come close to achieving one of his jurisprudential goals, his colleagues have either hung back at the last minute or, feeling buyers’ remorse, retreated at the next opportunity.”27 The two principal examples Greenhouse discusses are the Court’s backing down from the proposition, articulated in Scalia’s majority opinion in Lucas v. South Carolina Coastal Council,28 that even temporary restrictions on a land owner’s right to develop property can amount to a taking for which the owner is entitled to compensation, and its similar retreat from his expansive interpretation of the Confrontation Clause in Crawford v. Washington.29 Associated with the buyers’ remorse in each of these cases may be precisely what Scalia himself was likely most proud of in each of them—that he used his majority opinion not simply to decide the particular case but to formulate a new categorical rule for a whole line of cases, together with newly formulated categorical exceptions to this rule.30

Indeed, what distinguishes Scalia as a writer of majority opinions, I would argue, is less his adherence to interpretive approaches such as originalism or textualism, and more his commitment to “the rule of law as a law of rules,”31 and his consequent aversion to the use of case-by-case adjudication or multifactor balancing tests in constitutional law.32 As he explained, “When one is dealing, as my Court often is, with issues so heartfelt that they are believed by one side or the other to be resolved by the Constitution itself, it does not greatly appeal to one’s sense of justice to say: ‘Well, that earlier case had nine factors, this one has nine plus one.’ Much better, even at the expense of the mild substantive distortion that any generalization introduces, to have a clear, previously enunciated rule that one can point to in explanation of the decision.”33 His willingness to tolerate an error, even injustice, in an individual case in the interests of enunciating and abiding by clear rules34 even led him so far as to suggest that the actual innocence of a criminal defendant under sentence of death might by itself be an insufficient basis for a court to reopen his case.35 This puts him squarely at one extreme of the arc of a pendulum that has swung for a millennium in Anglo-American law between rules and standards, law and equity, the forms of action and the Chancellor’s foot.36 Far from seeing the charge of formalism as a criticism, Scalia exclaimed, “Long live formalism. It is what makes a government a government of laws and not of men.”37

For Scalia, textualism facilitated formalism, and he was quick to point out that “[e]very issue of law [he] resolved as a federal judge is an interpretation of text—the text of a regulation, or of a statute, or of the Constitution.”38 He therefore inveighed against carrying over into the judicial interpretation of legislative texts, including constitutions, “the attitude of the common-law judge—the mindset that asks, ‘What is the most desirable resolution of this case, and how can any impediments to the achievement of that result be evaded?’”39

For what he saw as the regrettable persistence of this common-law mindset, Scalia blamed, in the first instance, American legal education, which continued to inculcate in law students an “image of the great judge” as

the man (or woman) who has the intelligence to know what is the best rule of law to govern the case at hand, and then the skill to perform the broken-field running through earlier cases that leaves him free to impose that rule—distinguishing one prior case on his left, straight-arming another one on his right, high-stepping away from another precedent about to...