Was Scalia Spooky?

Antonin Scalia’s views on snooping, in the 1970s and later

The Globe and Mail‘s Sean Fine is as good a reporter as he is a bad analyst. Both of his qualities ― an impressive ability to find and tell a great story, and an unthinking belief in simplistic ideological classification of judges ― are on full display in his latest article, a fascinating story of how Antonin Scalia, then a professor at the University of Chicago, was commissioned to produce a report on “United States Intelligence Law” for the McDonald Commission, which investigated the RCMP’s espionage activities and whose eventual recommendations led to the creation of CSIS. Mr. Fine contrasts “[t]he report’s scrupulously impartial (for the most part) author” with the judge that he would become; the former, sensitive to privacy rights if also keen to ensure that intelligence agencies can operate effectively; the latter, in Mr. Fine’s telling, brazenly unconcerned with them, and condoning “torture in some circumstances”. But things are more complicated than Mr. Fine lets on.

Before I get to that, I’ll note little anecdote that Mr. Fine passes over, perhaps because this is a bit too inside-baseball for the Globe‘s readers. Mr. Fine explains that it was Peter Russel, who was the director of research for the McDonald Commission, who recommended then-professor Scalia’s hiring ― on the advice of Edward Levi (Scalia’s boss as Attorney-General in Gerald Ford’s administration) and Herbert Wechsler (a distinguished scholar, notably of the “neutral principles” fame). What Mr. Fine does not mention is that prof. Russel’s recommendation (a scan of which is included in the article) noted that Levi and Wechsler ranked Scalia ahead of none other than Robert Bork. (Prof. Russell, by the way, seems to have had a bit of an issue with names in that memo, referring to “Anthony” Scalia and “Richard” Bork.) Ironically, the Reagan administration would later rank Scalia and Bork in the same order when it came to making their appointments to the Supreme Court. Scalia was nominated in 1986, and confirmed by the Senate on a 98-0 vote; Bork was nominated in 1987 and rejected by the Senate after hearings so bitter that his name became a verb, in which his views and record were arguably distorted out of all recognition by Ted Kennedy and the latest recipient of the Medal of Freedom.

And, to get back to my point, this is a bit what Mr. Fine tries to do with the late Justice Scalia, albeit on a much smaller scale. He makes a point of noting that prof. Russell

would … later be appalled by the justice’s support of originalism – a judicial philosophy in which constitutional rights do not evolve over time, but stay rooted in the vision of the Founding Fathers of the United States. “Originalism is absolute nonsense”,

he quotes prof. Russell as saying. And he refers repeatedly to a “2007 speech” Scalia gave in Ottawa, in which “he was more the suspicious-of-too-many-legal-protections conservative”.  But Justice Scalia’s originalism was neither “nonsense” nor all bad for the protection of privacy rights against over-curious governments.

Prof. Russell, Mr. Fine, and those who think like them ― admittedly, a large contingent in Canada ― might just learn a thing or two from the expanding scholarship documenting the presence of originalism in Canada, and in some cases advocating the expansion of this presence. This scholarship includes (but is not limited to) recent articles by Sébastien Grammond and J. Gareth Morley focusing on the Supreme Court’s opinions on the appointment of Justice Nadon and Senate reform; an as-yet-unpublished paper by Asher Honickman, on federalism; Kerri Froc’s work on women’s rights; and the pair of articles that Benjamin Oliphant and I wrote last year. The first of these, which should come out any day now in the Queen’s Law Journal, shows that contrary to popular belief, the Supreme Court has not squarely rejected originalism, least of all what is arguably the dominant form of originalism now, one focused on the original meaning of constitutional texts (rather than their framers’ intentions or expectations). The second, due to come out in the UBC Law Review later this year, shows that, in fact, the Supreme Court resorts to originalist reasoning in a surprising variety of cases. If Prof. Russell is right that “originalism is absolute nonsense”, then not only has the Supreme Court never renounced it, but in fact large swathes of its jurisprudence (and of that of the Judicial Committee of the Privy Council), are nonsensical too.

But more directly relevant to my present topic is our discussion, in the first paper, of the contrast between Justice Scalia’s reasons, for a 5-4 majority of the Supreme Court of the United States, in Kyllo v United States, 533 U.S. 27 (2001), and Justice Binnie’s reasons for the unanimous Supreme Court of Canada in R v Tessling, 2004 SCC 67, [2004] 3 SCR 432. As we explain (actually, the credit here goes to Mr. Oliphant):

The issue, in both cases, was whether the use of a thermal imaging device by the police amounted to a “search” within the meaning, respectively, of the Fourth Amendment to the U.S. Constitution and section 8 of the Charter. In Kyllo, Justice Scalia … found that because information about what went on within the home ― however collected ― would have been secure from search and seizure at the time the Fourth Amendment was passed, the state cannot now invade that sphere of privacy through the use of new technology.

Justice Binnie, writing for a unanimous Supreme Court, disagreed… Justice Binnie rejected the relevance of Kyllo on the basis that it was “predicated on the ‘originalism’ philosophy of Scalia J.,” [61] and because it is not “helpful in the Canadian context to compare the state of technology in 2004 with that which existed at Confederation in 1867, or in 1982 when s. 8 of the Charter was adopted.” [62]

Tessling is an odd hill upon which to make a stand against originalism. Kyllo, which the Court in Tessling refused to follow, did not restrict constitutional meaning to those realities foreseen by the framers, as originalism does according to the “frozen rights” or “dead” constitution caricature frequently encountered in the Canadian literature. It did precisely the opposite. … Indeed, it is not clear to us just what Justice Binnie is actually rejecting in refusing to follow the “originalist” philosophy underlying Kyllo, or in stating that it is unhelpful “to compare the state of technology” in 2004 with what which existed in 1982. The logic of Kyllo was to deny that changes in technology can diminish the scope of constitutional protection over time; there was no “comparison” of technologies, because changes in technology were irrelevant to the interpretive question of what was protected. (25-26; a paragraph break and a reference removed)

We conclude that

In the ultimate result, and despite frequent and nebulous assertions that the Charter must be read in a “large,” “liberal,” and “generous,” manner, Justice Scalia’s originalist philosophy unquestionably resulted in a more general and robust protection for personal privacy than Justice Binnie’s “purposive” approach to interpreting section 8 of the Charter. (27)

Of course, this is not to say that Justice Scalia was always right, on privacy issues or on anything else. Indeed, this does not even prove that originalism is the better approach to constitutional interpretation than whatever it is that the Supreme Court of Canada is doing. But both originalism and Justice Scalia’s legacy are more complex than many Canadians, including Mr. Fine, tend to assume. We owe Mr. Fine for telling us a story that shed more light on the late Justice’s oeuvre. It’s too bad he tried to shoehorn that story into a simplistic ideological framework that is as misleading as it is useless.

R.I.P., Antonin Scalia

How I will remember him

I don’t know if Justice Antonin Scalia, of the U.S. Supreme Court, read, or liked, Bulgakov’s The Master and Margarita ― it was, no doubt, much too unorthodox for him, although he would at least have agreed with its insistence that we at least believe that the devil exists. But as Bulgakov’s devil points out, “man is mortal, but that alone would only be half the trouble. What’s bad is that he sometimes is suddenly mortal, there’s the rub!” Justice Scalia himself has proved suddenly mortal, and it is quite a shock.

He was a larger-than-life figure, the sort of person who left no one indifferent, about whom everyone had an opinion ― not infrequently a very bad one. I wrote once that “Justice Scalia is often snarky, but he gets as good as he gives.” And no doubt there will be much criticism in the coming hours and days, as there will also be much praise. For my part, though I have criticized him in the past, I want now to offer praise, even if it is of an anecdotal sort.

Back in 2007, Justice Scalia came to Montreal, to debate his Canadian colleague, Justice Binnie, about the role of a judge in a democracy ― which they both took to mean constitutional interpretation. It was a remarkable debate, though sadly it seems not to be available online anymore (NB: see the update below). Bob Rae, who moderated, remembers it too, as do others who were there, and even some who were not. And, as Emmett Macfarlane has already mentioned, after the debate, Justice Scalia lingered in the room where food and drink were being served ― and spoke to students who quickly surrounded questioned him. I was there, and even got some questions in ― something about constitutional conventions. I was sure, and still am for that matter, that I was right and he was wrong, but he certainly taught me a good lesson that day about debating a judge without being in more-than-full command of all the facts. It’s not a good idea! I wasn’t the worst though. Almost all of the questions that were being asked in that scrum were quite hostile ― George W. Bush was still president, and many were determined to blame Justice Scalia personally for Bush v. Gore. And the thing is, he surely had to know that Canadian students would not take kindly to him ― yet not only did Justice Scalia not try to avoid talking to us, but he spent a good 40 minutes at it, and seemed to rather enjoy the whole business. I must confess, he won me over that evening ― as a person, if not as a jurist.

Of course, he was also often an abrasive man. He could be brutally unkind to his fellow human beings in his opinions, judicial and extra-judicial, as Eddie Clark points out. Still, the image I will retain of him is that of a man who was willing to talk to those who disagreed with him, debate them, and be generous to them. His friend and ideological opposite Justice Ruth Bader Ginsburg might agree with this. At a time when refusing to treat opponents with the least amount of class, and even to talk to them, are often seen as normal, I hope that this memory of Justice Scalia will prove more powerful than the bitterness and divisiveness for which he will also, and alas justly, be remembered.

UPDATE: Mark Mancini, who is manifestly much better than I at searching the CPAC archives, has found the video of the Binnie-Scalia debate. It is here, and you have to click on the right-most link below the box. It is, as he says, well worth watching.

FURTHER UPDATE: Many reactions to the news of Justice Scalia’s death have already been published. There is no point to cataloguing them all, but I will note those by Moin A. Yahya, Michael Dorf, Noah Feldman, and Cass Sunstein, because they all make the same point as I tried to about Antonin Scalia the human being ― that he was generous and happy to talk to people who disagreed with him, including people who were vastly junior to him in years and distinction. (Profs. Feldman and Sunstein also offer very insightful assessments of Justice Scalia the jurist.)

Something about the Zeitgeist

Justice Scalia is often snarky. But he gets as good as he gives. Both tendencies were recently on display, after Justice Scalia apparently asserted that judges interpreting law in accordance with the “spirit of the age” were among the causes of Nazi barbarities, including the Holocaust ― a none too subtle dig at “living constitutionalism” and, perhaps, “judicial activism” of all sorts (whatever judicial activism is). The first reaction of some (myself included) was to think of Goodwin’s law. Others wax sarcastic about “peak Scalia.” Both snark and counter-snark are unjustified.

Start with the snark. Of course, when the spirit of the age is rotten, interpreting law in accordance with it will give foul results. But what about Justice Scalia preferred originalist approach? It will give better results if the law one interprets was written in a more enlightened age than the interpreter’s own; but if a law reflects the prejudice and ignorance of times past, then it is interpreting it in accordance with the spirit of those times that will give us bigoted jurisprudence. If one believes, with Martin Luther King, that the arc of the moral universe bends towards justice, then originalism is, on balance, an unattractive interpretive approach, although this does not exclude the possibility that it will sometimes yield just results, perhaps even more just results than the alternatives.

Yet the dismissive responses to Justice Scalia’s comments are also a bit too quick. It is worth noting that, as Josh Blackman points out, Justice Scalia is not the first to remark on the role of the Nazi judges’ interpretive approach in enabling the crimes of the regime they served. Cass Sunstein has made the same point:

In the Nazi period, German judges rejected formalism. They did not rely on the ordinary or original meaning of legal texts. On the contrary, they thought that statutes should be construed in accordance with the spirit of the age, defined by reference to the
Nazi regime. They thought that courts could carry out their task “only if they do not remain glued to the letter of the law, but rather penetrate its inner core in their interpretations and do their part to see that the aims of the lawmaker are realized.” (1; references omitted.)

Closer to home, Justice Lamer, as he then was, observed in R. v. Collins, [1987] 1 S.C.R. 265, that “[t]he reasonable person is usually the average person in the community, but only when that community’s current mood is reasonable” (emphasis mine). The point Justice Scalia was, I think, trying to make ― in however exaggerated a fashion ― is the same as that at which Justice Lamer was getting in this passage: the “spirit of the age,” the Zeitgeist, can be foul, and when it is, it is the judiciary’s duty to resist it as best it can, to prevent it from contaminating the law.

We can, of course, debate whether originalism is the best, or even an adequate way of doing so. We can say that perpetuating the iniquities of the past is no solution to the injustices of the present. But the idea is not absurd. It deserves discussion, not derision. It’s a shame that the spirit of the age, what with its addiction to soundbites and gotcha lines, appreciates the latter more than the former.

Federalism, Democracy, Same-Sex Marriage

It’s about time I got back to blogging. (Well, it was about time about two weeks ago, but… ) And there is surely no easier way to do so, though there are probably better ones, than to jump on the U.S. Supreme Court’s same-sex marriage cases bandwagon. Especially if one can do so in a self-satisfied way.

As everybody and their dog already know, in United States v. Windsor, the Court declared unconstitutional the misnamed Defense of Marriage Act (DOMA), by which Congress refused to acknowledge the same-sex marriages legally performed or recognized pursuant to laws of States. Dissenting, Justice Scalia wrote that “[t]his case … the power of our people to govern themselves,” (p. 1 of Justice Scalia’s opinion) and that the majority’s decision disregarded and diminished this power to install its own “black-robed supremacy” (3). The many such remarks in Justice Scalia’s opinion prompted the following tweet from Jeremy Waldron:

Now this is very interesting. Prof. Waldron, after all, is a staunch, albeit, unlike Justice Scalia, polite, opponent of “black-robed supremacy” over the will of the people. Indeed, I have argued that his arguments against judicial review of legislation and Justice Scalia’s in favour of limiting judicial review to the enforcement of the original meaning of the constitution are very similar, and that, if anything, “Justice Scalia and his fellow originalists are guilty of failing to follow the logical implications of their own views about the nature of the questions that arise in judicial review. They are, I suspect, fainthearted in that way ― fainthearted Waldronians.”

But prof. Waldron’s tweet points at a complexity that is often missed in debates about democracy and judicial review ― including, unfortunately, in his own work on this subject. These debates tend to focus on rights-based judicial review ― courts deciding the extent of citizens’ rights and of the governments’ ability to limit them. Judicial review is then usually presented, both by its detractors and by its more or less enthusiastic supporters, as a clash between the people’s representatives, between democracy and “black-robed supremacy.” But not all judicial review is of that sort.

In federations, judicial review can be based not (only) on rights, but also on the distribution of powers between federal and regional legislatures. The question such cases raise is not (only) whether a legislature had the power to enact the challenged law, but which legislature (if any) had that power. Such cases are not simply clashes between the will of the people and that of judges. They involve competition between the will of the people of the nation and that of a State, province, Land, etc., arbitrated by judges. To describe such cases as being only about judicial and popular or legislative supremacy is to miss this clash of two popular wills.

As Porf. Waldron points out, Justice Scalia’s vituperations neglect the fact that DOMA was enacted to override (or, at the time, to prevent the expression of) the will state citizenries that wanted or felt bound to recognize the equal validity of same-sex marriages. It was democratically enacted by representatives of a people, to be sure, but it was also, as Prof. Waldron puts it,” a usurping insult to democracy.”

It is, then, unsurprising that federalism was a key element of the Windsor majority’s reasoning, as Rick Pildes, Ilya Somin, and Randy Barnett, among others, explain. Windsor, I think, is a great illustration of why federalism-based judicial review is justified whatever one thinks of the philosophical problems afflicting its rights-based cousin ― it protects democracy from insulting usurpation. I know that prof. Waldron was not persuaded when I put an extended version of the foregoing argument to him in a version of this paper, originally written for a class that he co-taught (and which has since benefited from his always thoughtful comments). Now I wonder if he is on the way to changing his mind. If he is not yet, he should be.

The Faint of Heart

Justice Scalia of the Supreme Court of the United States famously admits to being a “fainthearted” originalist, who would hold that the punishment of flogging is “cruel and unusual” and thus prohibited by the Eighth Amendment to the U.S. Constitution, even though, at the time of its ratification, the Amendment was not generally understood to prohibit this punishment. But it occurred to me, when I re-watched Justice Scalia’s impassioned and entertaining defence of originalism in a debate with then-Justice Binnie at a conference a few years ago, that he, and originalists generally, are fainthearted in another, much broader way.

Justice Scalia’s argument for originalism goes something like this. Even if there are right and wrong answers to questions about morality of the sort that arise in judicial review of legislation, questions about the permissibility of abortion or the death penalty, for example, or the extent of the freedom of speech, or of the right to privacy (and he thinks that there are indeed right and wrong answers to such questions, dictated by natural law), we have no satisfactory way of demonstrating that any given answer to such a question is right. Therefore, we cannot pretend that the answers that we give to such questions aren’t political, so that impartial experts can figure them out. There are no “moral experts” who can do that job. In particular, we have no reason to believe that judges are endowed with moral expertise greater than that of “the fabled Joe Sixpack.” They disguise their moral reasoning behind legal forms, but the law doesn’t really give answers to these fraught questions. The only way we have to resolve them is by figuring out what the people think about them, through the political process. So when the people have, through the political process of ratifying a constitution, resolved the question of what rights should be protected against legislative abridgement, judges, entrusted with the enforcement of that protection, should stick to what the people have resolved and go always so far but never further. Because they are not moral experts, judges cannot revise―either upwards or downwards―the protections that the people have granted, which are the people’s own answers to moral questions facing the community.

The first part of this argument is very familiar indeed―from the work of Jeremy Waldron. In “The Core of the Case against Judicial Review,” prof. Waldron too argues that we have no agreed way to determine which answers to difficult questions of political morality are right and which are wrong; that judges, in particular, possess no expertise in these matters; that they do more harm than good in trying or pretending to deal with these questions as if they were legal rather than political; and that rather than trust the judges with moral reasoning, we should let the people, or better their elected representatives, decide.

Prof. Waldron and Justice Scalia part ways in the conclusions they draw from this. Whereas Justice Scalia accepts judicial review of legislation as a given and argues that the consequences of the judges’ lack of moral expertise lie in the realm of interpretive methodology, prof. Waldron takes the position that judicial review itself is the problem and should be abandoned. Since judges know no better than the people what “the truth about rights” is, they have no business second-guessing the people’s conclusions about this matter―not just the conclusions the people reached once upon a time, when they ratified a constitution, but at any given time, whenever they enact a piece of legislation.

I think that, as between these two views, prof. Waldron’s is the more persuasive one. If there is no way to demonstrate that one has “the truth about rights” in one’s possession, then what justifies the people in deciding that they are in fact possessed of that truth and making it impossible for later generations to revise it by majority vote? If we can only answer moral questions through the political process, how is it just to then remove the answers we give to these questions from that process?

And so, I have the impression that Justice Scalia and his fellow originalists are guilty of failing to follow the logical implications of their own views about the nature of the questions that arise in judicial review. They are, I suspect, fainthearted in that way―fainthearted Waldronians.

All this is not to say that the originalist/Waldronian view of the nature of judicial review―the view that it requires answering distinctly moral questions on which the law doesn’t have special insight―is correct. But it is at least plausible, and should not be dismissed lightly. All the more important, then, to be clear about its implications.