From Scalia to Obama, What Rule of Law?

By Steve Weissman, Reader Supported News

22 February 16

 

or almost 30 years, Justice Antonin ‘Nino’ Scalia was a larger-than-life presence on the bench – a brilliant legal mind with an energetic style, incisive wit, and colorful opinions,” declared President Barack Obama. “Justice Scalia dedicated his life to the cornerstone of our democracy: The rule of law.”

High praise indeed – and completely bogus, especially from a commander-in-chief who acts as judge, jury, and (by proxy) executioner for drone targets around the world, and a POTUS who refused to bring criminal indictments against the Wall Street bankers who created the global economic crash in 2008.

Rule of law? Would you like me to sell you a nice bridge in Brooklyn?

In significant sections of our political economy, the rule of law operates as it should, allowing people to know what the rules are and to see them fairly enforced. But, like the myth of free markets, paeans to the rule of law – sincere, self-serving, or ceremonial – too often mask the naked exercise of power. They also trash the once-sacrosanct ideal that no one – rich or poor, black or white, government official or private citizen – stands above the law.

Even before Ronald Reagan named him a federal judge and then Supreme Court justice, Antonin Scalia added dramatically to this legal hocus pocus when, in 1982, conservative and libertarian law students at Harvard, Yale, and the University of Chicago created the Federalist Society. Scalia served as one of the faculty advisors, along with his friend and long-time colleague Robert Bork.

The right-wing activists opposed liberal judicial approaches that had enlarged the federal government, reduced states' rights, and created “privacy rights” that the Constitution had never explicitly sanctioned. They hated legalized abortion and federal intervention to protect African-Americans, and they favored “traditional values,” unfettered campaign contributions, and an unrestrained right to bear arms. Presenting themselves as “strict constructionists” defending the true meaning of the Constitution, the Federalists framed their fight as a response to “judicial activism.” They insisted that the judiciary “say what the law is, not what it should be.”

Increasingly persuasive as American voters swung to the right, these arguments helped the Federalists become the country’s single most influential group of legal intellectuals. They essentially follow two overlapping schools of thought – or claim to. On the Constitution and its amendments, they base their decisions, they say, on the original intent of the framers and subsequent authors. The appeal is obvious. The Federalists appear to offer an objective way to make Constitutional decisions, which they contrast to the unavoidably subjective judgments of liberal judges and justices seeking to adapt what they call “a living Constitution” to situations that James Madison and John Adams could never have conceived of.

“It’s not a living document,” Scalia insisted. “It’s dead, dead, dead.”

Well, not quite. Take a look at Scalia’s classic 2011 interview in the California Lawyer. “In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation,” said the interviewer. “So does that mean that we've gone off in error by applying the 14th Amendment to both?”

“Yes, yes. Sorry, to tell you that,” replied the effervescent Scalia. “Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”

Scalia appeared to be offering a principled and unfailingly democratic defense of Originalism. How then could he have joined in the majority decision in Bush v. Gore, which cited the 14th Amendment’s Equal Protection Clause to override the voters of Florida and make George W. Bush president?

In 2011, journalist Robert Parry pointedly answered the question. He called Scalia a hypocrite. It’s difficult to disagree. But “Originalism” has hypocrisy built-in. Too often, neither historians nor lawyers know what all the different authors of any particular passage intended or how to weigh their differences. It’s largely guesswork and often – though not always – depends on the results a particular judge or justice wants.

“Judges are not competent historians,” explains circuit court judge Richard A. Posner, a Reagan appointee and one of the country’s leading legal authorities. “To put to a judge a question that he cannot answer is to evoke ‘motivated thinking,’ the form of cognitive delusion that consists of credulously accepting the evidence that supports a preconception and of peremptorily rejecting the evidence that contradicts it.”

Others may suggest a more straightforward view of how Scalia interpreted the ineptly drafted Second Amendment: “A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” Did the framers intend the militia clause to restrict the right to keep and bear arms? Or did they want to preserve militias, now the National Guard, and also preserve the ancient English right for individuals to keep and bear arms? One can in all honesty read the text either way, and competent historians have no agreed-upon answer.

Scalia made his subjective preference clear in writing the majority decision in District of Columbia v. Heller, declaring that the Second Amendment guaranteed an individual’s right to possess a firearm for self-defense or any other legal purpose. Liberal law professors, like Laurence Tribe and Sanford Levinson, had reluctantly come to the same conclusion, while two conservative federal judges – Posner and J. Harvie Wilkinson – condemned Scalia’s decision as activist and highly political. This was precisely how he and they saw the liberal creation of privacy rights and legalization of abortion in Roe v. Wade. Leave both gun and abortion rights to the political process, Wilkinson and Posner argued.

A third case makes chopped liver of Scalia’s claim to “say what the law is, not what it should be.” In Citizens United, Scalia joined in the majority decision that the First Amendment guaranteed individuals and corporations the right to unlimited election spending.

University of Colorado law professor Paul Campos found this most instructive. “The men who drafted and ratified the First Amendment would have, it’s safe to say, been shocked out of their wits if someone had told them they were granting the same free speech rights to corporations they were giving to persons,” wrote Campos. “It would be hard to come up with a purer example of treating the Constitution as a ‘living document,’ the meaning of which changes as social circumstances change.”

Campos called Scalia “an intellectual phony.” That, too, would be hard to disagree with. I would only add that among the first to give prominence to the idea that money is speech were those activist liberals at the American Civil Liberties Union (ACLU). Was their reasoning any more objective than Scalia’s? Was it any closer to the rule of law?

Contrary to much that’s been written, Scalia called himself “a faint-hearted Originalist.” Over time he leaned more to “textualism,” which focused narrowly on what specific laws and contracts say – and emphatically not on trying to figure out what the authors intended. This was an even more objective way to make judicial decisions, he insisted. But he was equally ideological about that. His textualism “tilts toward ‘small government’ and away from ‘big government,’ which in modern America is a conservative preference,” wrote Richard Posner in his trenchant critique of Scalia’s “incoherence.”

But Posner goes beyond pillorying Scalia. He tells a needed truth about how his colleagues play the judicial game, liberals as well as conservatives. “Judges like to say that all they do when they interpret a constitutional or statutory provision is apply, to the facts of the particular case, law that has been given to them,” he explained. “They do not make law: that is the job of legislators, and for the authors and ratifiers of constitutions. They are not Apollo; they are his oracle. They are passive interpreters. Their role is semantic.”

Posner does not buy the pretense, not from Scalia or from any other judge or justice, left, right, or center. Neither should anyone else.

“Judges,” he wrote, “tend to deny the creative – the legislative – dimension of judging, important as it is in our system, because they do not want to give the impression that they are competing with legislators, or engaged in anything but the politically unthreatening activity of objective, literal-minded interpretation, using arcane tools of legal analysis.”

Rule of law? No, the rule of lawyers, with undeniable ideological, political, and experiential bias. This honest understanding should govern how the country chooses Scalia’s replacement and all the judges and justices to follow.

---

A veteran of the Berkeley Free Speech Movement and the New Left monthly Ramparts, Steve Weissman lived for many years in London, working as a magazine writer and television producer. He now lives and works in France, where he is researching a new book, "Big Money and the Corporate State: How Global Banks, Corporations, and Speculators Rule and How to Nonviolently Break Their Hold."

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News.