A Matter of Attitude More Than Ideology

IMG_0838The death of Justice Antonin Scalia on February 13th removed an outsized personality and committed conservative from the Supreme Court. Regardless of one’s opinion about his judicial philosophy, there can be no doubt that Scalia had a tremendous presence on the Court, in writing as well as on the bench. Not surprisingly, much of the immediate commentary on Scalia’s passing focused on the past and the future. Discussing the former, many reflected on Scalia’s legal legacy and reminisced about his personal touch on their lives. Considering the latter, others (including certain members of the United States Senate) have rushed to assess the coming nomination fight for its political implications and potential for President Obama to reshape the Court. But let’s take a moment also to consider the present, a present where eight current justices must set aside their current quarrels and decide what kind of place their Court will now be. This question is important not only for the legal questions now pending—where the Court faces a potentially crippling series of 4 to 4 affirmances without precedential effect (or perhaps the prospect of a host of re-arguments)—but also for resolving the ongoing battle among the justices over the Court’s institutional temperament.

Make no mistake, prior to Scalia’s sudden death there was indeed a battle raging within the walls of One First Street, NE over how the Court presents itself to the public. In contrast to the usual coverage of the left versus right, five to four divisions plaguing the Court’s most controversial cases, this one has played out within the so-called conservative bloc. Chief Justice John Roberts and Scalia, so often aligned on issued opinions, have quite clearly diverged in the role and rhetoric of their court. It remains an open question whether Scalia’s legacy on attitude, more than ideology, will be a lasting one.

While the intensity and implications of the Roberts-Scalia division have markedly increased in recent years, its roots took hold a decade ago at the beginning of the Court’s current era. In 2007, at the outset of his tenure as the nation’s seventeenth chief justice, Roberts laid out his philosophy for how the Supreme Court should conduct itself, in a wide-ranging interview with The Atlantic’s Jeffrey Rosen. In that article, Rosen wrote that “Roberts suggested that the temperament of a chief justice can be as important as judicial philosophy in determining his success or failure.” The article also detailed the new Chief Justice’s goals to increase unanimity both by issuing more 9-0 opinions and by decreasing the number of separate concurring and dissenting opinions. “I think that every justice should be worried about the Court acting as a Court and functioning as a Court,” Roberts said at the time, “and they should all be worried, when they’re writing separately, about the effect on the Court as an institution.”

Scalia, ever the iconoclast and ideologue, did not see the Court’s role in quite the same way. The same year Roberts spoke to The Atlantic, Scalia, along with Justices Kennedy and Thomas, refused to sign on to the lead opinion penned by Roberts in a campaign finance case even though they agreed with the ultimate outcome. At issue in Federal Election Commission v. Wisconsin Right to Life, Inc. were the same campaign finance reform provisions of the 2002 Bipartisan Campaign Reform Act or “BCRA” (better known as “McCain-Feingold” after the two senators who championed its passage) that were upheld in a 2003 Supreme Court case but ultimately struck down in the infamous 2010 Citizens United decision. Roberts, writing only for himself and Justice Alito, found that BCRA’s prohibitions on campaign communications by outside groups were overbroad as applied to the anti-abortion group then before the Court. Despite the broad implications of that conclusion, and the fact that this outcome appeared utterly inconsistent with the 2003 case, Roberts chose not to take the momentous and divisive step of overruling that earlier decision. Justice Scalia thought that rather than preserve the Court’s integrity, this decisional pretzel perverted it. Scalia insisted that to gut a decision silently instead of explicitly overruling it did great damage in its own right. In a much-noticed footnote, Scalia wrote: “This faux judicial restraint is judicial obfuscation.”

For the most part, commentators have thought Scalia to have the better of the argument. Although law professors and the press may dislike or even abhor the Supreme Court’s rightward turn, they seemed to think that at least Scalia would do openly and honestly what Roberts was otherwise achieving slowly and secretively. That is, Roberts versus Scalia was a distinction without a difference­; at least Scalia had the integrity to admit what he was doing.

This view was rather short-sighted at the time, and the developments since at least 2012 demonstrated how consequential these differing views on judicial attitude could be. That year’s term, of course, saw the Court uphold the constitutionality of the Affordable Care Act (ACA), better known as “Obamacare.” In that case, Roberts famously switched his vote to upholding nearly all of the ACA’s provisions (the one exception being the Medicaid opt-in mechanism). According to Jeffrey Toobin’s book The Oath, “Scalia’s view of the justices as gladiators against the president unnerved Roberts.” Based on interviews with the justices and their law clerks, Toobin argued that Obama’s ascension had turned Scalia from conservative scholar into a “right-wing crank.” While many liberal commentators insisted upon looking a gift horse in the mouth with regard to Roberts’s ACA opinion—concluding that Roberts’s vote to preserve a signature Democratic achievement was a cover for his reactionary discourse outlining significant new limitations on the federal government’s power to regulate economic activity—the truth was that Roberts in fact courageously put the Court’s reputation above the mud pit of politics.

Roberts is a conservative, and so no one should be surprised when he rules conservatively. It is not enough to challenge his integrity to say that he has often ruled as one would expect. Certainly he has had a hand in many opinions that have startlingly poor insight and horrific ramifications. That doesn’t change the fact that he shows a keen awareness of, and respect for, the role of the Court in society and our government. An obstructed worldview alone does not make a hack. And starting with the ACA decision, and continuing more strongly with each passing term, Roberts—while ruling conservatively—has nonetheless countered what can only be seen as the unprecedented, nakedly political writings of Justice Scalia.

In fact, just a day before the ACA decision, Scalia presaged his discourteous dissent in that case by angrily reading from his dissenting opinion in Arizona v. United States, a review of Arizona’s controversial immigration provisions. Arizona’s legal issue was not nearly as sexy as the underlying policy dispute—it concerned whether the federal government’s immigration laws had “preempted” state law in the areas Arizona attempted to regulate (where a federal law expressly contradicts a state law or intends to occupy a particular field of law that a state provision intrudes upon, the federal law supersedes the state law under the Constitution’s Supremacy Clause). The outcome was a compromise; Justice Anthony Kennedy, in an opinion joined by the Chief Justice as well as liberal Justice Ruth Bader Ginsburg, upheld some provisions while striking down others. Scalia, however, was not placated. Incredibly, Scalia’s dissent decried President Obama’s refusal to enforce the nation’s immigration laws and lambasted his decision to exempt so-called DREAMers from deportation. Notably, the latter of these decisions was made after the case was argued and had absolutely nothing to do with the facts or law at issue. Scalia’s attack on the president prompted outrage and condemnation from respected lawyers across the political spectrum. Conservative judge and scholar Richard Posner noted that Scalia’s assertions were factually unsupported. Law Professor Gabriel J. Chin opined that “[t]he whole thing was intemperate, a screed.”

Scalia’s impolitic behavior accelerated in subsequent years. King v. Burwell, the 2015 case disposing of the latest challenge to the ACA, particularly stands out. That case originated from legally dubious roots. Due to an unclear bit of drafting, the law created subsidies for lower income Americans for those receiving insurance through a healthcare exchange “established by the state.” Yet, the provision creating the state exchanges also provided for the federal government to operate the exchange in a state that declined to do so itself. The plaintiff-challengers argued, therefore, that subsidies could only flow to persons living in states that operated their own exchanges, not those in states with federal exchanges. This reading of the statute would eliminate subsidies for hundreds of thousands of people and risk sending the law into a death spiral caused by a shallow risk pool. It also rested on the assumption that Congress would imbed a mechanism of destruction within the law’s own text, without any basis, reason, or logic for doing so (especially given the unwillingness of Republican governors to establish state exchanges).

Roberts, once again writing the majority opinion to uphold parts of the law, made short work of these arguments and endorsed a fundamental truth about “Obamacare” that congressional Republicans had long denied. “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” he wrote. “If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.” Scalia, however, did not agree, drafting the dissenting opinion on behalf of the three-justice minority. What was so remarkable about Scalia’s participation in this weak challenge to the ACA, however, was that doing so repudiated the core principles of statutory interpretation on which he had staked his reputation and legacy. Perhaps Scalia’s largest contribution—certainly his greatest triumph—in his twenty-nine years on the Court was in focusing the interpretation of statutes on the meaning and context of the text alone and banishing all else to the dustbins of legislative history. Of critical import to this “textualist” approach to construction is the idea that a statute must be interpreted in the context of the law as a whole. Yet here he was, awkwardly elevating four ambiguous words in a 2,000-page act over the clear textual intent of its drafters. As Cornell Law Professor Michael Dorf wrote afterwards, Scalia’s dissent in King “degrade[d]” his textualist reputation. Much was made of Scalia’s imaginative turns of phrase in referring to the Court’s “interpretative jiggery pokery.” But that kind of stylistic flourish is neither new for Scalia nor without precedent among other justices. What was new and troubling was his suggestion that “[w]e should start calling this law SCOTUScare,” using the acronym for “Supreme Court of the United States” and making a not-so-subtle reference to the Republican epithet for the law. More disturbing, especially for a relatively straightforward case of statutory interpretation, was his foreboding concluding sentence, warning that “the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.”

One day later, Scalia delivered his greatest broadside towards the Court as an institution. In Obergefell v. Hodges, five justices held that state recognition of same-sex marriages was a fundamental right. This decision was based on a series of cases recognizing that sexual autonomy, marriage, and protection for “discrete and insular minorities” were fundamentally protected by the Constitution. In the lead dissent, the Chief Justice pointed his remarks at the process question at the heart of the case—whether the legalization of same-sex marriage was a constitutional issue or a matter best reserved for the democratic process—while attempting to be respectful to the heartfelt importance of the subject to millions of Americans (“If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision”). Scalia, on the other hand, chose to lash out at the legitimacy of the Court itself. He slashed at the majority’s writing as filled with “showy profundities” and “a style that is as pretentious as its content is egotistic.” He ridiculed the justices in the majority themselves, not just their logic, by writing in a footnote: “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began” with the Court’s opening sentence, “I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” Even more shockingly, however, he challenged the very right of the Supreme Court to decide issues of constitutional law:

Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South westerner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis.

This is an indictment not only of the majority opinion but also of the Supreme Court itself. It disrespects the important responsibility of the highest body of the third branch of government to “say what the law is.” Not content to provide his contrary constitutional analysis, Scalia wrote here that regardless of the law, the Supreme Court is without authority to review legislation dealing with the values of the “heartland.”

This disturbing trend was showing no signs of slowing. In December, Justice Scalia posited at oral argument in Fisher v. University of Texas, the never-ending challenge to university policies that consider race as a factor in admissions:

There are those who contend that it does not benefit African Americans to get into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school, where they do well…[M]ost of the black scientists in this country don’t come from schools like the University of Texas…They come from lesser schools where they do not feel they’re being pushed ahead in classes that are too fast for them…I’m just not impressed by the fact that the University of Texas may have fewer [African-Americans]…I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.

Some commentators have defended Scalia as merely raising the scientifically supported concept of “mismatch.” Others have noted (correctly in the abstract) that oral argument is the time for “tough questions” with which a justice may not ultimately agree. But in the context of the case, where the issue presented was whether race-based classifications were ever permissible to encourage integration in the classroom (a question repeatedly answered affirmatively in the past), the subject was irrelevant and the implication ugly. Six months ago, Scalia felt it invalid for a Supreme Court made of coastal elites to interpret the Constitution as protecting a right to same-sex marriage. Now, he was all too willing to substitute his own dubious social science for the considered and strongly held views of college administrators.

Justice Scalia was undoubtedly an imaginative writer and a legal titan. Yet, the appreciation for his caustic language as fearless and unintimidated is profoundly misplaced. It is easy to rush to the extreme. It is far harder to build consensus, move incrementally, and see the larger picture. To be clear, this is not a simple indictment of Scalia’s ideology. Chief Justice Roberts has been equally, if not more, hostile to affirmative action and other benign race-based classifications, for instance. He has not, however, supported these views by suggesting that African-Americans would benefit from a slower-track school. He has taken conservative positions on federal legislative power and individual rights while showing respect for other viewpoints and reaching compromises when necessary. It is precisely this effectiveness that makes the Chief Justice a greater threat to liberal aims than Justice Scalia’s far-right ranting, but also a more responsible protector of an institution and a set of ideals that should be cherished by all.

With Justice Scalia’s death, the Court’s remaining conservatives have an important choice to make, especially if Obama (or a subsequent Democratic president) is able to push a left-leaning nominee through. Will they rush to fill the rhetorical absence of Scalia and celebrate righteous defeats? Or will they follow the lead of their Chief (and the model left by the more liberal justices when they were a minority) to pick their spots and push for the best, achievable outcomes? At a time when all issues are partisan, and when confidence in the Supreme Court is at an all-time low, the result is profoundly important. Supreme Court precedent matters. But so, too, does respect for the rule of law.


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