Stephen Maturin

Not to worry, Richard. I spend large chunks of my time being respectful to judges. Rest assured that I'm quite good at it. Justice Scalia will get all the respect (and then some) that his position and his considerable abilities warrant.

Thanks very much for the ideas, folks. I'm getting rather psyched about this event. It's not every day that a Supreme Court justice comes to Toledo, Ohio, and it's quite the big deal for law geeks such as myself.

Toto

Nino has been shooting his mouth off again.

Scalia: Judicial selection has become too political

(emph added)

Too political? As political as Bush v. Gore? And what century does he live in?

Stephen Maturin

A friend of mine attended that shindig a U. Pennsylvania yesterday. According to her, Scalia expressly declined to answer any questions about Newdow v. U.S. Congress. Quite the about-face from that Religious Freedom Day event last month! I guess the propriety of commenting publicly on cases that might reach the Supreme Court depends entirely on the audience. :banghead:

Someone asked Justice Scalia whether Bush v. Gore (both the ruling itself and decision to grant cert in the first place) exemplified his criticisms about the judiciary becoming too politicized. Scalia responded that Gore chose to litigate, so the courts were stuck with resolving the matter. As for the Supreme Court granting cert, Scalia said that the case presented substantial constitutional questions and that there was no real basis for turning it down. (That's open to debate, to say the least. Justice Stevens did a fine job in his dissenting opinion of explaining just how insubstantial the federal questions were.)


He's gotten quite a bit of mileage out of that "scruffy, sandal-wearing" comment, hasn't he? Well, at least he's toned it down a bit. As I recall, the original version referenced "scruffy, sandal-wearing weirdos."

beejay

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.


Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

So the "originalist theory" requires you to stop reading at Amendment VIII?

hezekiah jones

Of course the original scruffy, sandal-wearing, bearded weirdo was you-know-who.

abe smith

Give 'im hell, Stephen! You know what to ask!

Stephen Maturin

Justice Scalia’s appearance at the University of Toledo went off without a hitch on Monday. I’m sorry about the delay in reporting, but things have been insanely busy around here this week.

The audience at the public speech included loads of state and local politicians along with state and federal judges from Ohio, Michigan, Indiana and Kentucky. After a few opening comments from UT law school dean Phil Closius, Ohio Supreme Court Chief Justice Tom Moyer introduced Justice Scalia. Nothing special to report regarding the chief’s introduction; it was the same sort of knob gobbling platitude fest that one always hears at events like this.

First of all, everything you’ve heard about Scalia’s public speaking style is true. He’s articulate, fast on his feet, funny as hell and, to some extent, quite persuasive. He didn’t make me want to run right out and join the Federalist Society, but (much to my own horror) I did catch myself nodding in agreement more than once.

As usual, Justice Scalia’s talk focused on constitutional interpretation in general and textualism in particular. He opened by noting that the Senate confirmed his nomination to the Supreme Court without a single “nay” vote. He contrasted that with the ongoing filibuster of the Estrada nomination and predicted horrific difficulties for the next person nominated to the Supreme Court. Such messes arise, says Justice Scalia, from the notion that the constitution means something beyond what actually it says. Political squabbles over federal court nominees ultimately boil down to whether the nominee thinks the constitution embodies the same unenumerated rights that a particular gaggle of politicians wants the constitution to embody.

Scalia cited the Court’s Eighth Amendment death penalty jurisprudence as an example of the “living constitution” view at work. The prevailing view, as expressed in last year’s case Atkins v. Virginia, is that the Eighth Amendment gets its meaning “from the evolving standards of decency that mark the progress of a maturing society.” Although this touchy-feely view of constitutional adjudication has a lot of appeal, it’s based on the flawed assumption that, in Scalia’s words, “society always matures; it never rots.” Not surprisingly, Justice Scalia disagrees. The framers understood that societies do indeed rot, and for that reason they drafted a constitution and a Bill of Rights that established a “floor,” a basic set of enumerated rights that would always be protected.

He also took issue with “substantive due process,” the idea that some unenumerated rights are so fundamental that they’re protected via the Fourteenth Amendment’s Due Process Clause and can’t be taken away. Who identifies these rights? Why, the judges, of course! By way of example, Scalia cited the abortion decisions and more recent cases in which litigants asked the Court to hold that grandparents have a fundamental right to have contact with their grandchildren and that the terminally ill have a fundamental right to die.

As Scalia sees things, “due process” means nothing more (or less) than “the procedural safeguards enjoyed by an Englishman in 1791.” Due process has no “substantive” component at all.

Justice Scalia said that the above developments are relatively new, having happened within the past fifty years or so. [Conspicuously absent from Scalia’s talk was any reference to or criticism of the 1898 decision Lochner v. New York, a decision the Court repudiated several years later, in which the Court came mighty close to granting the precepts of laissez-faire capitalism absolute substantive due process protection.]

A judge’s job is to apply the constitution as written. Scalia believes that federal judges have no authority to read additional rights into the constitution’s text. Creating additional rights is a matter best left to the political process. You want grandparents to have visitation rights? No problem. Convince your fellow citizens that such a right should exist and get a law passed. You think a certain right is sufficiently important that it should be enshrined in the constitution? No problem. Convince your fellow citizens and have the constitution amended.

Justice Scalia also said that even if proponents of a living constitution were correct in their general approach to how the constitution works, they’re wrong about how to implement that approach. Determining what the “evolving standards of decency that mark the progress of a maturing society” are isn’t lawyer’s work or judge’s work. As Scalia put it, “I have no more capacity for that because of the fact that I’m a good lawyer than does Joe Six-Pack.” Figuring out what a “living constitution” means today would be a job for the people and/or their elected representatives.

Scalia also believes that textualism is the only game in town when it comes to constitutional interpretation. There isn’t any coherent theory opposed to it.

He argued that “textualism v. living constitution” doesn’t equate to “conservative v. liberal.” To prove the point he cited two Supreme Court cases decided on the same day in 1996. In Romer v. Evans, the Court shot down a Colorado referendum that prohibited any state or local government body from granting protected status based on sexual orientation. Scalia quipped that the decision must have been based on the Sexual Preference Clause of the constitution. “The liberals were happy and the conservatives stamped their feet.” In BMW v. Gore, the Court held that a punitive damages award rendered in a state court civil case was unconstitutionally excessive. That ruling, Justice Scalia joked, must have been based on the Excessive Damages Clause. “Conservatives were happy and liberals stamped their feet.” Scalia dissented in both cases, of course, since the constitution does not provide explicit protection for sexual orientation and includes no warrant for scrutinizing the amount of a state court verdict. Had the two decisions gone his way, both liberals and conservatives would have equally honked off, but for different reasons.

The living constitution view not only creates new rights illegitimately but also endangers old ones. Scalia cited a case where a child victim of sexual molestation was allowed to testify in a separate room via closed circuit TV at the criminal trial of the alleged assailant. The Supreme Court approved that procedure, which – as Scalia sees it – violates the enumerated Sixth Amendment right of a criminal defendant to confront his accuser face-to-face.

Justice Scalia acknowledged that textualism “isn’t perfect.” Where the constitution’s text fails to supply a definitive answer, he tends to rely on longevity. If a particular practice has been going on long enough, chances are good that it’s constitutional. [Scalia’s opinion in the in personam jurisdiction case Burnham v. Superior Court is a good if rather dull example.]

Finally, Scalia said that “I’m trying to sell you a dead constitution” and “that’s a tough assignment.” The belief in a living constitution is feels good: “It’s a very comforting thought - is it not? - to believe that the constitution means exactly what you think it ought to mean.” Living constitution judges get to go home feeling great every night because their view of constitutional adjudication lets them do whatever they think is right. By contrast, textualists are sometimes stuck making decisions that they don’t like at all. Justice Scalia cited Texas v. Johnson, a 5-4 decision in which the Court shot down a law imposing criminal sanctions for burning the American flag, as a prime example. “I would have liked nothing better than to put Mr. Johnson in jail,” Scalia said, but what Johnson did qualified as protected speech under the First Amendment. [Scalia managed to refrain from calling Johnson a scruffy, sandal-wearing, bearded weirdo.]

After the obligatory Standing-O, Justice Scalia took a few questions from the audience. Surprisingly enough, there weren’t any Bush v. Gore questions. There were no church-state separations questions either, but Scalia’s answer to one of the questions might have implications for Newdow v. U.S. Congress. Here are a few highlights from the Q&A session:

• Toledo is fairly close to Ann Arbor, Michigan, home of the University of Michigan. In light of the big affirmative action case now pending in the Supreme Court, it came as no surprise that quite a few U. Mich. students came to hear what Justice Scalia had to say. One of those students asked Scalia what he thought the word “equal” means as used in the Declaration of Independence and in the Fourteenth Amendment.

Scalia said that the DoI is irrelevant. Although an important historical document, the DoI does not have the force of law and thus plays no part in determining constitutional issues. [Well, hot diggity damn! In light of that statement, there goddamn jolly well better not be any verbiage in a Scalia-authored opinion in Newdow suggesting that it’s constitutionally proper to have school children recited the Pledge of Allegiance because God is mentioned in the Declaration of Independence!]

As for the Fourteenth Amendment, Justice Scalia seemed to say that “equal” means now what it meant at the time the amendment was adopted. Given the fact that the Fourteenth was passed after the Civil War, it was obviously directed toward remedying race-based discrimination. Many other forms of discrimination were known and well accepted at that time. For example, the very fact that people thought the Nineteenth Amendment necessary to guarantee female suffrage is evidence that Fourteenth Amendment was not designed to remedy gender-based discrimination. [So much for "pure" textualism. Feel free to use this one the next time some right wing nutburger tells you that the ERA wasn’t necessary because the Equal Protection Clause already guarantees women’s rights. ]

• Justice Scalia got closest to coming unglued while responding to a question posed by a member of the NAACP’s U. Mich. chapter. The kid’s question was horribly ill-formed. I think he wanted to ask whether it’s a good idea to interpret the constitution in historical context given the blatant racism that prevailed when it was adopted. However, question came out sounding like a statement that the constitution is bad because it was written by racists. Scalia responded that his authority as a federal judge is limited to applying the constitution as written; he’s bound by what the document says and won’t go beyond what the document says: “If you think it’s totally invalid because it was adopted by old, dead white males, lead a revolution!”

• Judge Judith Lanzinger of our own Ohio Court of Appeals for the Sixth Judicial District asked Justice Scalia to comment on stare decisis. Scalia noted that stare decisis – the doctrine that existing precedents should not be overruled absent compelling reasons – is an exception to any method of constitutional interpretation, including textualism. Scalia noted that as originally drafted the Bill of Rights applied only to the federal government not to the states. Scalia is none too keen on “incorporation,” the doctrine under which specific Bill of Rights provisions have been deemed binding on states by operation of the Fourteenth Amendment. Even so, incorporation has been around long enough and has achieved sufficient general acceptance that it ought to be left alone.

Justice Scalia said that he doesn’t consider himself bound by stare decisis in abortion rights arena. He derided the majority in Planned Parenthood v. Casey for claiming to uphold Roe v. Wade when what they actually did was change the test. He then said that there are no objective standards for applying the Casey test, i.e., deciding whether a particular law imposes an “undue burden” on a woman’s right to choose. Absent any real “rules” to apply, judges have no business making such decisions.

After the speech a bunch of folks headed over to the Toledo Museum of Art for lunch and a meet-and-greet. I’m sad to report that my own contact with Justice Scalia was limited to introductions, a handshake and an exchange of basic pleasantries. After enjoying some conversation with people I rarely get to see anymore and a meal consisting of artsy-fartsy, hoity-toity art gallery food (most of which I couldn’t even identify), it was back to work to finish preparing for a Tuesday morning appellate argument.

The whole event was eminently enjoyable. If you ever get a chance to hear Justice Scalia speak in person, by all means do yourself a favor and go. If you’re one of those foaming-at-the-mouth liberal types like me, you needn’t worry about being converted. My basic perceptions remain intact:

1) The notion that textualism is somehow apolitical, or anything other that result oriented, still strikes me as just plain silly. Textualists become textualists precisely because that approach generates “conservative” results in most cases.

2) Whenever you hear a president say something like, “I want federal judges who will interpret the law as written instead of legislating from the bench,” what he’s really saying is, “I want conservatives.”

3) When you scrape away all the bullshit, there ain’t but two kinds of people in the world: rules people and justice people. Justice Scalia is a rules guy all the way.

Shadowy Man

Interesting, because I didn't see the words "face-to-face" in the text of the Sixth Amendment.

Stephen Maturin

That's cuz they aren't there.

keitht

"3) When you scrape away all the bullshit, there ain’t but two kinds of people in the world: rules people and justice people. Justice Scalia is a rules guy all the way."

What's your definition of "justice"? Who gets to decide if there aren't any rules?

Keith