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First Monday: SCOTUS, The Rule Of Law, And Judging Character

[Please welcome Prof. Peter Edelman of the Georgetown Law Center for today’s edition of our First Monday series, in conjunction with Alliance for Justice. As always, please stay on topic and be polite, and take any off-topic discussion to the prior thread. thanks! — CHS]

This chat was billed by my friends at the Alliance for Justice as an analysis of Justice Scalia’s recent public commentary, along with some comments about the balance of the current Supreme Court. I’m more interested in the latter than I am in talking about Justice Scalia in particular, and I’m especially interested in a conversation about what we can do to avert further deterioration in the direction the Court is taking.

Justice Scalia is a brilliant, somewhat charming, self-styledly prickly, apparently nice-to-his-friends-and-family man. Some people find all of this interesting. It’s not. The main point about Justice Scalia is that he is an almost-down-the-line conservative verging-on-radical judge who is one vote away from being one among five of the most powerful people (as a bloc) in America.

He writes beautifully, tossing off sarcastic and acerbic bon mots that, rather ironically, tend to distract from his mission to rewrite large parts of the Constitution as its meaning has developed over the past 200-plus years. We need to keep our eyes on his mission.

Justice Scalia purports to be on an archeological expedition – perhaps more precisely, he purports to have concluded his dig and to have found out what the framers of the Constitution intended. His “discoveries” divide roughly into two parts – purported knowledge about the original intent behind the parts of the Constitution where there are words that cover such matters as speech and religion, and purported knowledge, again derived from original intent, about matters where the Court has found constitutional protection for rights that are not “enumerated,” as the jargon goes. As things have evolved, most of these so-called unenumerated rights have found a textual home in the word “liberty” in the Fifth and Fourteenth Amendments. Justice Scalia thinks almost all of that is hogwash.

Justice Scalia tells interviewers that because he’s really a sweetie-pie moderate he wouldn’t go back and overrule all of the erroneous decisions that dozens of his misguided forbears put into the United States Reports. Unlike his truly radical brother, Justice Clarence Thomas, he’s only after some of the really bad ones, like Roe v. Wade. And of course he’s not above inventing new rights when it suits him, as he did in Bush v. Gore.

One has to skirt over a lot of messy stuff to be such a stout-hearted originalist. Whose intent, for example? The writers? Do we know what they each had in mind? Justice Scalia has excoriated those who think they can find meaning in statutory words by divining the purposes of those who did the legislating. His view about the Constitution seems at odds with that. How about the voters in each state – the people whose votes ratified the Constitution? Does he know what they had in mind? Apparently, although it may differ from state to state, and is perhaps different from what was on the minds of the drafters.

And even at the time, there were people – Chief Justice John Marshall is the outstanding example – who said this was to be a document for the ages. Never forget that this is a Constitution we are expounding, we were enjoined.

Think about the words “equal protection.” Meant to cover women. Funny how we didn’t discover that was true until the 1960s. Well, he might reply, plain meaning. Okay. How about why “equal protection,” which was meant to protect African-Americans, turns out to ban legally mandated segregation of children in schools, when there was a widespread understanding at the time of the 14th Amendment’s ratification that school segregation was acceptable. What’s the original intent? Specific or general? You’d have to say it was general, in order to conclude that the Court could decide Brown as it did without amending the Constitution. Writing on a different aspect of the 14th Amendment, Justice Scalia has insisted that the level of protection accorded by the constitutional language must be at the “most specific level at which a relevant tradition . . . can be identified.”

Oh well, consistency is for little minds.

One could go on and on. Is Scalia an apostle of judicial restraint? One recalls his concurrence in Webster, an important pre-Casey abortion case, where – even though the case did not need to call Roe itself into question – he called for reaching out to overrule Roe, asking why the Court should “needlessly . . . prolong this Court’s self-awarded sovereignty” in the area of abortion.

So much for Justice Scalia, for the moment anyway.

The real question is the danger we are in as a nation. Whatever some people thought, it is now clear that Chief Justice Roberts and Justice Alito are on the same mission as Justices Scalia and Thomas: to rewrite the Constitution and take it back anywhere from 40 to 70 to 100 to 200-plus years, depending on the Justice and depending on the area of the law.

We are hanging by a thread. It has a name – Justice Kennedy. Justice Kennedy is what remains of the center on the Court. Even with Justice O’Connor there were many troubling 5-4 decisions, especially in the areas of federalism, criminal justice, and corporate power. Justice Kennedy votes with the more liberal members of the Court now and again, and has done so in a few extremely important cases. If Justice Scalia gets one more fully reliable ally, the course of American history will change.

Yet the American people seem unaware of – or not to care about – the danger. Of course – at least from a progressive point of view – the Supreme Court has never been a particularly salient issue, at least not since the 1930s. Conservatives seem more successful in making a politics out of what they call “activist” judges (never mind that it was a conservative Court that overturned a long list of federal statutes in the 1990s). Those who would uphold individual rights and liberties and curb untrammeled Presidential power are on the whole ineffective in stirring public concern.

My questions are why and does anyone have any idea of what to do about it? I’m happy to chat about Justice Scalia and the current Court during today’s session, but what I’m really interested in are your ideas about how to inject the looming dangers to our rights and liberties into the current electoral conversation.

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Peter Edelman

Peter Edelman