This is last of my 3-part series on Justice Scalia, Diva of Disdain. Part 1 is here; Part 2 is here. The introduction is here.
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In the United States, Tocqueville observed, a federal judge “must know how to understand the spirit of the age.” While the persona of a Supreme Court Justice may be “purely judicial,” his “prerogatives”—the power to strike down laws in the name of the Constitution—“are entirely political.” If he is to exercise those prerogatives effectively, he must be as culturally nimble and socially attuned as the shrewdest pol.
How then to explain the influence of Scalia? Here is a man who proudly, defiantly, proclaims his disdain for “the spirit of the age”—that is, when he is not embarrassingly ignorant of it. (When the Court voted in 2003 to overturn state laws banning gay sex, Scalia saw the country heading down a slippery slope to…masturbation.) In 1996, he told an audience of Christians that “we must pray for the courage to endure the scorn of the sophisticated world,” a world that “will not have anything to do with miracles.” We have “to be prepared to be regarded as idiots.” In a dissent from that same year, Scalia declared, “Day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize.” As Maureen Dowd wrote, “He’s so Old School, he’s Old Testament.”
And yet, according to Elena Kagan, the newest member of the Court, appointed by Obama in 2010, Scalia “is the justice who has had the most important impact over the years on how we think and talk about the law.” John Paul Stevens, the man Kagan replaced and until his retirement the most liberal Justice on the Court, says that Scalia has “made a huge difference, some of it constructive, some of it unfortunate.” Scalia’s influence, moreover, will in all likelihood extend into the future. “He is in tune with many of the current generation of law students,” observes Ruth Bader Ginsburg, another Court liberal. Give me a law student at an impressionable age, Jean Brodie might have said, and she is mine for life.
It is not Scalia’s particular positions that have prevailed on the Court. Indeed, some of his most famous opinions—against abortion, affirmative action, and gay rights; in favor of the death penalty, prayer in school, and sex discrimination—are dissents. (With the addition of John Roberts to the Court in 2005 and Samuel Alito in 2006, however, that has begun to change.) Scalia’s hand is more evident in the way his colleagues—and other jurists, lawyers, and scholars—make their arguments.
For many years, originalism was derided by the left. As William Brennan, the Court’s liberal titan of the second half of the twentieth century, declared in 1985: “Those who would restrict claims of right to the values of 1789 specifically articulated in the Constitution turn a blind eye to social progress and eschew adaptation of overarching principles to changes of social circumstance.” Against the originalists, Brennan insisted that “the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”
Just a decade later, however, the liberal Laurence Tribe, paraphrasing the liberal Ronald Dworkin, would say, “We are all originalists now.” That’s even truer today. Where yesterday’s generation of constitutional scholars looked to philosophy—Rawls, Hart, occasionally Nozick, Marx, or Nietzsche—to interpret the Constitution, today’s looks to history, to the moment when a word or passage became part of the text and acquired its meaning. Not just on the right, but also on the left: Bruce Ackerman, Akhil Amar, and Jack Balkin are just three of the most prominent liberal originalists writing today.
Liberals on the Court have undergone a similar shift. In his Citizens United dissent, Stevens wrote a lengthy excursus on the “original understandings,” “original expectations,” and “original public meaning” of the First Amendment with regard to corporate speech. Opening his discussion with a dutiful sigh of obligation— “Let us start from the beginning”—Stevens felt compelled by Scalia, whose voice and name were present throughout, to demonstrate that his position was consistent with the original meaning of freedom of speech.
Other scholars and jurists have helped bring about this shift, but it is Scalia who has kept the flame at the highest reaches of the law. Not by tact or diplomacy. Scalia is often a pig, mocking his colleagues’ intelligence and questioning their integrity. Sandra Day O’Connor, who sat on the Court from 1981 to 2006, was a frequent object of his ridicule and scorn. Scalia characterized one of her arguments as “devoid of content.” Another, he wrote, “cannot be taken seriously.” Whenever he is asked about his role in Bush v. Gore (2000), which put George W. Bush in the White House through a questionable mode of reasoning, he sneers, “Get over it!” Nor, contrary to his camp followers, has Scalia dominated the Court by force of his intelligence. (“How bright is he?” exhales one representative admirer.) On a Court where everyone is a graduate of Harvard, Yale, or Princeton, and Ivy League professors sit on either side of the bench, there are plenty of brains to go around.
Several other factors explain Scalia’s dominance of the Court. For starters, Scalia has the advantage of a straightforward philosophy and nifty method. While he and his army march through the archives, rifling through documents on the right to bear arms, the commerce clause, and much else, the legal left remains “confused and uncertain,” in the words of Yale law professors Robert Post and Reva Siegel, “unable to advance any robust theory of constitutional interpretation” of its own. In an age when the left lacks certainty and will, Scalia’s self-confidence can be a potent and intoxicating force.
Second, there’s an elective affinity, even a tight fit, between the originalism of duresse oblige and Scalia’s idea of the game. And that is Scalia’s vision of what the good life entails: a daily and arduous struggle, where the only surety, if we leave things well enough alone, is that the strong shall win and the weak shall lose. Scalia, it turns out, is not nearly the iconoclast he thinks he is. Far from telling “people what they don’t like to hear,” as he claims, he tells the power elite exactly what they want to hear, that they are superior and that they have a seat at the table because they are superior. Tocqueville, it seems, was right after all. It is not the alienness but the appositeness of Justice Scalia, the way he reflects rather than refracts the spirit of the age, that explains, at least in part, his influence.
But there may be one additional, albeit small and personal, reason for Scalia’s outsized presence in our Constitutional firmament. And that is the patience and forbearance, the general decency and good manners, his liberal colleagues show him. While he rants and raves, smashing guitars and dive-bombing his enemies, they tend to respond with an indulgent shrug, a “that’s just Nino,” as O’Connor was wont to say.
The fact may be small and personal, but the irony is large and political. For Scalia preys on and profits from the very culture of liberalism he claims to abhor: the toleration of opposing views, the generous allowances for other people’s failings, the “benevolent compassion” he derides in his golf course dissent. Should his colleagues ever force him to abide by the same rules of liberal civility, or treat him as he treats them, who knows what might happen? Indeed, as two close observers of the Court have noted—in an article aptly titled “Don’t Poke Scalia!”—whenever advocates before the bench subject him to the gentlest of gibes, he is quickly rattled and thrown off his game. Prone to tantrums, coddled by a different set of rules: now that’s an affirmative action baby.
Ever since the 1960s, it has been a commonplace of our political culture that liberal niceties depend upon conservative not-so-niceties. A dinner party on the Upper West Side requires a police force that doesn’t know from Miranda, the First Amendment a military that doesn’t know from Geneva. That, of course, is the conceit of 24 (not to mention a great many other Hollywood productions like A Few Good Men ). But that formulation may have it exactly backward: without his more liberal colleagues indulging and protecting him, Scalia—like Jack Bauer—would have a much more difficult time. The conservatism of duresse oblige depends upon the liberalism of noblesse oblige, not the other way around. That is the real meaning of Justice Scalia.