Cass Sunstein is among the country’s foremost legal scholars, distinguished by both his prodigious output and an interdisciplinary approach that draws on the insights of behavioral psychology, economics, and social science research. In his latest book, Constitutional Personae: Heroes, Soldiers, Minimalists, and Mutes, he gives us an engaging study of jurisprudential comportment that classifies judges into the four groups of the subtitle.
I was saddened to read Judge Richard Posner’s vitriolic criticism of Antonin Scalia written in the New York Times with Eric Segall. Judge Posner’s scholarship was the most important contribution to law in the latter half of the 20th century. He reformed many areas of law through the application of economics and did so with clarity, wit, and panache. As Blackstone was the leading legal scholar of this time, so was Judge Posner during my first 25 years as a lawyer.
But being a scholar carries some obligations. And one of them in my view is the obligation of charity—to put the views you oppose in the best possible light before critiquing them. Or if that is not possible within the short space of an op-ed, at least not caricaturing them. I would think that also the obligation of one federal judge to another in the popular press.
And it is obvious from his vast body of work that Justice Scalia does not believe in deferring to the majority, when the Constitution actually prohibits what the majority wants to do. He emphatically does not, as the Judge Posner and Professor Segall claim, embrace “the model of the British Constitution” where the legislature once was the final word.
Justice Scalia rigorously enforces the First and Second Amendments in the Constitution and many other provisions as well, including many that defend the rights of unpopular minorities, like those accused of crimes, because they are in the Constitution.
Rick Hasen has called for making Supreme Court appointments an important part of 2016 political campaign. What is distinctive about his argument is that he drops all pretense of appointing justices based on their jurisprudence or methods of legal analysis. He just wants a series of left-liberal results that he characterizes as civil right decisions, although some of these results, like overruling Citizens United, actually take away civil rights exercised against the majority. He wants to further politicize the Court. He is kind enough to quote me as arguing for depoliticization: The Court should act apolitically by applying the same formal methods in highly contested constitutional cases that it does in garden variety cases, such as the bankruptcy code.
Hasen dismisses this possibility and in particular the most important tool for doing so– originalism. But his arguments are very weak. He observes that at times Scalia and Thomas—both originalists—disagree. But of course no methodology eliminates all disagreement, even if it depoliticizes that disagreement by forcing justices to look at the empirical facts rather than to their preferences. And in any event Scalia and Thomas have some of the highest rates of agreement of any two justices on the Court.
Hasen also argues that terms like equal protection are sufficiently vague to permit alternative legitimate methods of giving effect to the Constitution. But he makes no effort to legitimate or even describe these methods other than to argue that they can help achieve what he views as good political results.
Justice Antonin Scalia is criticized these days ostensibly not for the substance but for the style of his opinions. His writing is said to be disrespectful as when he critiques the Justice Kennedy’s opinion in Obergefell, the recent case on same-sex marriage. There he stated: “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag.” He also noted: “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.”
I cannot join in the criticism of his style. That is not to say I particularly warm to the all rhetoric of his dissent in Obergefell. It is not as powerful as that of his masterpiece in Casey, which also had harsh passages, but his disdain has a point. The value of an opinion is measured by the coherence of its reasoning. If someone’s opinion is as unreasoned as Kennedy vapidities about identity, it is worth pointing out with some virulence. What John Hart Ely famously said of Roe is true of Obergefell: it is not constitutional law and gives almost no sense of an obligation to try to be.
If Scalia believes (and I think he has reason to believe) that the many of the justices joining in Kennedy’s opinion were doing so for its result not for its reasons, they are not acting judicially. Ridicule in defense of the rule of law is no vice.
Honorary degrees are the highest symbol of recognition that universities can bestow. And the Ivy League retains the greatest reputation for excellence in American higher education. Thus, it is of more than a little interest that these institutions find excellence overwhelmingly in justices on the left of the judiciary.
Of the fourteen honorary degrees bestowed by Ivy League institutions to living Supreme Court justices twelve went to those on the left of the Court. Justice Ginsburg is the champ: she has an honorary degree from every Ivy League university except Cornell and Cornell does not award honorary degrees. And she is by some political science measures the farthest to the left on the Court. Justice Sonia Sotomayor has two such degrees (Princeton, Yale) and Stephen Breyer, John Paul Stevens and David Souter have one each (Penn, Princeton, and Harvard respectively). While I am not knowledgeable about all foreign judges, the two I did recognize from the Ivy lists, getting two honorary degrees each, were Albie Sachs of South Africa and Aharon Barak of Israel—two of the most famous left-leaning jurists from abroad. Indeed, some of Barak’s opinions make those of William O. Douglas seem modest and lawful.
Against all this celebration of left-liberalism, Brown and Yale did give honorary degrees to Sandra Day O’Connor, the swing justice of her day and a moderate conservative. But no Ivy League University has ever awarded such a degree to anyone sitting now on the right of the Court. What makes this performance even more obviously ideologically driven is that these academic institutions have neglected the one who has had the most academic influence—Antonin Scalia.
Our literary, journalistic, and thespian culture is, to put it mildly, not hospitable to conservatism in general or the legal formalism with which conservatives have long been associated. The obvious, but shallower reason, for this clash, is that our cultural elites of every kind are overwhelmingly left-liberal. The deeper reason is that much of our culture is so driven by questions of personal identity and authenticity that it has trouble even comprehending the impersonality of the principles that are at the heart of republican constitutionalism.
The Originalist, a play about Antonin Scalia, at the Arena Stage illustrates both of these problems. The conceit of the play is that Scalia has hired a liberal law clerk, Cat, and they argue about different cases. But the author does not spend nearly enough time explicating originalism or for that matter any other jurisprudence to make the play a battle of ideals. As I say in my review for City Journal, the playwright John Strand is no Tom Stoppard and “has written an intellectual ghost story, in which shadows of ideas fret their minutes on the stage.”
It almost goes without saying that play trots out the usual stereotypes of conservatives.
In Comptroller v. Wynne, the Supreme Court this week invalidated a Maryland tax on the basis of the dormant commerce clause, despite claims by Justice Antonin Scalia and Justice Clarence Thomas in dissent that the dormant commerce clause is not grounded in the original meaning of the Constitution. Michael Greve celebrated the majority’s choice to follow long established dormant commerce clause precedent and implicitly suggested that Wynne provides evidence that originalism is an implausible and even futile interpretive theory.
Michael is half-right. Originalism is certainly an inadequate theory if it cannot find a principled approach to precedent, like that on which the Wynn majority relied. Certainly, it is not politically possible for the Court to discard settled precedent when to do so would have enormous costs for society or when the precedents have become as accepted as constitutional provisions themselves. But, as Mike Rappaport and I have argued, the Constitution contemplates that justices will follow precedent. Moreover, sensible precedent rules are available that preserve the bite of originalism and still permit the Court to affirm a substantial number of well-established precedents.
Thus, my criticism of the opinions in Wynne is quite different from Michael’s.
I am grateful for Michael Greve’s post on my analysis of Our Two Supreme Courts. I wholly agree with his positive point. The political or aristocratic Court comes to the fore not only in constitutional cases, but in statutory interpretation cases that implicate constitutional values or important political issues. Preemption is a fine example because the broader is the scope of preemption, the more limited is the authority of the states.
I am in less agreement with his normative point. I had argued that the way to dissolve the difference between the legal and the political court was for the Court always to take the same formalist approach that it does in ordinary statutory cases, like interpreting the bankruptcy code. Michael doubts that such formalism is regularly possible in constitutional law because of the open ended nature of constitutional provisions. But Mike Rappaport and I have argued previously that the common claims that constitutional provisions are abstract and need to be filled in by judges may well be false. Once we know more about their history, we can often determine a clearer meaning of the constitutional provision at issue.
A recent Supreme Court order portends interesting limits on the Securities Exchange Commission and on Chevron deference. Earlier this fall, I observed how the SEC evades jury rights and other rights of criminal defendants by proceeding against them in SEC hearings. Now, as noted by Ed Mannino, the Supreme Court is beginning to focus on a related danger.
In a speech at William and Mary Law School last weekend Justice Antonin Scalia rejected the idea of a two-year course of legal education and assailed at least some law professors as overpaid teachers of irrelevant material. He is wrong about the two-year path, but half right about some professors.
Scalia’s rejection of the two-year proposal is rooted in his view that three years are necessary to create “a legal professional,” but he provides no evidence for this claim. He does not consider the history of the requirement, which suggests that a three-year law course arose as a method of shielding incumbents from competition, particularly from immigrant families who would have difficulty affording lengthy legal education. Economists are generally wary of process requirements—like a three-year requirement for a law degree—as opposed to a performance requirement—passing the bar exam. The former tends to create a barrier to entry with no clear relation to improved output.
Scalia also does not take into account that law is a very variegated profession and that legal education should reflect this variety.