So this is really interesting: The Court, according to John McGinnis, doesn’t really deliberate about the law when it comes to high-profile cases. It functions instead as a “cognitive elite”— the aristocratic part of a mixed regime. It’s job, I guess, is to supply wisdom and virtue to counter popular and legislative ignorance and expediency. First off: I don’t know about the virtue part; after all, they were trained to be lawyers and not philosopher-kings. And if what they were doing were “cognitive” in the sense of listening to reason, why do they so often divide 5-4 on the high-profile cases? All reasonable men and women should assent to the truth. when they hear it.
There are three paradigmatic types of Supreme Court justices—the jurisprude, the ideologue, and the partisan. While no actual Supreme Court justice perfectly represents the ideal, some present pretty close approximations. It is hard to understand or predict the results of Supreme Court cases without determining how a particular justice fits into these types.
The jurisprude is a justice committed to a particular method of judging rather than an particular set of results. On the current Court the examples par excellence are Justices Antonin Scalia and Clarence Thomas who are committed to originalism. From the past Justice Hugo Black was a textualist and Felix Frankfurter, his sparring partner, advocated an historical jurisprudence. These jurisprudential commitments frequently lead to unusual ideological results. Justice Scalia (and Justice Thomas as well) vote for criminal defendants based on their close readings of the language of the Constitution, like the Confrontation Clause. For originalist reasons, Justice Thomas is no friend of preemption claims with the result that in his opinions businesses often lose to state tort law and regulation. Despite being a New Deal populist as a Senator, Black as a Justice wanted to enforce the Contract Clause against debtors.
The ideologue is a justice who is strongly right or left of center as that is defined in his day and votes that way.
Professor Ross Davies has a cool new article in the Green Bag, titled “Extrajudicial Reticence: Nine Justices Take a Brief Break from Constitutional Commentary.” Davies draws attention to a curious episode in Supreme Court history, where Life Magazine asked each of the Justices to write a commentary on one of the Amendments in the Bill of Rights. Davies notes that for, perhaps the first and only time ever–briefly in 1991–the Justices decided not to weigh in on the Constitution outside the Court.
Recently, Justice Scalia made a lot of news when he faulted Chicago deep dish pizza. He noted that it is more like a “tomato pie,” and “shouldn’t be called pizza.” (As a native of Staten Island, I couldn’t agree more!). But during his speech at the Union League’s 126th George Washington’s Birthday Gala, Justice Scalia spoke to a much higher power than pizza.
He opined on the relationship between civic virtue, or what he called “the Republican spirit” and a “successful republic.”
While Judge Posner’s review of the Scalia/Garner book has received a great deal of attention, my posts have focused on issues different than other posts have (link no longer available). So I plan to continue this series for a little while longer.
Posner next criticizes originalism based on the problems that arise from relying on history:
The decisive objection to the quest for original meaning, even when the quest is conducted in good faith, is that judicial historiography rarely dispels ambiguity. Judges are not competent historians. Even real historiography is frequently indeterminate, as real historians acknowledge. To put to a judge a question that he cannot answer is to evoke “motivated thinking,” the form of cognitive delusion that consists of credulously accepting the evidence that supports a preconception and of peremptorily rejecting the evidence that contradicts it.
Judge Posner would have judges decide cases based in part on their own policy views. As Posner’s essay reveals, judges often feel strongly about such matters, and if allowed to take them into account will certainly do so.
Posner thinks that originalist judges will read their policy views into the history. That is certainly a risk. But when judges engage in “motivated” history, they can be criticized and sometimes it will be clear that they got the history wrong. Moreover, even if judges are motivated by policy, it is not clear why that is worse than having judges consider policy directly. In addition, I am confident that having judges consider history will lead them to consider policy less often than judges who are instructed to consider it as part of the adjudicative process.
So, in a preemptive defense against accusations that textual originalism is political, the book gives examples of liberal decisions that Scalia has written or joined . . . In United States v. Eichman, for example, he voted to hold a federal statute forbidding the burning of the American flag unconstitutional, and it was certainly a vote against his ideological grain. But it is a curious example for a textual originalist to give. The relevant constitutional provision—“Congress shall make no law abridging … the freedom of speech”—does not mention non-verbal forms of political protest, and Scalia and Garner insist that legal terms be given their original meaning lest the intent of the legislators or the constitution-makers be subverted by unforeseen linguistic changes. . . . That approach is inconsistent with interpreting “freedom of speech” to include freedom to burn flags, since the eighteenth-century concept of freedom of speech was much narrower than the modern concept, and burning cloth is not a modern technological innovation. According to William Blackstone, whom Scalia and Garner treat as an authority on American law at the time of the Constitution, freedom of speech forbids censorship in the sense of prohibiting speech in advance, but does not prohibit punishment after the fact of speech determined by a jury to be blasphemous, obscene, or seditious. And so an understanding of free speech that embraces flag burning is exceedingly unoriginalist. It is the product of freewheeling Supreme Court decisions within the last century.
Judge Posner has a plausible interpretation of Freedom of Speech here, but he is much too confident about it, and consequently, his criticism of Scalia and Garner here is wide of the mark. It is certainly possible, as Judge Posner suggests, that freedom of speech does not include the symbolic act of burning a flag. But recent work by First Amendment expert Eugene Volokh argues persuasively that symbolic acts may have been covered by the language “the freedom of speech, or of the press.”
Richard Posner’s review of Antonin Scalia and Bryan Garner’s new book is peculiar. There is no way to see it as other than a hatchet job – an attempt to attack the book, without balance, from every possible direction. As with most hatchet jobs, it reflects as poorly on its author as on its target.
I say this with some regret as I believe that Richard Posner is a genius – a genius in the sense that he is capable of doing what it is hard to imagine a human being doing. His incredible output at a high quality is just amazing. It is not that any bit of it is so dazzling, although it is quite good; it is the incredible quantity of it at that high level. But, of course, that he is a genius does not make him right. Nor, as is most applicable in this case, does it mean that he does not let his passions get the better of him.
I am not sure how much to blog about this. But as I read through the review, so much is wrong that I thought I would just start discussing it. We will see how many posts I can write about it before tiring. For a more systematic criticism of Posner by someone (unlike me) who has read the Scalia and Garner book, see Ed Whelan’s post (link no longer available). I should note that I don’t agree with Scalia about everything and Posner does make some good points. But the weaknesses of his review are pretty glaring.
Tim Sandefur recently had a post up claiming that Justice Thomas is the greater originalist, not Justice Scalia (as Lee Strang had claimed). I don't necessarily disagree with Sandefur -- I think that both Scalia and Thomas have their virtues. But I do strongly disagree with one aspect of Sandefur's post where he says: But if originalism means anything, it means that the Constitution has a meaning, and that it’s possible for courts to get that meaning wrong, and between those two—following the wrongly decided precedent or following the Constitution’s actual meaning—a judge must choose the latter. One can disagree with this approach,…