Taking Sides: Scalia and the Politicization of the Supreme Court

The recent death of Justice Antonin Scalia closes the book on an enormously influential and in many ways exemplary legal career, and opens the door to a political knife fight that he probably would have found repugnant.

This blog has repeatedly focused on Scalia over the years, first in the context of the ruling for which he will probably be best remembered, D.C. v. Heller, which found in the Second Amendment an unqualified right of an individual to own and use firearms (see http://keithmcwalter.com/2009/02/02/gun-control-and-judicial-activism/), and again last year when the Court legalized gay marriage in Obergefell v. Hodges, a decision from which Scalia dissented with characteristically withering disdain. http://keithmcwalter.com/2015/07/02/constitutional-roulette-the-supreme-court-gay-marriage-and-judicial-restraint/

He was first and foremost a strict constructionist, as much an English professor as a lawyer, bringing an etymologist’s eye to the interpretation of statutes and the Constitution.  Ideologically, he was deeply conservative, a leaning that was for the most part well-served by his “originalist” judicial philosophy, which dictates that a jurist should be concerned only with what the original draftsmen of the Constitution (or of any statute being measured by it) meant when they committed its words to the page, and not with how those words should be interpreted in light of 21st Century reality, much less when subjected to the jurist’s own personal predilections.

This is an important and credible viewpoint, even if you ultimately reject it (as I do) as a derogation of judicial responsibility, and Scalia was its principal champion for over four decades.  It is the foundation of the concept of judicial restraint, which situates our court system, and the Supreme Court in particular, tightly within the framework of the other two branches of government, inhibiting judges from performing either the function of the legislature to write law, or of the executive branch to implement it.  The courts, simply and purely, are to say what the law is, not what they might wish it to be.

The problem is that this is all very nice to say and almost tautological in practice.  Judges in the real world deal with the same problem in thousands of cases every day: how is a law (or a contract, or a constitution) to be applied to a fact pattern that no one who drafted it had foreseen?

Scalia would say that the reason Heller was rightly decided and Obergefell is flat wrong is because the Constitution speaks of guns and the right to bear them but does not speak about marriage at all.  And that’s the end of it.  Therefore, legislatures can deal with marriage more or less as they see fit, but can’t touch guns.

But what the Constitution “speaks” of isn’t quite the end of it.  Contrary to what the NRA would have us believe, the Second Amendment doesn’t actually say that an individual has the right to own any gun of any kind for any reason, period.  The Amendment is qualified on one side with a preamble that is thoroughly bound to its time (“A well-regulated militia, being necessary to the security of a free State…”) and on the other by a rather ambiguous statement of the right in question (“…the right to bear arms…”). (Note that I can “bear” a gun without owning it, and that therefore a good English speaker from Pluto might be justified in thinking that the right in question was the right to participate in a militia where I might be temporarily given a gun.) Historians and English scholars can and do differ reasonably on the question of what the draftsmen of that sentence meant by those words; their meaning isn’t susceptible to empirical discovery, like the existence of Pluto, or to quasi-religious absolutism. Yet Scalia’s stance was exactly that: there can be only one meaning, and I, Antonin Scalia, can discern it.

Scalia abhorred “judicial activism,” epitomized in his view by the Obergefell decision, where judges take on the role of legislative bodies and right wrongs as they see them by interpreting source texts to meet the perceived needs of the moment. But as in the case of the Second Amendment, there is almost always a gap between what the Constitution says on its face and what Scalia and other originalists conclude that it is saying, and that gap can only be closed in the same way that the majority in Obergefell filled the undeniable gap between the Fourteenth Amendment and the outcome of marriage equality: by fashioning, out of less than perfect sources, what they believe to be a just result under the here-and-now facts and circumstances presented to them.

And so we are back to ideology and, unavoidably, back to politics.  Scalia is dead (ding dong), and Obama will nominate his successor.  It is altogether proper that he do this; it’s his duty under the Constitution.  Equally inevitable, but less proper, is the Republican pledge to “delay, delay, delay” (as Trump so eloquently put it) any consideration of that nominee until after a new president is installed in office next year (which, if that new president is also a Democrat, will mean that Republicans will have inflicted upon themselves, to no advantage, any number of possible 4-to-4 decisions that will effectively neuter the Supreme Court and affirm, by default, lower court opinions that they may not like at all).

But leave aside the fascinating range of political tactics and consequences that can be spun out of this; the deeper question is why we tolerate – even embrace – the spectacle of a bunch of politicians turning the highest court in the land into a stage for their ideological posturing?  Why has the nomination of a justice to the Supreme Court become just one more occasion for taking sides?

A fascinating graph published in the New York Times after Scalia’s death depicts how long it took each and every nominee to the Supreme Court since Washington to be confirmed or rejected by the Senate. http://www.nytimes.com/interactive/2016/02/13/us/how-long-does-it-take-to-confirm-a-supreme-court-nominee.html  For the first hundred and fifty years or so of our republic, this took but a few days at most, except when a Jew was nominated (Louis Brandeis, nominated by Wilson, took 125 days).  Things begin to go haywire during the administration of Franklin Roosevelt, when he famously took it upon himself to pack the court with extra members in order to get the New Deal ratified.  After that, confirmation periods steadily lengthen: Potter Stewart (nominated by Eisenhower) took 108 days; Abe Fortas (another Jew), nominated by Johnson, took 100 days before his nomination was withdrawn.

The politicization of the Court reached a kindling point in the case of Robert Bork, who was nominated by Reagan and whose confirmation hearings took 114 days before he was rejected.  An ideological fist fight over Bork’s nomination was perhaps inevitable, as he had been Nixon’s Solicitor General during the Watergate scandal and had, at Nixon’s behest, carried out the firing of independent counsel in an attempt to head off the unraveling of his administration.  Bork, like Scalia (who was also nominated by Reagan), was a hard-core originalist who thought the “right to privacy” (on which Roe v. Wade was founded) was a fiction concocted by over-activist Supreme Court majorities.  His nomination was fiercely and successfully contested by Ted Kennedy and virtually every civil rights and women’s rights organization of the time.

Blame Roosevelt or Reagan, Nixon or Obama, but it’s clear that Supreme Court nominees have come to be viewed not as jurists to be vetted for their legal acumen, experience, and impartiality, but as pawns in an ongoing ideological struggle through whom sitting presidents and senators can impose their values and politics for decades after they leave office.  The Justices themselves are not blameless in this regard, as their self-imposed ban on making extra-judicial statements about issues of the day seems to have weakened in recent years, with Scalia himself leading the charge. The Court has been thoroughly and overtly politicized, and its opinions read less and less like legal analyses and more and more like position papers.

There is irony in the fact that conservative Republicans, most of whom adored Scalia and claim to share his disdainful views of judicial activism, have chosen to cast the pending nominating process as another pitched battle over ideology, since this implies not only that they view all judges as “activist,” but that they want them to be. Scalia would have been the first to admit that he was an ideological conservative, but the last to consciously allow that to influence his opinions.  To oppose a nomination to the Supreme Court in principle because one dislikes the politics of the President is to assert that judicial impartiality is a fantasy, and everybody knows it; all we are doing here, in effect, is hiring another lawyer to fight for our agenda.

I wish I could argue that this doesn’t have to be this way, that we as voters could rise up and force our elected representatives to behave themselves in the matter of Supreme Court appointments, but I’d be blowing smoke.  We have become a nation of Constitutional cynics, who believe not that the Supreme Court exists to discern and apply irreducible principles independent of politics, but rather that it is merely another, smaller legislature where we want our biases to be implemented.

I’m as bad as the next person in this regard; the primary reason I will vote Democratic in November is because I assume that the next president will nominate two or three new Supreme Court justices who will sit on the Court for a generation, deciding cases that will shape our nation to a far greater degree than our dysfunctional Congress.  We’ve sown deep political partisanship in each of the other two branches of government, and we will reap what we’ve sown in the future decisions of our politicized Supreme Court.  It will probably take a true crisis, Constitutional or otherwise, to shock us back into some semblance of respect for this once-honored branch of government.

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