Scalia on judicial philosophy...

In the wake of the Lawrence v. Texas decision, Supreme Court justice Antonin Scalia seems to have undertaken an effort to inject the ideas of his stinging dissent into the public discourse. Trying to make a coherent public case for his notion of "strict construction" may be the doctrine's downfall in the end, but I think it gives us a fascinating insight into Scalia's personality.

Over a week ago, Bradford Plumer's personal blog linked to this Orin Kerr post on Justice Scalia's lecture at the EPPC. Half of my comment on that was apparently obliterated by Blogspot, but Scalia's Tuesday appearance at Harvard reinforces my reaction, which was:

While he may be right to puncture the idea that the judiciary is the proper place to look for moral guidance, the idea of judges operating on a purely legalistic and non-moral basis is strange. I would hazard a guess this stems from having to personally grapple with the issue of being a Catholic.

Scalia wants very badly, I think, to believe that he can be a pure constructivist and a good Catholic at the same time. In order to do so, he needs to feel he has built an effective wall between judging and morality.

He seems to push this notion of a judiciary that is at most a Constitutional clarifier; a legalistic technician. "Strict construction" has a benighted understanding of 'interpretation.' In the end its a sort of "deflated judicialism." There the judge is a passive instrument; a mess sorter.

This section of Scalia's Harvard talk (from the Boston Globe) may show what I'm trying to get at:

"What I am questioning is the propriety, indeed the sanity, of having value-laden decisions such as these made for the entire society . . . by judges," Scalia said.

The Constitution, he said, should not be a "living document" open to interpretation by judges.

"It is blindingly clear that judges have no better capacity than the rest of us to determine what is moral," said Scalia, who was appointed to the high court in 1986.

What Scalia appears to be advocating is some kind of Morality-Court wall and perhaps a superficial relativism--a sort of parody of the Church-State separation doctrine. He is also arguing that the Constitution can't be understood or applied to resolve particular controversies unless through the lens of "original intent" and a narrow construal of legal text.

In denying that the judge ought to play a moral role in his/her duties, that the function of judging excludes moral activity, Scalia is trying to accomplish something, and I think it's along the lines of what I said above. By absolving the judge of moral agency, the judge can then comfortably believe that the "opinions" and "decisions" he reaches merely serve to relay information. When such “opinions” run contrary to the judge's independent (i.e., personal) tenets of moral action, the judge claims he is merely describing the law, a kind of behavior separate from the moral imperatives to which he also feels obedience. The judge, when merely describing, does not “act” so to speak, as does the judge who “interprets.” Thus, the describing judge can persist in two, mutually exclusive personas simultaneously; in the end being both a good judge and a good person at the same time.

I am reminded somewhat of John Locke's contention that philosophy's purpose will be to "clear the ground" for science, and to aid science in the expansion of its knowledge (and would therefore have nothing to say about the nature of science itself). Philosophy clarifies and organizes descriptions of the world, in this view. This fit with Locke's idea of an individual's knowledge as the product of the passive collection of empirical data (i.e., all knowledge is gained through perceiving the observable). The perceiver is surrounded by—or, is internal to—the world. For Scalia, the judge-as-individual exists internally to the framework of law, and can only legitimately serve to illuminate that structure and enforce its explicit dictates when controversies are brought before the courts. This, I think, is Scalia's strict constructionism in a nutshell. Like Locke's passive perceiver, Scalia's judicial philosophy of purified legalism sees the judge as a passive describer.

In this way, a judge can accommodate himself to his role as an arbiter of divisiveness in a pluralistic society, while also having a highly authoritarian personal moral code. (In this case Catholicism, which relies quite a bit on it own legalistic imperatives to generate moral obedience and explain disobedience.) The judge may be morally obliged when acting, but since the act of “judging” is only the passive function of describing, the personal obligations of moral agency play no role.

I think this explains Scalia’s current public program, because this moral-legal problematic must be particularly difficult for an active Catholic to come up with an account of a judicial legitimacy in American society. Thus, I think Kerr misinterprets Scalia when hypothesizing that this position is the product of an institutional pragmatism. Instead, it is the product of a fairly unique moral problem Scalia faces personally.

But there are serious problems with Scalia’s position:

First, he says, “What I am questioning is the propriety, indeed the sanity, of having value-laden decisions such as these made for the entire society . . . by judges.” This sounds reasonable at first, but it implicitly asserts that instead judges’ decisions should always be value-neutral. The problem is, is this even possible? Can judges function as value-neutral clarifiers of law? Can an individual genuinely achieve some kind of status that is utterly value-free? I think this is highly questionable for so many reasons it deserves its own post. But most dangerous would be people coming to believe that judges can do so, and that therefore the opinions they produce and the decisions they render are incontestable and authoritative because they are value-free. If, as I believe, the idea of the non-moral judge is impossible, widespread belief in such a myth would be infinitely more dangerous than the idea of a judge as moral authority.

Which leads to my second point: Scalia’s problem with the idea that judges are sources of moral authority. There is a sharp difference between arguing against the idea of courts or judges as source of “moral” guidance, which I agree is very silly, and the subsequent expectation that therefore judges must be non-moral in their decision making. There is a difference between viewing a judge as a moral agent who is also a thinking member of society, and the notion that I owe obedience to judges because of their superior moral knowledge. Confusing these two ideas is bad reasoning, and I honestly can’t think of anyone who argues that judges have an inherent moral authority over the rest of society.

Thirdly, Scalia’s own doctrine is something of a moral position, even though he would like to insulate it from a moral critique. Also, the strict constructionist cannot point to much in the way of a textual justification for their doctrine (for instance, neither the Constitution nor the Founders assert “thou shalt strictly construe”). Thus, they supervene an interpretation onto the practice of judging.

Fourthly, and from the first point, if it is impossible to be a value-neutral judge, then a judge or judiciary that asserts value-neutrality is being misleading. If rendering decisions and making opinions are fundamentally acts of interpretation, then denying the legitimacy of legal interpretation while practicing it is extremely problematic. (For instance, Scalia’s own idea of inherent, yet non-textually based rights of parents over their children is highly interpretive.) Instead, the argument would be better made if it focused on issues of legitimate versus illegitimate notions of legal interpretation, something strict constructionists can do while maintaining the idea of a deflated judicialism. However, Scalia would no longer be able to contend his own peculiar idea of a clear distinction between judging and morality.

Comments

[brad plumer]

Great post. Not to mention that the very act of drastic reversion is a distinctly un-conservative move. Scalia may think that the Stone-Vinson-Warren courts made a number of illegitimate decisions, but people have gotten used to New Deal arrangements, and to yank them out of that inertia is a pretty radical call. If you want to do the Oakeshott thing and claim that morality arises from whatever cultural practices exist, fine, but you better start with the practices that actually exist right now, not some long ago era.

[Stygius]

That reminds me a lot of British constitutionalism. People say its an "unwritten" constitution, but more accurately its a conglomeration of written law, treaties, precedents, parliamentary institutions, a restrained monarchy, the Common Law, and unwritten historical conventions. Even the press plays a role in this constitutional order. A better word would be "invisible." It cannot be pointed to, although it can be referred to. All of this evolved over the course of history, congealing or mutating in adaptation to circumstance. Thus, practices have just as much a role to play in the constitutional order as any written law, perhaps more so in many cases.

How much of that transfers over here, since we do have a written Constitution? I'm not sure altogether. From your reply, I think you would agree with the idea that many of the New Deal institutions have become part of our constitutional order. Many argue that it has become an expectation on the part of the population, an expectation of permanence, that gives it a role to play in the overall constitutional order.

But what I think we can abstract from the British experience is that a constitution can only be successful if it survives the unforseen and unpredicted particular circumstances that it is faced with. The point of a constitution is to create a political order that endures over time. Interpretation and adaptation to circumstance is, to me, an essential role in the success of the Constitution. In effect, it demands it. I think this is a very Hamiltonian notion, who admittedly admired Britain's constitutionalism (which is distinct from the monarchy).

A stagnant, mechanistic, and immobilized approach to the Constitution and judicial "interpretation" would ultimately kill it off; misunderstanding its role and purpose and ultimately violating responsibility to it.

And Scalia would insitute drastic changes if he could, starting with castrating stare decisis and probably trying to undermine McCulloch v. Madison's judicial review doctrine.

[tootboy]

Styg,

I respect you for getting into the minutia of a subject. I am more of a macro guy and you are a micro guy. Maybe it's my laziness to really delve into subjects or write about it.

I truly respect you for that.

[Stygius]

Thanks, Toot. Much appreciated.

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