Resetting the Post-Scalia Supreme Court
February 20, 2016, 5:29pm
The New York Times.

In the days since Justice Antonin Scalia’s death, there has been plenty of talk about the substantial impact his absence will have on the Supreme Court’s docket. I’d like to shift the focus to the Roberts court itself.

Fate has handed the justices a chance to hit reset.

If that seems an uncharitable, even tasteless observation, so be it. I’ve become increasingly concerned, as my recent columns have suggested, that the conservative majority is permitting the court to become an agent of partisan warfare to an extent that threatens real damage to the institution. Justice Scalia’s outsize role on and off the bench contributed to that dangerous development to an outsize degree.

I’m not claiming that he was completely responsible. Given the Supreme Court’s place in American life, there is no way it can avoid getting singed by the polarizing politics of the day. Nor was Justice Scalia solely to blame for the court’s drop in public esteem as demonstrated by a Gallup Poll in September showing that more people disapprove of the Supreme Court (50 percent) than approve of it (45 percent). While this is a notable departure from the historic trend, other governmental bodies have fared far worse (Congress has a 16 percent approval rating), and the court is to some degree caught in the back draft of generalized public mistrust of government.

Resetting the Post-Scalia Supreme Court
Oliver Munday 

It’s a situation that nonetheless calls for concern and exquisite care. Chief Justice John G. Roberts Jr. appeared to reflect that concern, and not for the first time, when he spoke earlier this month at New England School of Law in Boston. Contrary to the impression created by highly partisan Senate confirmation hearings, he said, Supreme Court justices are not in pursuit of an agenda and “don’t work as Republicans or Democrats.”

Maybe not, but two weeks before the chief justice’s visit to Boston, the court, acting on its own motion, turned a statutory case into a major constitutional one when it expanded its review of President Obama’s deportation-deferral program to include the question of whether the president has violated his constitutional duty to “take care that the laws be faithfully executed.” And a few days after the Boston visit, the court took the astonishing step of blocking the administration’s major climate-change initiative before a lower court had even had a chance to review it.

The “take care” question mapped perfectly onto the dissent that Justice Scalia read from the bench in June 2012 when the court struck down portions of Arizona’s anti-immigrant statute. (Chief Justice Roberts was in the majority.) Justice Scalia took the occasion to excoriate the Obama administration for an earlier version of its deportation-deferral program — a policy that was not at issue in the Supreme Court case and had not even been announced when the case was argued.

“Are the sovereign states at the mercy of the federal executive’s refusal to enforce the nation’s immigration laws?” Justice Scalia demanded, in a public performance that was as inappropriate as it was attention getting.

The Feb. 9 order blocking the president’s Clean Power Plan was issued without explanation and over the dissents of the court’s four liberals. I don’t know whether Justice Scalia was the driving force behind this highly unusual intervention in an ongoing regulatory review. But clearly it couldn’t have happened without him. Neither could the court’s other recent destabilizing interventions, including the 5-to-4 decision in Shelby County v. Holder to gut the Voting Rights Act of 1965.

The voting rights decision was a pet project of Chief Justice Roberts, an opponent of the Voting Rights Act since his days as a young lawyer in the Reagan administration. But Justice Scalia was much more than just a passenger. His behavior during the oral argument gave a public face to the ugliness behind the attack on the foundational civil rights law, which both houses of Congress had reauthorized by overwhelming margins.

Addressing Solicitor General Donald B. Verrilli Jr. during the argument on Feb. 27, 2013, Justice Scalia referred to the 2006 reauthorization and observed:

“And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. I don’t think there is anything to be gained by any senator to vote against continuation of this act. And I am fairly confident it will be re-enacted in perpetuity unless — unless a court can say it does not comport with the Constitution.”

A “phenomenon that is called perpetuation of racial entitlement”? “It’s been written about”? I must have missed that reading assignment.

Then, two months ago, Justice Scalia’s comment during the argument in the University of Texas affirmative-action case embraced the so-called mismatch theory beloved by opponents of affirmative action when he said that some minority students would benefit from “a less advanced school, a slower-track school where they do well.” I can only assume that somewhere out there is a tract that equates protection of the right to vote with perpetuation of racial entitlement.

His frequent parroting of right-wing talking points in recent years may have reflected the contraction of his intellectual universe. In an interview with the writer Jennifer Senior (now a New York Times book critic) in New York magazine in 2013, Justice Scalia said he got most of his news from the car radio and from skimming The Wall Street Journal and the conservative Washington Times. He said he stopped reading The Washington Post because it had become so “shrilly, shrilly liberal” that he “couldn’t handle it anymore.”

And while earlier in his Supreme Court tenure, he prided himself on hiring one politically liberal law clerk among his four clerks every year, he abandoned that practice at least a decade ago. In a recently completed (and as yet unpublished) study, Neal Devins, a law professor at William and Mary, and Lawrence Baum, a political scientist at Ohio State, calculated the percentage of each justice’s law clerks over the past 11 years who had previously clerked for a Democratic-appointed judge on a lower court. (This is a measure that scholars deem an acceptable proxy for the ideological orientation of a justice’s chambers.) Justice Ruth Bader Ginsburg ranked the highest, with 76.7 percent of her clerks having earlier clerked for Democratic-appointed judges. The figure for Chief Justice Roberts was 16.3 percent. Justice Scalia and Justice Clarence Thomas were tied for the lowest, at 2.3 percent each.

In their paper, “Split Definitive: How Party Polarization Turned the Supreme Court Into a Partisan Court,” the authors offer their observations about the elite social networks in which Supreme Court justices, no less than other power players in Washington, spend their lives. They note “a growing ideological divide among affluent, well-educated Democrats and Republicans,” with the result that “Democratic elites are more liberal than other Democrats; Republican elites are more conservative than other Republicans.” For the Supreme Court, they conclude, “justices on both the left and right are part of social networks that reinforce conservatism for Republican justices and liberalism for Democratic justices.”

These insights might help explain why someone as smart as Antonin Scalia seemed so un-self-conscious about his inflammatory rhetoric. He was simply giving voice to those he spent his time with. His world was one that reinforced and never challenged him.

About 10 years ago, I attended a gathering of Canadian judges and lawyers at Cambridge University. Justice Scalia gave his stump speech there about how his Constitution was not “living” but “dead,” with legitimate constitutional interpretation limited to the words and original understanding of the document’s authors. He may or may not have known that in Canada, constitutional interpretation starts from the premise that “the Constitution is a living tree.” In any event, his speech fell flat; rather than greeting his remarks with the appreciative chuckles and applause he usually received, the audience sat on its hands. I remember his disconcerted expression.

Justice Scalia received relatively few opinion assignments in major cases, either from Chief Justice Roberts or Chief Justice William H. Rehnquist, with whom he served for 19 years. The reason was obvious: He refused to compromise, a trait that put him at risk of losing a majority in close cases. I used to wonder why he didn’t value effectiveness over perfection, why he would not rather compromise than lose. But I came to realize that Justice Scalia wasn’t playing the inside game. No matter that he never persuaded a majority of his fellow conservatives on the court to sign up for his brand of originalism.

What mattered was his ability to invoke originalism as a mobilizing tool outside the court, in speeches and in dissenting opinions. The message was that courts have no business recognizing “new” rights. (Except, evidently, new rights of which Justice Scalia approved, such as an unconstrained right for corporations to spend money in politics.) The audience for his dissents, he told Ms. Senior in the New York magazine interview, was law students. The mission he set for himself was cultivating the next generation.

For a long time, he did a good job of addressing the public outside the court’s marble walls. In 2003, his dissenting opinion in the gay rights case Lawrence v. Texaswarned that the court’s declaration of constitutional protection for same-sex relationships would lead to protection for same-sex marriage. State after state heeded the warning and enacted same-sex marriage bans.

Ten years later, when he dissented from the court’s overturning of the Defense of Marriage Act in United States v. Windsor, which found that married same-sex couples were entitled to federal benefits, he warned that the decision made the constitutional right to same-sex marriage inevitable. “No one should be fooled; it is just a matter of listening and waiting for the other shoe,” he wrote.

Within a matter of months, federal district judges around the country invoked Justice Scalia’s dissent in striking down same-sex marriage bans. The much less polemical dissent in Windsor by Chief Justice Roberts, describing the decision as a narrow one based on principles of federalism, went uncited.

Had Justice Scalia overreached? Lost his touch? Or had times changed so that not even the most mild-mannered dissent could have stemmed the tide? Hard to say. Still, people listened, just as they did last June when the court ruled for same-sex marriage in Obergefell v. Hodges and Justice Scalia wrote that before he would ever join such an opinion “I would hide my head in a bag.”

Since everyone who ever met Justice Scalia is telling Scalia stories, I’ll tell mine. The last conversation we had took place in the spring of 2013, on a Washington-bound Amtrak Acela. I noticed him sitting across the aisle from me, wearing headphones and working. He didn’t notice me, and I didn’t bother him. But when we stood to collect our things, we found ourselves face to face. “So, Linda,” he said, “what do you think of the new pope?”

This was such an unexpected conversation opener that I didn’t know what to say. Pope Francis had been chosen just a few days earlier. I was hardly qualified to discuss the first Jesuit pope with a Jesuit-trained Supreme Court justice. “I’m surprised they picked someone so old,” I finally managed.

“Well, he’s a transitional figure,” Justice Scalia said.

I was too nonplused to ask him what he meant: transition from what to what? (I can only imagine how the deeply traditional, Latin Mass-attending Justice Scalia came to regard Pope Francis as time went by.) Our train pulled into Union Station and the moment passed.

Antonin Scalia was, as everyone has noted, a unique figure on the Supreme court. Will he prove to have been a transitional one as well? Will originalism, having served its purpose, now leave the stage?

For the court and the country, this is an important moment in every possible respect. As Justice Scalia’s colleagues gather later this week for the ceremonial marking of his passing, they will be taking stock of a life. Some of them, perhaps, will also be taking stock of the court, where it has been and where it goes now.