Scalia Dissents: Writings of the Supreme Court’s Wittiests, Most Outspoken Justice
edited by Kevin A. Ring
Regnery. 256 pp. $45.90
During his almost twenty-year tenure on the United States Supreme Court, Justice Antonin Scalia has led a continuous assault on judicial tinkering. The rule of law, he has argued, demands that we be bound by the text of the law”not by evolving social standards, not even by some elusive authorial intent, but by the actual words of the Constitution and of the statutes passed by state and federal legislatures.
Scalia has articulated this textualist philosophy in his frequent public lectures, in his penetrating book A Matter of Interpretation , and in his many Supreme Court opinions. In Scalia Dissents: Writings of the Supreme Court’s Wittiest, Most Outspoken Justice , attorney Kevin A. Ring collects some of the most memorable of these opinions. The stated aim of this volume is to bring to a wider audience “some of the most noteworthy, colorful, and entertaining opinions ever written by a United States Supreme Court Justice.” More important, the collection traces the development of Scalia’s view”derided by progressive law professors and controversial even among conservatives”that, in Ring’s words, “laws”and especially that supreme law known as the Constitution of the United States”say what they mean and mean what they say.”
Appointed in 1986, Scalia has been on the Court long enough to have tackled virtually every important legal issue of our day: abortion, religious liberty, race and gender equality, gay rights, and separation of powers, among others. The opinions collected here”some dissenting from the majority of the Court, others concurring in judgment but rejecting the majority’s reasoning”show how Scalia applies his textualism to these issues, and how it differs from competing theories of interpretation, most notably the “living Constitution” view favored by many on the left and the varieties of intentionalism favored by many conservatives and moderates. The collection confirms Scalia’s reputation as a trenchant critic of judicial arrogance and as a dogged defender of the Constitution as it was originally understood.
In Scalia’s view, the Court has for a half-century indulged in one project of social engineering after another, purporting to find an assortment of previously unknown rights squirreled away beneath the visible surface of the Constitution. The Court’s fondness for “legislating from the bench,” as some describe it, reached a crescendo in 1973, when the majority declared a constitutionally protected right to abortion, thereby invalidating statutes in forty-six states and establishing itself as the sole arbiter of the nation’s abortion laws. While some have suggested that the Court has reined in its activist tendencies over the years”and there have indeed been heartening signs, such as the elevation of William Rehnquist, a dissenter in Roe v. Wade (1973), to the position of Chief Justice the same year Scalia joined the bench”Scalia’s recent opinions remind us that these tendencies often prevail.
Less than two years ago, for example, the Supreme Court ruled in Lawrence v. Texas (2003) that laws prohibiting sodomy are unconstitutional, citing the same privacy protections it used to justify its decision in Roe . While the Lawrence decision came as no great surprise, the rationale expressed in Justice Anthony Kennedy’s majority opinion is unexpectedly sweeping in its implications. In an explosive dissent, which Ring includes, Scalia excoriates Kennedy for his contention that enforcement of a majority’s moral beliefs does not advance any legitimate state interest. Scalia writes:
Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority’s belief that certain sexual behavior is “immoral and unacceptable” constitutes a rational basis for regulation . . . . State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of [the Court’s previous] validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision.
In his concurrence in the earlier Barnes v. Glen Theatre (1991), which upheld the constitutionality of an Indiana public nudity law, Scalia had ridiculed “that Thoreauvian ‘you may do what you like so long as it does not injure someone else’ beau ideal” which some have tried to read into the Constitution. Scalia argued that such a principle, if applied, would spell the death of all laws enforcing public morality. Twelve years later, this “beau ideal””known to philosophers as the utilitarian harm principle”found its way into the majority opinion in Lawrence . As Scalia flatly observes, “this effectively decrees the end of all morals legislation.”
As Scalia’s dissent makes clear, the majority opinion in Lawrence epitomizes everything that is wrong with the contemporary Court”its arbitrariness, its contempt for democratic governance, its constant readiness to fashion new constitutional rights out of whole cloth. Never mind that in Bowers v. Hardwick (1986), only seventeen years earlier, the Court had voted to uphold a Georgia anti-sodomy statute, or that in Planned Parenthood v. Casey (1992), eleven years earlier, it had expressed the most solemn devotion to stare decisis . Now, the Court tells us, it has discerned an “emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” The Texas law is suddenly unconstitutional. The Lawrence decision, Scalia seems to suggest, is not just the result of poor interpretative technique or pragmatic text-wrangling”it is a case of naked judicial legislation: “The Court has taken sides in the culture war.”
The notion that an “emerging awareness” can reveal hitherto unknown rights is, of course, the central claim of the famous “living Constitution” theory. The problem with this open-ended interpretive model is that it invites the rule of judges. After all, who gets to decide which “awarenesses” are emerging? Scalia insists repeatedly that malleable judicial standards”reflected not only in the Court’s appeals to evolving social norms, foreign courts, and living documents, but also, in some cases, in its reliance on authorial intent”give the Court carte blanche to impose its arbitrary will. What Scalia says in his dissent to Morrison v. Olson (1988) could apply to many of the Court’s decisions: “Evidently, the governing standard is to be what might be called the unfettered wisdom of a majority of the Court, revealed to an obedient people on a case-by-case basis. This is not only not the government of laws that the Constitution established; it is not a government of laws at all.” Scalia suggests that Kennedy, O’Connor, and other Justices adhere to what might be described as a sort of legal Gnosticism, according to which the meaning of the Constitution is to be found not in what its text overtly states but in some mysterious message conveyed only to black-clad savants.
Perhaps the happiest outcome of the Court’s many miserable decisions is that they provide Scalia with occasions for writing opinions that are both persuasive and entertaining. In one unforgettable passage, Scalia compares the much-criticized Lemon test”which the Court uses now and then in its jurisprudence dealing with the “establishment” provision of the First Amendment”to a stumbling movie monster that “repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried.” In his dissent in Casey Martin v. PGA Tour, Inc. (2001), the Justice ridicules the Court for involving itself in the rules of golf. The Framers, he says, must have “fully expected that . . . judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer?” Passages such as these guarantee a wide readership for Scalia both within and outside the legal community.
Despite the appeal of the opinions themselves, however, and despite the very useful background information provided by Ring, the collection is not a complete success. For starters, the book’s title is a bit misleading. It invites readers to assume that Scalia is always on the losing side of a case or, worse, that Scalia is intentionally disagreeable. In fact, several of the opinions included here are concurrences, either in part or in full. Some of Ring’s editorial choices are also dubious”for instance, his inclusion of some long decisions that are likely to bore or bewilder his intended audience. Scalia’s dissents in Morrison v. Olsen and United States v. Virginia (1996) are no doubt important, but each is nearly forty pages in length and full of details unlikely to interest the general reader.
More disappointing, Ring misses opportunities to clarify Scalia’s textualist theory for readers. Although he competently summarizes this theory in his introduction, Ring does little to distinguish textualism from originalism in general or from originalist intentionalism in particular. Readers who are generally sympathetic to the attempt to return to an original understanding of the Constitution may not be aware that Scalia rejects the dominant theory about how this is to be done”intentionalism. For him, the intentions of the Framers are almost as easily manipulated for partisan purposes, and thus almost as susceptible to abuse, as the living-Constitution theorists’ evolving standards of decency. We must look instead to something more publicly accessible”that is, to the language of the Constitution itself and the conventions governing that language. Ring fails to give readers any sense of what’s at stake in this important debate between intentionalism and textualism. Perhaps Ring’s greatest shortcoming as an editor is that he is too much the cheerleader. There is, of course, much to cheer about in these opinions, but a more serious engagement with Scalia’s critics would have resulted in a richer treatment of his ideas.
Still, Ring’s project is a worthy one. This well-organized volume gives readers not only an introduction to Scalia’s thought but a guided tour through the difficult issues the Supreme Court has addressed in recent years. Read together, Scalia’s opinions are a bracing antidote to the legal opportunism that has infected many of the Court’s recent decisions. They are also a troubling reminder that the infection continues to spread.
Maxwell and Elizabeth Goss are doctoral candidates in philosophy at the University of Texas at Austin and Wilbur Fellows at the Russell Kirk Center for Cultural Renewal.