Month: July 2014

The Clock May Be Ticking on Affirmative Action

In 2oo3, a sharply divided Supreme Court upheld the University of Michigan Law School’s affirmative action program.  Justice Sandra Day O’Connor, at the time the high Court’s swing vote, wrote that she hoped “25 years from now, the use of racial preferences will no longer be necessary.”  However, the current Supreme Court may very well cut that timeline in approximately half.

Recently, a federal court of appeals upheld, for the second time, the University of Texas’s undergraduate affirmative action program.  The court of appeals had previously been scolded by the Supreme Court for not making a more searching inquiry to determine if the university could have utilized an admissions process that took race into account less prominently (or not at all).  The Supreme Court’s decision sending the case back to the court of appeals also tightened the noose on affirmative action in the higher education context by instructing lower courts that the government — here, the public university — should be given little to no deference justifying its use of race in admissions.

On the second go-around, the court of appeals attempted to placate the Court.  In a lengthy opinion, the court of appeals scoured the record and determined that Texas’s use of race was “necessary” and there was a “want of workable alternatives that would not require even greater use of race.”  Moreover, the court found that the plaintiff, Abigail Fisher, would not have been admitted to Texas in any event, race-conscious program or not.  Fisher has since graduated from Louisiana State University.

However, the court’s three-judge panel was split 2-1, with the most conservative judge dissenting (two of three judges were appointed by Republicans).  Judge Garza criticized the majority for not recognizing the Supreme Court’s “new” approach to affirmative action in higher education and stated the he would have found Texas’s program unconstitutional.

Both opinions seemed designed to appeal to Justice Anthony Kennedy.  Critically, Justice Kennedy dissented in the Michigan Law School case and it was he who wrote the Supreme Court’s opinion the first time the Texas case came before the high Court.

For her part, Fisher has stated that she is committed to her lawsuit and will likely ask the Supreme Court to review the court of appeal’s latest decision.  And therein lies the rub.  There are four justices — Chief Justice John Roberts, Justice Antonin Scalia, Justice Clarence Thomas and Justice Samuel Alito — likely to vote to strike down Texas’s affirmative action program.  If Justice Kennedy is not pleased with the court of appeal’s second effort there is a likelihood that affirmative action in higher education will be ruled unconstitutional. The Roberts Court has a history of warning government actors before it rules against them.  For example, the Court’s majority, before striking down a portion of the Voting Rights Act, had explicitly warned Congress in a previous ruling that it found certain of the Act’s provisions problematic.  Here, Justice Kennedy has already issued his warning regarding affirmative action, it may very well be that he follows through on it.

Rethinking Justice Scalia’s Legacy

Bruce Allen Murphy’s new biography of Justice Scalia offers an opportunity to think about Scalia’s legacy and his place in Supreme Court history.  Murphy’s book is far from perfect — it engages in too much psychoanalysis of Scalia, seems to believe that Scalia could have crafted a consistent five-vote conservative majority if he had simply been more congenial to Justices O’Connor and Kennedy,* and is off-base regarding Scalia’s alleged evolution in his constitutional thinking. That said, the book is deeply researched and a useful first stab at a biography of Scalia that is not hagiography.**


*It is difficult to discern why Murphy, who teaches constitutional law (he’s a political scientist), would actually believe this. Murphy invokes Justice Brennan and the famous “rule of five,” but Brennan’s Warren Court colleagues were more ideologically cohesive. Justice Scalia is one of the most conservative justices to ever serve on the Court. Justices O’Connor and Kennedy simply were not as conservative as Scalia. No amount of congenial cajoling would have changed the results in, for example, Lawrence or Casey.

**There have been books written by Scalia’s ideological fellow travelers: e.g., a collection of Scalia’s dissents, described as the product of the “Supreme Court’s Wittiest, Most Outspoken Justice,” along with an unpersuasive sympathetic attempt to synthesize Scalia’s jurisprudence into a coherent whole.  And this seems as good a place as any to note that National Review‘s Ed Whelan, a former Scalia clerk, has brutalized, unfairly, Murphy’s book with personal, ad hominem attacks in a manner reminiscent of Scalia’s dissents.


Murphy’s conclusion is that Justice Scalia’s legacy will be originalism.  Murphy calls Scalia the “king” of the originalists. Murphy is far from alone on this point — almost every assessment of Scalia has focused at least in part on originalism. Among commentators, there seems to be no doubt that Scalia’s legacy will be the justice who did more than any other to give voice to this constitutional theory. Law professor Jamal Greene places Scalia at the center of the story of “original public meaning” originalism. Steven Teles tells the story of of how Scalia did away with original intent originalism at a Federalist Society meeting, opening the field for his coinage: original public meaning (the formulation most academic originalists now subscribe to). Scalia’s opinion in Heller is held up as the paragon of original public meaning originalism. Though maybe not the best reading of such, Justice Stevens’ dissenting opinion in Heller was also remarked upon as an attempt to best Scalia at his historical game. Scalia himself has deemed Heller his “legacy opinion.”

But it would be myopic to focus solely on Heller and Scalia’s earlier originalist forays. Though Scalia has been on the Court for nearly three decades, he returns to the same themes in his opinions again and again. Consider these excerpts from Scalia’s lengthy dissent in Casey:

But the Court does not wish to be fettered by any such limitations on its preferences . . . . The emptiness of the “reasoned judgment” that produced Roe is displayed in plain view by the fact that . . . the best the Court can do to explain how it is that the word “liberty” must be thought to include the right to destroy human fetuses is to rattle off a collection of adjectives that simply decorate a value judgment and conceal a political choice. . . . It is not reasoned judgment that supports the Court’s decision; only personal predilection.

Consciously or not, the joint opinion’s verbal shell game will conceal raw judicial policy choices concerning what is “appropriate” abortion legislation.

The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life-tenured judges — leading a Volk who will be “tested by following,” and whose very “belief in themselves” is mystically bound up in their “understanding” of a Court that “speak[s] before all others for their constitutional ideals” — with the somewhat more modest role envisioned for these lawyers by the Founders.

Scalia on abortion does not differ much from Scalia on another hot-button culture war issue: LGBT rights. Here are some excerpts of Scalia’s thoughts on Justice Kennedy’s majority opinion in Lawrence v. Texas:

There, when stare decisis meant preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it . . . . What a massive disruption of the current social order, therefore, the overruling of Bowers entails . . . .   It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed . . . What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change . . . .  But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.

Fast-forward to a little over a decade later, and Scalia’s criticism was substantively the same. As Scalia wrote in dissent in United States v. Windsor regarding DOMA:

All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence — indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

And Scalia’s legal realism, nearly always pointed in the opposite ideological direction, is repeated in the death penalty context in his dissent in Atkins v. Virginia:

Today’s decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it, like all of that jurisprudence, find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes regarding the conditions that render an otherwise just death penalty inappropriate. Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.

A veritable mountain of similar excerpts are available — as noted above, Scalia has been on the Court for nearly 30 years. One can see that beyond originalism, Scalia’s leitmotifs are the “imperial judiciary,” justices simply voting their policy preferences, and the Court creating “new rights” out of whole cloth. In other words, Scalia has consistently argued for decades that the justices are attitudinalists (when they disagree with him). To the sympathetic public, which consists of Republican politicians, conservative issue activists, high-information GOP voters and other GOP elites, Scalia’s message is clear: liberal justices invent non-existent constitutional rights that we (read conservatives) do not agree with.  Of course, Scalia does not believe that he is voting his ideological preferences, but this is largely beside the point, and not just because his conservative audience does not either.

And Scalia’s opinions seem designed to reach this audience. That is, rather than writing for the history books as Justice Kennedy seems to do, Scalia’s fiery rhetoric seems intended to land in the pages of the papers of record, Fox News, and the larger conservative media machine. Indeed, in a New York interview Scalia revealed that his “media diet” largely consists of right-wing news outlets. Scalia is a skilled rhetorician and knows how to turn a phrase — often a superfluous learned reference (“Volk,” “kulturkampf,” “Marquis of Queensbury rules,” “hostes humani generis“) that will catch a journalist’s eye.

What is more, it is arguable that since Scalia’s putative but plausible “charm offensive” to be appointed Chief Justice failed in 2005, his rhetoric has been less restrained and more openly political. For example, in what appears to be dog-whistling, Scalia wrote in Brown v. Plata: “many [of the released prisoners] will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.”  This rhetoric — pointless to any legal issue — seems meant to create a specific, if largely anachronistic and inaccurate, mental image in the reader’s mind.

Another example. Judge Richard Posner, who has emerged in recent years as one of Scalia’s harshest critics (Scalia has retorted, somewhat lamely, by pointing out that Posner is only a court of appeals judge), took Scalia to task for his oral dissent cum remarks from the bench regarding immigration in Arizona v. United States, a polarizing topic in the 2012 presidential campaign.  Scalia’s remarks were pointedly political in nature —  criticizing Obama’s immigration policy — and in line with the more conservative wing of the Republican party’s stance on immigration.  It seems difficult to view the remarks through any other lens than Scalia’s desire to inject himself into the political debate on immigration.

As the New York Times reported:

“He jumped the shark here,” said Gabriel J. Chin, a law professor at the University of California, Davis. “Harkening back to the ‘good old days’ of the law of slavery impeaches his position. He practically cited Dred Scott. The whole thing was intemperate, a screed.”

We might, then, begin to reassess what Scalia’s legacy will be. Originalism has, for now, claimed the mantle as the ruling theory of constitutional interpretation: “we’re all originalists now,” they like to say (a bit self-servingly, perhaps) or “it takes a theory to beat a theory” — the implicit claim being that originalism stands unchallenged. Even liberal legal scholars like Jack Balkin have hopped on the originalism bandwagon, creating a progressive articulation of originalism.  In sum, where ever one looks, Scalia’s stamp of originalism seems to have made an indelible mark on the legal world. This is why it is the received wisdom that Scalia’s legacy will be originalism.

But if both Jack Balkin and Antonin Scalia are originalists, the term has lost any real meaning beyond some vague thoughts about commitment to text and history. What we are really watching is a battle for control of the terms of constitutional theory and the concomitant debate — the originalists, the conservative ones, won the first few rounds, now the progressives are fighting back.  Balkin, to his credit, is explicit about this.  Indeed, the “new textualism,” another attempt to win control of the terms of the debate, was coined by liberal lawyer, Doug Kendall. Contra Greene, originalism is not becoming “depoliticitized,” it is becoming more politicized. What is more, if we pull back the constitutional theory curtain further, originalism, old and new, will eventually fade away as a scholarly movement, just like (say) neutral principles. Balkin hints as much in his own work that a new theory will take originalism’s place in a generation or so.

Thus, looking at Scalia’s historical legacy through a wider lens, it may be that his legacy will be the “king” of the conservative legal realists, a justice who has done as much as any other to give the attitudinalists succor that judging is no more than policy preferences dressed up in legal jargon. Put another way, Scalia might be more profitably viewed as a political entrepreneur who happened to wear a judicial robe, rather than as (merely?) an influential Supreme Court justice.

For example, in addition to the consistent themes in his opinions — where Scalia lashes the liberal majority for simply writing their own liberal views into the Constitution; nine (or five) unelected lawyers telling the “people” what is and is not permissible, while he stands athwart constitutional history yelling “Stop” (Scalia admired William F. Buckley, Murphy tells us) — Scalia rather plainly loves the extra-judicial limelight. As Murphy shows, in contrast to years gone by, Scalia has given his constitutional interpretation “stump speech” so many times that the media has largely ceased to cover it. The central theme in Scalia’s stump speech is that the Constitution is “dead,” in order to contrast himself to the (liberal) living constitutionalists (or non-originalists) who are creating or extending rights that various factions of the New Right are opposed to: abortion, limiting the death penalty, LGBT rights & c.

Indeed, Scalia, after 2001, in what seems to be no coincidence, unveiled a stump speech entitled: “Mullahs of the West: Judges as Authorative Expositors of the Natural Law?” Scalia’s speech analogized alleged “[liberal] judicial hegemony” with Islamic fundamentalism. This can be characterized as a more sophisticated form of conservative media entrepreneurs’ (e.g., Ann Coulter) rhetoric.  But Scalia is not above Coulterian rhetoric: Scalia has also labeled living constitutionalists “idiots.” The headline on was: “Scalia: Non-Originalists Are ‘Idiots.'”

And when one examines the larger political discourse outside the Supreme Court, it is clear that Scalia’s extra-judicial speeches have had an effect on the conservative milieu. Rush Limbaugh riffs on and champions originalism.  James Dobson, of Focus on the Family and a leading social conservative leader, has endorsed originalism and textualism.  A group of political scientists and a law professor has shown that when polled, people who self-identify as originalists, take views on constitutional and political issues that are consonant with the Republican Party’s platform.  Reva Siegel and Robert Post have written an interesting article arguing that in the political domain originalism serves as the New Right’s own version of a living constitution. Finally, Scalia’s Romer dissent — where he contended that one should be able to support the Colorado amendment at issue without being accused of “bigotry,” and calling the majority’s view as “insulting” cultural conservatives’ views on morality — was picked up by then-Representative Charles Canady, a Republican who is now on the Florida Supreme Court.  Canady said in a floor speech: “We have heard that those who oppose same-sex marriage and those who support this bill are . . . bigoted, despicable, hateful, ignorant . . . I believe that those words are an insult to the American people . . . .”

Given this, perhaps Scalia’s chief contribution might be giving the New Right a lingua franca to talk about the constitutionalization of certain political issues. Perhaps all this shows how Scalia has helped create what Greene has called the “Republican or conservative brand,” of which originalism is now a component part.  Originalism — not simply the intramural debate in the academy — has become shorthand for conservative politicians, voters and activists for “Supreme Court decisionmaking I agree with.” Originalism’s ascendance tracks the ascendance of the New Right regime.  I would submit that its star will implode as the New Right regime begins to decay.

Scalia has been important to originalism, both by inspiring academics to write (more) about it, but helping inject the parlance into conservative parlance (with all apologies to Attorney General Ed Meese). But maybe Scalia’s legacy, at least a significant component of it, is that of a political entrepreneur who happens to wear a judicial robe — a star in the constellation of the New Right regime — rather than merely the “head originalist” or an influential American jurist.