Get over it!

Elena Kagan, Barack Obama’s nominee to replace the retiring Supreme Court justice John Paul Stevens, is scheduled to appear before the Senate Judiciary Committee in late June. Before she is confirmed by the committee, she will have to answer questions about her views on the constitution and her lack of judicial experience. One question she probably will not be asked, however, is what she meant by a statement she made about Justice Antonin Scalia in February 2007: ‘He is the justice who has had the most important impact over the years on how we think and talk about law.’ Next to Clarence Thomas, Scalia is the most conservative justice on the Supreme Court. Kagan is a Democrat and, we’re told, a liberal. Was she including herself in this claim? If so, how exactly has Scalia influenced her? If not, what does she think of his influence on others?

You won’t find answers to these questions in Kagan’s published work. She has had tenure at Harvard and the University of Chicago; she was the first woman to serve as dean of Harvard Law School and later as solicitor general of the United States. Yet we have no idea of her political convictions. That’s not unusual in a politician but a scholar with her record usually has a voluminous record of positions taken and arguments advanced. In an academic career of nearly two decades, Kagan has written (or cowritten) exactly four full-length scholarly articles and several shorter pieces, few featuring a distinctive or even audible personal voice. Jeffrey Toobin, the New Yorker’s legal correspondent, has known Kagan since they were first-year law students; he admits that ‘her own views were and are something of a mystery’ to him. ‘On the court,’ he adds, ‘Kagan will have to do something she’s not done before. Show her hand. Develop a clear ideology. Make tough votes. I have little doubt she’s up to the job, but am less clear on how she’ll do it.’ Tom Goldstein, the publisher of the SCOTUSblog, devoted to the goings-on at the Supreme Court, says: ‘I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.’ David Brooks, the conservative New York Times columnist, gets it right: ‘She seems to be smart, impressive and honest – and in her willingness to suppress so much of her mind for the sake of her career, kind of disturbing.’

Whatever her own views may be, Kagan is correct in her assessment of Scalia’s impact. If she’s a weather vane, he’s the weather. It’s not that Scalia’s particular positions have prevailed on the court. Some of his most famous opinions – against abortion, affirmative action and gay rights; in favour of the death penalty, prayer in schools and sex discrimination – have been dissents. His hand is more evident in the way his colleagues – and other jurists, lawyers and scholars – make their arguments.

Since he was appointed by Reagan in 1986, Scalia has been the most high-profile advocate of a school of jurisprudence known as originalism. Originalists hold that the words of the constitution mean what they meant when they were written and adopted into the text; judges must remain faithful to those original meanings, even if they run counter to contemporary manners and mores. This position, formulated by conservatives in response to the liberal jurisprudence of the 1960s and 1970s, has long been criticised by the left. As William Brennan, the liberal titan of the court in the second half of the 20th century, declared in 1985, ‘Those who would restrict claims of right to the values of 1789 specifically articulated in the constitution turn a blind eye to social progress and eschew adaptation of overarching principles to changes of social circumstance.’ Against the originalists, Brennan insisted that ‘the genius of the constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.’

Just a decade later, however, the liberal Laurence Tribe, paraphrasing the liberal Ronald Dworkin, wrote: ‘We are all originalists now.’ That’s even truer today. Where yesterday’s generation of constitutional scholars looked to philosophy – Rawls, Hart, occasionally Nozick, Marx or Nietzsche – to interpret the constitution, today’s looks to history, to the moment when a word or passage became part of the text and acquired its meaning. Not only on the right. Bruce Ackerman, Akhil Amar and Jack Balkin are just three of the most prominent liberal originalists writing today. Liberals on the court have undergone a similar shift. In his Citizens United v. Federal Election Commission dissent, Stevens wrote a lengthy excursus on the ‘original understandings’, ‘original expectations’ and ‘original public meaning’ – all words drawn from the originalist lexicon – of the First Amendment with regard to corporate speech. Stevens felt compelled by Scalia, to whom he referred several times, to demonstrate that the Framers did not believe that corporations had the same right to freedom of speech as individuals. Other scholars and jurists, not to mention the rightward drift of American politics since the Reagan era, have helped bring about this shift, but it is Scalia who has kept the originalist flame lit at the highest reaches of the law.

So the real question surrounding Kagan’s confirmation – and that of all nominees to the court in the foreseeable future – is: has Scalia influenced their views? If so, how, and if not, how would they argue against him? The rest is commentary.

In the United States, Tocqueville wrote, a federal judge, particularly a judge on the Supreme Court, ‘must know how to understand the spirit of the age’. The Supreme Court wields immense power in the American political system: the power to interpret the constitution, which is both sacred text and highest law of the land. Every so often, other officials express a measure of discontent. Obama, for example, used the occasion of his first State of the Union Address to chide the court for its decision in Citizens United, which, he said, would reverse ‘a century of law’ regarding corporate expenditure in federal election campaigns. But, on the whole, the right to interpret the constitution – and to strike down laws and overturn government actions in the name of the constitution – has rested with the court. While the persona of a Supreme Court justice may be ‘purely judicial’, Tocqueville concluded, his ‘prerogatives are entirely political’. If he is to exercise them effectively, he must be as culturally nimble and socially attuned as the shrewdest politician.

How then to explain the influence of Scalia, a man who proudly proclaims his disdain for ‘the spirit of the age’ – that is, when he is not embarrassingly ignorant of it? When in 2003 the Supreme Court voted to overturn state laws banning gay sex, Scalia saw the country heading down a slippery slope to masturbation. In 1996, he told an audience of Christians that ‘we must pray for the courage to endure the scorn of the sophisticated world,’ a world that ‘will not have anything to do with miracles’. In a dissent from that same year, he declared: ‘Day by day, case by case, [the court] is busy designing a constitution for a country I do not recognise.’ As the New York Times columnist Maureen Dowd put it, ‘He’s so Old School, he’s Old Testament.’

Scalia certainly has not charmed his way to influence. As Joan Biskupic documents in American Original, he is much given to mocking his colleagues’ intelligence and questioning their integrity. Sandra Day O’Connor, who sat on the court from 1981 to 2006, was a frequent object of his ridicule and scorn. Of one of her arguments he said that it was ‘devoid of content’. Whenever he’s asked about his role in the case that put George W. Bush in the White House, he sneers: ‘Get over it!’

Biskupic believes that he might have more influence if he trimmed his ideological sails. This seems unlikely, since it is through the sheer obduracy of his vision that he has made himself felt. If his version of originalism produces objectionable results – say, the execution of minors and the mentally retarded – too bad. ‘I do not think,’ he wrote in Nixon v. Missouri Municipal League (2004), that ‘the avoidance of unhappy consequences is an adequate basis for interpreting a text’.

Scalia takes special pleasure in unhappy consequences. He relishes difficulty and dislikes anyone who would diminish or deny it. In Hamdi v. Rumsfeld (2004), a plurality on the court took what he thought was a squishy position on executive power in wartime. The court ruled that the Authorisation for the Use of Military Force, passed by Congress after 9/11, empowered the president to detain US citizens as ‘illegal enemy combatants’ without trying them in a court of law and to detain them indefinitely. It also ruled, however, that such citizens were entitled to due process and thus could challenge their detention before some kind of tribunal. Scalia was livid. Writing against the plurality – as well as the Bush administration and fellow conservatives on the court – he insisted that a government at war had two, and only two, ways to hold a citizen: try him in a court of law or have Congress suspend the writ of habeas corpus; live by the rules of due process or suspend them. But the court weaselled out of that choice, making life easier for the government and itself. Congress and the president could act as if the writ were suspended, without having to suspend it, and the court could act as if it hadn’t been suspended thanks to the fake due process of military tribunals. More than colouring outside the lines of the constitution, it was the court’s ‘Mr Fix-It Mentality’, in Scalia’s words, its ‘mission to Make Everything Come Out Right’, that irritated him.

Scalia’s mission, by contrast, is to make everything come out wrong. A Scalia opinion, to borrow a phrase from Margaret Talbot, writing in the New Yorker, is ‘the jurisprudential equivalent of smashing a guitar on stage’. Scalia may have once declared the rule of law to be the law of rules – leading some to mistake him for a traditional conservative – but where others look for stabilising checks or reassuring supports, Scalia looks for exhilarating impediments and vertiginous barriers. Rules and laws make life harder, and harder is everything. ‘Being tough and traditional is a heavy cross to bear,’ he once told a reporter. ‘Duresse oblige.’ That, and not fidelity to the text or conservatism as it is usually understood, is the idée fixe of Scalia’s jurisprudence. In an age when the left lacks certainty and will, it can be a potent and intoxicating force.

Scalia was born in Trenton, New Jersey in March 1936, but was conceived the previous summer in Florence, where his father, a doctoral student in Romance languages at Columbia, was on a fellowship. ‘I hated Trenton,’ Scalia says; his heart belongs to Florence. A devotee of opera and hunting (‘he loves killing unarmed animals,’ Clarence Thomas says), Scalia likes to cut a Medician profile of great art and great cruelty. He peppers his decisions with stylish allusions to literature and history. Once upon a time, he enjoys telling audiences, he was too ‘faint-hearted’ an originalist to uphold the 18th century’s acceptance of ear notching and flogging as forms of punishment. Not any more: ‘I’ve gotten older and crankier.’

When Scalia was six, his parents moved to the Elmhurst section of Queens. His lifelong conservatism is often attributed to his strict Italian Catholic upbringing there; alluding to Burke, he calls it his ‘little platoon’. He attended Xavier High School, a Jesuit school in Manhattan, and Georgetown, a Jesuit university in Washington DC. (In his freshman year at Georgetown, the senior class voted Senator Joseph McCarthy Outstanding American.) But he comes to his ethnicity and religion with an attitude, lending his conservatism a distinctive and defiant edge. He claims the reason he didn’t get into Princeton, his first choice, was that ‘I was an Italian boy from Queens, not quite the Princeton type.’ Later, after Vatican II liberalised the liturgy and practices of the Church, including his neighbourhood church in suburban Virginia, he insisted on driving his brood of seven children miles away to hear Sunday mass in Latin. He did the same thing later on in Chicago, only this time with nine children in tow. Explaining how he and his wife managed to raise conservative children during the 1960s and 1970s (no jeans in the Scalia household), he says:

They were being raised in a culture that wasn’t supportive of our values, that was certainly true. But we were helped by the fact that we were such a large family. We had our own culture … The first thing you’ve got to teach your kids is what my parents used to tell me all the time: ‘You’re not everybody else … We have our own standards and they aren’t the standards of the world in all respects, and the sooner you learn that the better.’

Scalia’s conservatism, on closer inspection, is more a Thoreauvian counterculture, a retreat from and rebuke to the mainstream, not unlike the hippie communes and groupuscules he once tried to keep at bay. It is not a conservatism of tradition or inheritance, but of invention and choice, informed by the spirit of rebellion he so plainly loathes – or thinks he loathes – in the culture at large.

At one point in her account Biskupic writes: ‘Yet even as Scalia in middle age was developing a more rigid view of the law, he still had bursts of idealism.’ But Scalia’s rigidity is not opposed to his idealism, it is his idealism. His ultra-conservative reading of the constitution reflects neither cynicism nor a conventional cast of mind; orthodoxy and piety are, for him, the essence of dissidence and iconoclasm. No charge grieves him more than the claim, rehearsed at length in his 1995 Tanner Lectures at Princeton, that his philosophy is ‘wooden’, ‘unimaginative’, ‘pedestrian’, ‘dull’, ‘narrow’, ‘hidebound’. Call him a bastard or a prick, a hound from hell or a radical in robes. Just don’t say he’s a suit.

There’s certainly nothing tradition-bound about the way he interprets the constitution. Originalism, in his interpretation (it’s also known as ‘original meaning’ or ‘original public meaning’), should not be confused with deference to the intentions of the Framers. While the first group of originalists in the 1970s did claim that the court should interpret the constitution according to the intentions of the Framers, later originalists like Scalia have had to revise that position in response to the criticisms it received. The intentions of a single author are often unknowable; in the case of a text with many authors, intentions are even harder to pin down. And whose intentions should count? Those of the 55 men who wrote the constitution, the 1179 men who ratified it or the even greater number of men who voted for the men who ratified it? Scalia’s response was to say that it is not intentions that govern us: it is the constitution, the text as it is written and rewritten through amendment. But how do you recover the meaning of a text that can swerve from sweeping generality in one sentence (‘the executive Power shall be vested in a President’) to ordinary precision (presidential terms are four years) in the next? Establish what those words meant to people at the time they were adopted, Scalia argues. See how they were used: consult dictionaries, other usages in the text, influential writings of the time. Consider the context of their utterance, how they were received. From these sources, construct a bounded universe of possible meanings. Words don’t mean one thing, Scalia concedes, but neither do they mean whatever one wants them to. Judges should read the constitution neither literally nor loosely but ‘reasonably’ – that is, in such a way that each word or phrase is construed ‘to contain all that it fairly means’. And then, somehow or other, apply that meaning to our own very different times.

Scalia justifies his originalism on two grounds. In a constitutional democracy it is the job of elected representatives to make the law, the job of judges to interpret it. If they consult their own morals or their own interpretations of the country’s morals, they are no longer judges but lawmakers, and often unelected lawmakers at that. By tying the judge to an unchanging text, originalism protects us from judicial despotism. So Scalia’s first concern is tyranny from the bench; his second is anarchy on the bench. Once we abandon the idea of an unchanging constitution, he says, we open the gates to any and all modes of interpretation. When ‘every day’ is ‘a new day’ in the law, it ceases to be law. He has in mind what he sees as a brief, terrible time – from the Warren Court of the 1960s to the Burger Court of the 1970s – when in the name of a ‘living constitution’ left-wing judges remade (or tried to remake) the country in their own image, forcing an agenda of social democracy, sexual liberation, gender equality, racial integration and moral relativism down the country’s throat. Ancient words acquired new implications and insinuations: suddenly ‘due process of law’ entailed a ‘right to privacy’, codes for birth control and abortion (and later gay sex); ‘equal protection of the laws’ required one man, one vote; the ban against ‘unreasonable searches and seizures’ meant that evidence obtained unlawfully by the police could not be admitted in court; the proscription against the ‘establishment of religion’ forbade school prayer. For originalists, what was most outrageous about this revolution from above – beyond the left-wing values it foisted on the country – was that it was out of keeping with the way the court traditionally justified its decisions to strike down laws.

Before the Warren Court, according to Scalia, or before the 1920s (it’s never clear when the rot set in), everyone was an originalist. Which is not quite the case. Expansive constructions of constitutional meaning are as old and as august as the founding itself. And the theoretical self-consciousness Scalia brings to the table is a 20th-century phenomenon. In fact, he often sounds like a comparative literature student c.1983. He says it’s a ‘sad commentary’ that ‘American judges have no intelligible theory of what we do most’ and ‘even sadder’ that the legal profession is ‘by and large … unconcerned with the fact that we have no intelligible theory’. Conservatives used to mock that kind of theory fetishism as the mark of an inexperienced and artless ruling class. Even an avowed originalist like Robert Bork, unsuccessfully nominated by Reagan to the Supreme Court in 1987, concedes that ‘self-confident legal institutions do not require so much talking about.’ But Scalia and Bork forged their ideas in battle against a liberal jurisprudence that was self-conscious and theoretical, and have come out of that battle looking more like their enemies than their friends. Bork freely admits that it is not John Marshall or Joseph Story – the traditional greats of American judicial review – to whom he looks for guidance: it is Alexander Bickel, arguably the most self-conscious of the 20th-century liberal theoreticians, who ‘taught me more than anyone else about this subject’.

Like many originalists, Scalia claims that his jurisprudence has nothing to do with his conservatism: ‘I try mightily to prevent my religious views or my political views or my philosophical views from affecting my interpretation of the laws.’ Yet he has also said that he learned from his teachers at Georgetown never to ‘separate your religious life from your intellectual life. They’re not separate.’ Only months before Reagan nominated him to the Supreme Court, he admitted that his legal views were ‘inevitably affected by moral and theological perceptions’. If his conservatism has little to do with advancing the immediate interests of the Republican Party, it has even less to do with averting the threats of judicial tyranny and anarchy. It is a conservatism that would have been recognisable to Social Darwinists of the late 19th century, freely mixing the pre-modern and the progressive, the archaic and the advanced. It’s not to be found in the obvious places – in his opinions about abortion, say, or gay rights – but in a dissenting opinion about that most un-Scaliaesque of places, the golf course.

Casey Martin, a professional golfer, could no longer walk the 18 holes of a golf course because of a degenerative disease. After the PGA refused his request to use a golf cart in one of its tournaments, a federal court issued an injunction, based on the Americans with Disabilities Act, allowing Martin to use a cart. By the time the case reached the Supreme Court, the legal questions had boiled down to these: is Martin entitled to the protections of the ADA? Would allowing him to use a cart ‘fundamentally alter the nature’ of the game? Ruling 7-2 in Martin’s favour (with Scalia and Thomas in dissent) the court said yes to the first and no to the second.

In answering the first question, the court had to contend with the PGA’s claim that it provided entertainment and that only customers of that entertainment were entitled to the ADA’s protection. Martin was not a customer; he was a provider. The court, however, insisted that Martin was a customer: he and the other contestants had to pay $3000 to try out for the tournament. Some customers paid to watch, others to compete. The PGA could not discriminate against either.

Scalia was incensed. It ‘seems to me quite incredible’, he said, that the majority would treat Martin as a customer of ‘competition’ rather than a competitor. The PGA sold entertainment, the public paid for it, the golfers provided it. Martin was no more a customer than an actor who shows up for an open audition. In the majority position, Scalia saw something more pernicious than a wrongly argued opinion. He saw a threat to the status of athletes everywhere, whose talent and excellence would be smothered by the bosomy embrace of the court, and to the idea of competition more generally.

Games hold a special value for Scalia: they are the space where inequality rules. They demonstrate and celebrate ‘the uneven distribution of God-given gifts’. ‘The very nature of competitive sport,’ he says, ‘is the measurement of unevenly distributed excellence.’ In the court’s translation of competitor into customer, Scalia saw the forced entry of democracy (a ‘revolution’, actually) into this venerable preserve of inequality. With ‘Animal Farm determination’, the court had destroyed a unique opportunity to see how unequal we truly are. ‘The year was 2001,’ the last sentence of Scalia’s dissent reads, and ‘everybody was finally equal.’

To answer the question of whether riding in a golf cart ‘fundamentally’ alters the ‘nature’ of golf, the majority undertook a thorough history of the rules of the sport. It then formulated a two-part test for determining whether riding in a cart would change the nature of golf, which necessarily demanded an inquiry into what that nature was. In seeking to discover the essence of golf, Scalia claimed, the court was looking for something that does not exist. ‘To say that something is “essential” is ordinarily to say that it is necessary to the achievement of a certain object.’ But games ‘have no object except amusement’. Lacking an object, they have no essence. It’s thus impossible to say whether a rule is essential. ‘All are arbitrary,’ he wrote of the rules, ‘none is essential.’

It’s difficult to reconcile this hostility to the idea of golf’s essence with his earlier statements about ‘the very nature of competitive sport’ being the expression of divinely ordained inequalities. But the contradiction neatly reveals the twin poles of Scalia’s faith: a belief in rules as arbitrary impositions of power, to which we must nevertheless submit; and a belief in rules, zealously enforced, as a guardian of our ineradicable inequality. Scalia, it turns out, is not nearly the iconoclast he thinks he is. Far from telling ‘people what they don’t like to hear’, as he claims, he tells the powerful exactly what they want to hear: that they are superior and that they have a seat at the table because they are superior. It’s not the alienness but the appositeness of Justice Scalia, the way he reflects rather than refracts the spirit of the age, that explains his high place in our constitutional firmament. Just ask Elena Kagan, if she’ll tell you.