On the Scalia Era, with a Prediction
I suspect I’m not the only attorney who took Antonin Scalia’s death like the passing of a family member — not a close family member, but a distant older cousin, or a great uncle seen at family reunions but never actually spoken to. I met him once when he came to speak at Mercer Law when I was a student there, but I had no personal connection to him and it surprised me that I took his death personally.
Make no mistake, I do not share Justice Scalia’s authoritarian ideology, but no one can deny his influence on the professional life and imagination of any lawyer who came of age in the last decades of the Twentieth Century. You can’t read his opinions, dissents and concurrences without recognizing his absolute genius as a writer. I have a copy of his book, Reading Law, on Kindle. It’s actually a pleasant read, which is something I’ve never said about a legal treatise. Legal treatises may be thorough or concise, detailed, or any number of other positive adjectives, but not pleasantly readable. And I cannot deny that the book is a useful tool; it’s a practical handbook on the rules of textual construction for any practicing lawyer regardless of what one thinks of strict textual originalism.
The cable commentators, left and right, are eulogizing Scalia right now as the most significant voice on the Court in decades, and maybe even in U.S. history. Usually, a Court is named after its Chief Justice, and Scalia served on the Rehnquist and the Roberts Courts. My bet, however, is that history is going to remember both the Rehnquist and the Roberts Courts as the first two Courts of the Scalia Era.
No matter how mundane your practice, U.S. Supreme Court decisions find their way into your cases. And Scalia has dominated the Court for the last three decades. Reagan appointed him the year after I graduated from high school. It took me a decade of winding my way through literary studies, a hitch in the Navy, graduate studies in religion, and two years distracted by critical social theory before I found my way to law school.
By then, Justice Scalia had reached titanic status. In law school, I watched my professors struggle in utter disbelief with Scalia’s missionary advocacy for strict textualism. Like every other law student, I got caught up in the fray.
Of course, I loved the Talmudic word-play that Scalia’s strict textualism invites, and I remember that at one point I wanted the certainty that strict textualism seems to allow. But as I matured as an attorney, I saw that certainty in the law is an illusion. There is no certainty about anything other than the finality of an Order, and opinions interpreting the rules of court are even replete with argument about what that means. But the conclusions of a strict textualist’s analysis always land squarely in the middle of the ideological patch of ground where the strict textualist started.
A practicing attorney knows that reading law often demands something like strict textualism. Criminal statutes and private contracts, for example, have to be followed to the letter like computer code. But most statutes, and certainly the Constitution, will fall apart if you try to derive meaning from the placement of punctuation, or from the use of a gerund as opposed to an infinitive form, or from subordination of one clause to an independent clause rather than joining it as a second independent clause in parallel with the first independent clause.
If you try to read the Constitution like computer code, then you’ll find it riddled throughout with bugs, and the older it gets, the buggier it gets. By “bugs” I mean strings of computer code that just don’t work, strings of code that can’t be executed because they have terms with values that can’t be calculated, integers divided by zeros, the square roots of negative numbers, strings of code that conflict with other strings of code in the program, the compiler, the operating system, or even hardwired into the motherboard.
You can’t read the Constitution or most statutes like computer code because the Constitution has to have a meaning. You can demand literalism in criminal statutes because, if it’s buggy, you can call it unconstitutional for vagueness and throw out the charges to send a signal to the legislature that the statute has to be redrafted. A judge can find a statute unconstitutional, or the terms of a contract null, void and unenforceable, but a judge can’t declare the Constitution null and void because the Constitution is the fundamental ground of legal reality.
So Justice Scalia and the strict textualists were wrong. As I matured as an attorney, I learned about practical cynicism. I came to see strict textualism for what it actually is — a literary device that makes for wonderfully written, intellectually fascinating legal opinions, but it’s just a literary device. More than that, it’s a rhetorical trick — a good trick but still just a trick – for getting an argument onto paper.
I don’t attribute personal malice to Scalia, nor to the other strict textualists. They’re like psychics, most of whom really believe they are psychic, or astrologers and numerologists who really believe they’re tapping into deep and mysterious, but rational patterns that correspond between empirical phenomena. Strict textualists really think they’re digging deeply into the text of statutes and the Constitution and finding deep, original meaning there, but if they’re ever surprised, its not about the validity of their own position. I believe strict textualists are fooling themselves with their own magical reading tricks, or at least the honest ones are, and ever since Reagan elevated Scalia to the Supreme Court in 1986, they’ve been putting on a pretty impressive magic show for the rest of us.
Scalia’s power and presence on the bench make him and his legacy personal to every lawyer who’s come of age in the last three decades, and everybody is paying attention to the fight brewing over his replacement. I have a prediction (and hopefully somebody will remind me to look back in about a year to see how this has worked out):
Applying the rules of deepest cynicism that the Court has taught us in trial-by-fire over the last decades, I predict President Obama will successfully nominate a candidate to take Justice Scalia’s seat on the Supreme Court, where “successfully” means the Senate will approve Obama’s candidate. I predict Obama’s new Justice will be an ideological clone of Justice Kennedy. The next Associate Justice’s opinions will be pro-choice, though in the sense of Planned Parenthood v. Casey rather than Roe v. Wade, and pro-gay-marriage as recently established by Obergefell v. Hodges, but the new Associate Justice will also be pro-corporate in the shadow of Citizens United v. FEC.
If my prediction comes true, social liberalism will continue its advance and the Senate will grudgingly let it happen because in the bigger picture, it lets the right wing keep its main political tool —hijacking the Evangelical vote with rhetoric about threats to religious liberty. But the big issue won’t change. Privacy rights related to reproduction and to sex and gender orientation will be secure, but so will big money’s dominance over the political order. That is our puppet-masters’ true objective, regardless of whether they’re pulling the political strings to the left or to the right, and a Kennedy clone will let them keep their 5-4 majority on the U.S. Supreme Court.
I hope that a year from now, I can look back at this prediction and see that I was wrong.