September 29, 2005

When the Court will "become unpoliticized," per Scalia.

Yesterday, Scalia and Breyer debated at Harvard Law School (via How Appealing). Much of it is more of the usual stuff about citing foreign law, but this is interesting:
During a question-and-answer session, one student asked the panel about the potential political pressures involved in the controversial Bush v. Gore case. Frankfurter Professor of Law Alan M. Dershowitz had suggested that he direct the question toward Scalia, he explained.

“He’s still mad at me, isn’t he?” Scalia retorted jokingly, before adding, more seriously, that he had not witnessed any justice take into account “political considerations” in deciding the case.

Breyer added that he had never seen any evidence of politics influencing a court decision. Even so, he said, ideological beliefs occasionally surface.

Scalia said that the politicization of the Supreme Court could be attributed to the emergence of a “judicial philosophy which says the Constitution is indeterminate.”

“It will become unpoliticized, as it relatively used to be, as soon as we go back to saying the Constitution means what it says, and it means what it meant when it was adopted,” he said.
Seems highly unlikely. By the way, Roberts -- the Chief Justice -- never embraced that view of the judicial role.


Ann Althouse said...

It'll never happen.

Simon said...

Whether it'll never happen or not, what say we give it a go?

Anonymous said...

Vincent Bugliosi, former California prosecutor whose convictions sent Charles Manson and other murderers to prison, goes much further than those tepid editorialists. In Bugliosi's view, the conduct of the five conservative members of the court (Rehnquist, Scalia, Thomas, O'Connor and Kennedy) bordered on treason. In his article, published in The Nation, Feb. 5, he wrote, "It misses the point to argue that the five justices stole the election only if it turns out that Gore overcame Bush's lead in the undervote recount. We're talking about the moral and ethical culpability of these justices ... To judge these justices by the final result rather than their intentions at the time of their conduct would be like exonerating one who shoots to kill if the bullet misses the victim."

There is virtual unanimity among law professors and jurists, conservative as well as liberal, who have condemned this action by the Supreme Court's conservative majority. Justice Scalia's principal justification for issuing a stay on the Florida recount resumption, permitted by the Florida Supreme Court, was that the recount would "threaten irreparable harm to petitioner (Bush) ... by casting a cloud upon what he claims to be the legitimacy of his election." Scalia assumes here that Bush has won, but it is also clear that he feared that if the recount continued, the election could go to Gore. Taking issue with this hollow opinion, judicial conservative Terrance Sandlow stated, "The balance of harms so unmistakably were on the side of Gore," and further, the stay was "an unmistakable partisan decision without any foundation in law."

Simon said...

This is another marvellous Scalia-ism: "I agree that if you believe in a living Constitution...then of course consult foreign law. Why not? I mean, consult a Ouija board."

TELL me there's a full transcript of this. ;)

I actually very much want to ask Justice Scalia - off the record - how he viewed Bush v. Gore, how he manages to make it fit into all his previous equal protection jurisprudence. I've been looking, and I can't figure it out. Unfortunately, he doesn't seem to make a habit of speaking at IU.

He is, of course, completely correct, in my view. If the judiciary have the role of saying what the law is (which they do), and the constitution is not fixed in meaning (which it is, IMO), then almost by definition there will be a continuing battle over whose agenda the judges will serve, because they are necessarily serving someone's.

Anonymous said...

When Roberts said his job was "to call balls and strikes," he was asking the Senate Judiciary Committee to ask itself, What is a strike? Originalists in these matters might say that a strike is what its 1887 rulebook definition says it is, "a pitch that 'passes over home plate not lower than the batsman's knee, nor higher than his shoulders.' " Or they might accept some more recent official definition.

But a strike has never been what the rulebook says it is. This elementary unit from which a baseball game is constructed is whatever an umpire says it is. Ken Kaiser, who umpired in the American League from 1978 to 1999, stated this truth with philosophical precision in his memoir, Planet of the Umps.

"The strike zone as defined in the rule book … is a myth. It doesn't exist. It's a nonexistent imaginary box. It has always not existed," Kaiser writes.

According to Kaiser, no two umps see the same strike zone. They view the plate from different angles, react differently to pitches, and change their opinion of what a strike is from batter to batter. When umpires say they call balls and strikes the way they see them, they mean it literally. They are the strike zone.

Likewise, the law is whatever Supreme Court justices say the law is. Just as no two umps see the same pitch, no two justices view the same judicial strike zone. If they did, every decision would be 9-0. Oh, the justices are supposed to draw on the Constitution and consult binding precedents in their rulings, just as umpires are instructed to call games in accordance with the contents of the Major League Baseball rulebook. But established law and baseball rules are sufficiently complex to leave wiggle room for less than objective edicts from justices and umps. As Kaiser puts it, "The best way to stop an argument is to quote the specific rule that you used to make a call, even if you have to make up that rule."

Sloanasaurus said...
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Sloanasaurus said...

If abortion politics went away perhaps we would see less politicizing becuase more judges like Scalia and Thomas would be easily accepted.

I think more people would be worried about liberal judges making stupid decisions such as allowing Osama Bin Ladin appeal rights to federal courts, forcing private businesses to allow persons to decide their own sex when choosing which bathrooms to use, or deciding that the death penalty is immoral because people in France think it is immoral.

Unfortunatley these concerns are crowded out by abortion politics, which, is further stupid because abortion would remain legal in every state even if Roe was overturned. Abortion politics is used by the left to get the leftist agenda through the court. Without Roe, the court would be far more conservative today.

Unknown said...

I think Scalia's view on Bush v. Gore was pretty clear, since he concurred with Rehnquist's opinion that the Florida Supreme Court had violated Article II of the Constitution. For what it's worth, I think that the equal protection portion of the decision is bogus, since it is clear that the legislatures of the several states are free to decide how the electors are to be chosen, which presumably includes decisions to delegate the authority to local officials under the Voting Rights Acts.

Simon said...

Replying to StrangerInTheseParts - you are attacking a straw man, my friend. By attacking original intent, you are attacking a theory which is not only indefensible, but undefended; virtually no serious originalist believes that the original intent controls; Scalia and Bork both spent huge chunks of their books and speeches explaining in great depth why there probably IS no single original intent, even if there were, we would find it almost impossible to determine, and even if there were and we could, it wouldn't control anyway. What governs are the words they chose that were democratically adopted. The theory of originalism, as it is widely practised, is concerned with, what did those words mean to a reasonable person at the time the document was adopted? This is the theory of original meaning, and it is knowable. We have a wealth of information contemporaneous (or roughly so) to the constitution, ably supported by the traditions and practises sustained under the constitution for most of our history.

Of course, determining a meaning may cange as information becomes available, and how then to apply that meaning to a given case or controversy is still at issue, which is one reason why originalists do not always agree. Scalia and Thomas reach utterly different conclusions on a semi-regular basis. I disagree strongly with my originalist brethern on the negative commerce clause. It is not so formulaic as its opponents would have you believe, nor nearly so cryptic. It only becomes complicated when you start approaching cases from completely the wrong direction: when you determine what seems a reasonable outcome and then looking for support (which is what Breyer, Ginsburg et al do), rather than determining which provisions are implicated in the case, what they meant when adopted, and how they apply to the case at hand, the latter approach being the only way to maintain the sovereignty of the constitution.

In response to several commenters, I really think this to be a canard. Most pro-choice folks claim that the vast majority of Americans are pro-choice "to one extent or another" (important qualifying phrase, this). Well, if pro choice folks are such an overwhelming majority, then there's no argument against overruling Roe - the case was wrongly decided, it has had a corrosive and corrupting effect on the Supreme Court nomination process, and the right it protects would not be threatened by legislative action anyway. So what's the problem? Why keep fighting to defend the indefensible-but-irrelevant case?

In any instance, I could accept legal abortion by legitimate democratic process far more than I can accept its imposition by judicial fiat. But I think you're wrong; I think that the majority of Americans are actually far less pro choice than the pro choice lobby would like to believe, and only a little less pro-life than the pro life lobby like to believe. So what say we give it a go and see who's right?

Peter Hoh said...

Sloanasaurus, I beg to differ. Without Roe, the whole political landscape would be different, but probably not as conservative.

Right now, "pro-life" is a fuzzy term. It includes (and unites) those who think there should be a total ban on abortions and those who want to include a few exceptions. Should Roe be overturned, these folks will fight amongst themselves.

Why do Democrats spend so much time fighting for Roe? I don't know. Might have something to do with their tendency to shoot themselves in the foot.

P_J said...


Pro-life folks have been fighting amongst themselves for quite a while already. Absolutists and incrementalists denounce each other.

But as Simon and Sloan correctly pointed out, absent Roe those battles would be at the state level, where they should reside, instead of constantly shaping national politics.

Sloanasaurus said...

The decision today over the Abu Garib photos is exactly what I am talking about regarding these judges. These types of rulings will lead to civil war in this country. These left wing judges need to watch it. This isn't a game. This is about peoples lives. This judge Hellerstien is a disgrace.

Matt said...

I happen to be litigating a case before Judge Hellerstein right now, and he's considered beyond reproach--smart and knows his stuff. And attacking him as not understanding the military would seem a little silly, since he served three years as a JAG. Disagree with his decision if you want (I am no FOIA specialist, but it seems correct to me), but impugning that judge's integrity (or any judge's) without good cause should not be done.

Anonymous said...

Disagree with his decision if you want (I am no FOIA specialist, but it seems correct to me), but impugning that judge's integrity (or any judge's) without good cause should not be done.

Careful Matt, I am somewhat new here but Ann told me just the other day that she has a certain culture here, and sloanasoarus is definitely near the top of the pecking order. Ann is derned proud of the culture growing on her blog and rightly so!

Sloanasaurus said...

Quxxo you are the same guy that burned down the Reichstag and then blamed it on the Communists. Your gratuitous posts are juvenile.

Althouse should reward your attempt to get attention by deleting your response.

Sloanasaurus said...

"...but impugning that judge's integrity (or any judge's) without good cause should not be done...."

I don't get what you mean "without good cause" the decision is a total joke. What possible rational balancing act does the principle of open government in this case outweigh the probable cost to our national security.

We have already seen the pictures. Why do we need to see more?

Releasing these pictures will cause nothing but more death. I cringe after I hear all you leftys say "I support the release of these photos on principle.....oh yeah and I also support our troops!"

goesh said...

Simon says, "I could accept legal abortion by legitimate democratic process far more than I can accept its imposition by judicial fiat" - whew! What a breath of fresh air amidst the stench of precedent.

Sloanasaurus said...

"...but your personal attacks upon this judge are not acceptable...."

Agreed. Perhaps I should have said that Judge Hellerstien's decision was a disgrace.

Peter Hoh said...

On the question of Roe: it seems to me that many (okay, a weasel word) of the folks opposed to Roe want the court to give them what they are afraid they can't get through the legislative process: a ban on abortion. They might be surprised to find out what happens should Roe be overturned. Hey, if I ran things, I'd toss out Roe and leave it to the states. Messy? Yes. Democratic? Yes. The way our founding fathers meant it to be? Yes.

I think the court made the mistake of thinking that they could step in and solve a problem that was dividing Americans. Instead they just stepped in it. Same happened with Bush v. Gore.

P_J said...


If Roe were overturned and it went back to the states, I think you would indeed see some states enact significant restrictions on abortion. I don't think it would change Republicans' positions on abortion much because more conservative states already have more conservative legislatures, and vice versa.

And I bet that it would pretty much follow the red/blue divide. A recent survey suggests this pretty strongly.

I don't think many pro-life people are scared of what would happen if Roe were overturned. I think they would be excited and energized, certainly in states where there's a chance of enacting more pro-life laws. Pro-lifers in more liberal states don't stand to lose anything absent Roe, anyway.

P_J said...
This comment has been removed by a blog administrator.
P_J said...


Hmmmm. This sounds like a conversation I've heard before...

Inigo: I do not think you would accept my help, since I'm only waiting around to kill you.

Westly: That does put a damper on our relationship.

P_J said...


I believe abortion is morally wrong in almost every circumstance because it is the intentional murder of a defenseless human being. But I do not believe that abortion would be totally outlawed perhaps anywhere. Most pro-lifers would be very happy to see extremely late-term abortions outlawed or parents informed that their 15-year-old is having an abortion (as would apparently 60-80% of Americans). There will always be "zealots" - but rather than imposing one brand of zealotry by judicial fiat, why not let the states decide?

As far as states becoming islands of differing laws, isn't that what the 10th amendment allows for?

Simon said...

Jeff - that's one of my wife and my favorite movies ever!