January 29, 2013
Scholars scoff at Scalia claim
By: Katie Glueck
Legal scholars on Tuesday questioned the suggestion by Supreme Court Justice Antonin Scalia - who branded the Constitution a “dead, dead, dead” document - that jurists’ personal beliefs don’t color their rulings.
“I think that it is a bit disingenuous in that he, Scalia, understands that his personal views play an important role in shaping and informing,” Yale Law School Professors Peter Schuck told POLITICO.
Schuck said that “judges like Scalia try” to put aside their own views, but that after years of studying the law and working as lawyers or professors, “when they come to the text, they have a set of ways of looking at the text, thinking about the text, that are personal.”
“Not necessarily in the sense that they want a particular case to come out one way rather than another, but there tend to be fairly predictable, regularized patterns of interpretations,” he said.
At a Monday evening event at the Dallas-based Southern Methodist University, Scalia drew attention once again when he said that the Constitution “is not a living document. It is dead, dead, dead” - a description he has used repeatedly over the years.
And as part of a broader discussion about separating personal beliefs from legal rulings, the Reagan appointee also said that the “judge who always likes the results he reaches is a bad judge,” according to a report from the Dallas Morning News.
“Most of the time — think of his health care decision last year — overwhelmingly, his constitutional interpretation happens to come out the same way as his ideology,” said Northwestern University Professor Martin Redish, a professor of law and public policy.
“It’s pretty typical” of most justices, Redish added with a sigh.
On the other side of the spectrum, Redish said, liberal justices who typically favor free speech sometimes take a different approach when it comes “to hate speech or anti-gay speech.”
“Justices do it a lot,” he said. “Whether it’s a coincidence or they’re doing it intentionally, I cannot speak to.”
Georgetown Law Professor Louis Michael Seidman, who recently made a splash by writing an op-ed in the New York Times headlined “Let’s Give Up on the Constitution,” said that conservatives interpret documents in a way that yields conservative outcomes, and liberals do the same.
“The conservatives, including Scalia, found federal government power was lacking when the question was protecting women against violence or … guns or health care protection, but found the power was present when the question was making marijuana illegal or extending prison terms of [incarcerated] federal prisoners,” he said.
But ultimately, Seidman added, “you can make all sorts of sophisticated legal arguments about that, but I think ordinary Americans have a right to be a little skeptical when results line up so perfectly with the ideological predisposition of justices.”
Legal scholars interviewed by POLITICO pointed to a 1989 case, Texas v. Johnson, in which Scalia voted with the majority, 5-4, to strike down a statute that prohibited flag-burning.
“I find it very hard to believe he thought flag-burning was a great idea,” Georgetown Law Professor Randy Barnett said. “It wouldn’t surprise me at all if many of his views differ from what he rules. Whether that’s true in every case is a different matter.”
Meanwhile, as for Scalia’s comment that the Constitution is “dead, dead, dead,” scholars said that remark was intended to emphasize the justice’s complete commitment to closely adhering to the text of the Constitution.
“Scalia is clearly adverting to the notion of originalism here, noting that the Constitution does not change in its meaning absent a formal amendment,” emailed Professor Kenji Yoshino, a professor of constitutional law at the New York University School of Law.
A legal scholar familiar with Scalia said of his colorful choice of words: