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Will next high court nominee continue Scalia legacy? :: 01/09/2017

After the untimely death of United States Supreme Court Justice Antonin Scalia last February, headlines declared “Supreme Court Hangs in the Balance,” “Next President to Shape Court for a Generation.” We now know the President who will do that shaping is Donald J. Trump. President-elect Trump has made it clear that Justice Scalia will be the model for his Supreme Court nominee. Informed Americans should know what that model represents.

During the nomination and confirmation process, labels will be bandied about: “Originalism” vs. “A Living Constitution,” “textualism” vs. “evolving meaning” and the irresistible “conservative” vs. “liberal.” But these labels and related hyperbole are unhelpful to a clear understanding of Justice Scalia’s approach to judicial decision-making.

As a United States District Judge for the last 15 years, I have had an opportunity to read, study and apply decisions of the United States Supreme Court. Justice Scalia’s opinions, whether joined by the majority of his fellow Justices or standing alone as dissents, are always enjoyable to read.

While he was clearly an intellectual of the highest order, he wrote with a style that was direct and accessible. Although he often used soaring eloquent rhetoric, his opinions were not so esoteric and lofty that only a law professor could understand them. His vivid imagination amuses us with phrases that seem more Dr. Seuss than Supreme Court Justice: “legalistic argle- bargle,” “interpretative jiggery-pokery,” and “[p]ure applesauce.” Upon consulting the dictionary, we found that he had not made these words up and that their usage fit the circumstances better than a paragraph-long explanation. His wit and biting humor were unmatched on the Court, often creating a byproduct rarely produced by judicial writing — a smile, or even a grin, on the face of the reader. His inimitable style will be impossible to replace. But his analytical approach to judicial decision-making can be replicated, and his potential successor will be measured, at least in part, by how closely he or she is likely to follow that same approach.

Justice Scalia has been labeled an “originalist” and a “textualist.” Both labels are shorthand for describing an analytical approach to interpreting legal texts, including the United States Constitution and enactments of Congress. Justice Scalia has summarized this approach as requiring that one should “look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject

judicial speculation about both the drafters’ extra-textually derived purposes and the desirability of the fair reading’s anticipated consequences.” The judge’s goal is to determine what the drafter of the text intended the text to mean. Preferably, this can be determined simply from a fair reading of the words of the text. But when that cannot be done and the judge must wander from the text, Justice Scalia cautioned that the judge must not wander too far. Any contextual analysis should be restricted to the context in which the text was drafted.

Thus, for Constitutional interpretation, it is important to understand the context in which the original Constitution was drafted and ratified, as well as the contexts in which the various Amendments were drafted and ratified. What the drafters of the words intended them to mean is far more helpful than a modern judge’s personal notion of what those words should mean. This approach produces the label “originalist” because the goal is to determine the original meaning of the language in the text.

For statutory interpretation, the goal is similar. What did Congress mean when it put certain words on paper? The best evidence of what it meant is what it wrote. When that statutory language is unclear, interpretive conventions exist to help discern the meaning of the language. The underlying premise of this approach is that Congress meant what it wrote in the statute, and the judge is duty bound to interpret that language and not graft upon it the judge’s personal view of what Congress should have enacted.

This analytical approach was not simply an intellectual exercise for Justice Scalia. He considered it to be the only way to be faithful to our system of government, a self- government that is a nation of laws — not of men. Once a judge grants himself permission to go beyond the text, he crowns himself with the authority to say that the text means whatever he thinks it should mean. And by doing so, he trespasses upon the domain of the representative, political branches.

Avoiding these judicial trespasses provided a foundation for Justice Scalia’s approach to judicial decision-making. He understood that the fundamental pillar of liberty is not a well-crafted bill of rights. Many despotic countries have longer declarations of rights than we do. The genius of our system is the Founders’ decision to disperse political power with appropriate checks and balances. They assigned certain matters to Congress and the President, accountable to the people at the ballot box. Providing the Judicial Branch with the unique responsibility of interpreting the Constitution, Congressional enactments and Executive action in adversarial cases, the Founders balanced the powers of the Legislative and Executive branches. To accomplish this important duty without fear or favor, the Founders also made the Judiciary the most independent branch, insulating its Jjudges with life tenure.

While this judicial independence is paramount to maintaining the proper balance between the branches, Justice Scalia recognized that it can create mischief, and this opportunity for mischief lies at the very heart of his judicial philosophy.

He believed that political matters should be left to the political branches — the Congress and the President. And Judges should be forever vigilant in restraining themselves from overextending their authority beyond the interpretation of the law. The natural seduction of injecting one’s personal views into the interpretation of the law, a practice sometimes derisively referred to as “legislating from the bench,” must be resisted. In striking down Washington, D.C.’s personal handgun ban, Justice Scalia acknowledged the problem of handgun violence in this country and that certain gun control measures could survive constitutional muster. But he emphasized that “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” He concluded: “Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to

pronounce the Second Amendment extinct.” Justice Scalia often observed that the Founders provided a safety valve if the People wished to change the Constitution; the People (not unelected judges) could amend it.

In addition to the fundamental need to maintain the proper constitutional balance among the branches, Justice Scalia explained in practical terms why judicial overreach should be avoided. Judges, as well trained lawyers, are well equipped for the task of interpreting constitutional and statutory text. They are not well-suited (or appointed) to be a democratic representative, a point Justice Scalia made in his own inimitable style in an opinion shortly before his death:

“The Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between.” Amongst the current Supreme Court Justices, there is “not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.”

His point: Neither the Founders nor an understanding of the structure of our representative democracy condones allowing, as he put it, “a select, patrician, highly unrepresentative panel of nine” to make social policy from the bench.

Justice Scalia recognized that faithfully applying the law without bias can be particularly difficult when it requires the judge to issue rulings that conflict with his strong personal beliefs. In a case holding that the First Amendment protects someone’s right to burn the American flag, he explained: “I hate the result … If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag … But I am not king.”

Justice Scalia’s approach is not embraced by everyone. Criticism of him is typically most intense when his analytical approach produces a result that is controversial, high-profile, and politically divisive, such as his view that Roe v. Wade was wrongly decided and that a right to an abortion cannot be found in the Constitution. As he explained, “My view is regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad, regardless of how you come out on that, my only point is the Constitution does not say anything about it. It leaves it up to democratic choice. . . . What Roe v. Wade . . . said was that no state can prohibit [abortion]. That is simply not in the Constitution. It was one of those many things — most things in the world — left to democratic choice.” According to Justice Scalia, the Court “does not do democracy a favor when it takes an issue out of democratic choice.” Since the right cannot be found in the Constitution, according to Justice Scalia, it can only be created by the people, either by amending the Constitution or through their elected representatives in state legislatures.

Justice Scalia followed a similar path in the Supreme Court’s recent decision on same-sex marriage. He dissented from the majority’s opinion that found that states could not prohibit same-sex marriage. His dissent was not based on his personal views on homosexuality. Instead, he found nothing in the Constitution that prevented states from defining legal marriage in terms of gender and explained that “until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. . . . That is exactly how our system of government is supposed to work.” According to Justice Scalia, such decisions are not supposed to be made by nine senior Ivy League trained lawyers who were elected by no one.

Justice Scalia’s resistance to political correctness has also created occasional controversy in some quarters. Although he clearly believed that the Fourteenth Amendment prevented laws that treated people differently because of their race, he did not hesitate to make the case that discrimination to remedy discrimination also violates the Fourteenth Amendment and is just plain wrong. As he explained, judges have no business “dividing the Nation into racial blocs. That task is as difficult as it is unappealing … What is worse, the exercise promotes the noxious fiction that, knowing only a person’s color or ethnicity, we can be sure that he has a predetermined set of policy interests, thus reinforcing the perception that members of the same racial group — regardless of their age, education, economic status, or the community in which they live — think alike, and share the same political interests. Whether done by a judge or a school board, such racial stereotyping [is] at odds with equal protection mandates.”

Justice Scalia is perhaps most misunderstood when it comes to the constitutional protections available to those accused of crimes. Some label “conservatives” as law-and-order types: “Put the bad guys away,” “lock them up,” and “throw away the key.” But Justice Scalia’s approach does not concern itself with results; it is focused on the process of interpreting the law in a manner that is faithful to the text and the original meaning of the document. This approach led Justice Scalia, from time- to-time, to results that were not fully embraced by law-and- order conservatives. For example, he found that the Fourth Amendment protected a suspected drug dealer when police attached a GPS tracking device to his car. In another case, he decided that the Fourth Amendment placed restrictions on law enforcement when they used a police dog to sniff around the front porch of a home in an attempt to detect marijuana inside. As he explained: “At the [Fourth] Amendment's very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. This right would be of little practical value if the State's agents could stand in a home's porch or side garden and trawl for evidence with impunity.” When faced with the question of whether the Fourth Amendment permitted police to take a DNA swab from a suspect’s cheek, Justice Scalia quipped: “I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.” These decisions have led Justice Ruth Bader Ginsburg, the leader of the so-called liberal wing of the Court, to praise Justice Scalia as “one of the most pro-Fourth Amendment judges on the court.”

Whether you agreed with him or not, Justice Scalia was a principled Justice with a consistent judicial philosophy. His principled approach, while disheartening to those who disagreed with the ultimate outcome, produced predictability, a necessary attribute of a government of laws and not of men. Perhaps most importantly, he sought in his judicial decision-making to maintain that proper structural balance established in the Constitution, a balance that disperses power in a manner that protects individual freedom. We shall soon find out whether his successor continues his legacy.

Clay D. Land of Columbus is Chief U.S. District Judge for the Middle District of Georgia.

http://www.ledger-enquirer.com/opinion/article124970054.html

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