Scalia Considered

Just when we thought it was safe to conclude that the Supreme Court is hopelessly partisan, Chief Justice Roberts deftly throws a few morsels to the Right but manages to defend the healthcare mandate as constitutional, not on the four liberal justices’ ground of Congress’s right to control commerce, but rather on the ground that the mandate is effectively a tax and Congress does have the right to tax. Thus the centerpiece of the law was preserved, and not by the vote of the usual swing-voter, Anthony Kennedy, but by the conservative, George Bush-appointed Chief Justice, John Roberts. This outcome, particularly with this unexpected alliance of Roberts and the four liberal justices, was predicted by virtually no one, least of all me, who assumed the usual politically dictated outcome of 5-4 against.

It was certainly refreshing to see the Court tack counter to expectation. The 2000 Bush v. Gore decision broke perfectly along party lines, giving the election to Bush despite—though this was outside the Court’s consideration—the election being the country’s fourth in which the fellow with the most votes did not become president. The execrable Citizens United case also broke along party lines, allowing elections to be determined by train loads of one hundred dollar bills collected from mega-rich anonymous donors seeking to buy an election, all on the specious ground that a corporation is a person, a citizen, and thus entitled to free speech. Wealthy people generally being Republicans, the decision has rightly been interpreted as more favorable to the GOP, and already in this election cycle millions upon millions have slipped in to Superpacs, mostly favoring Romney. Even John McCain excoriated this decision, a decision allowing democracy to come perilously close to simply being bought, particularly in elections below the presidential level.

But the healthcare decision went, in general, liberals’—and one might even say moderates’—way. The four liberals of the Court (Ginzburg, Breyer, Kagan, and Sotomayor) voted predictably. Three of the five dependable conservatives (Thomas, Alito, and Scalia) did also. Kennedy, as usual, leaned right, though he does not always do so. The surprise was Roberts, always heretofore conservative. Among the plenitude of questions and implications the decision has for healthcare, it also raises the question of the influence of political affinity as the determiner of Court decisions. The healthcare decision notwithstanding, most decisions do seem to reflect the political orientations of the justices, however much we might wish otherwise. In all but the most obvious cases, a law’s constitutionality often evades the actual language of the Constitution, and depends instead upon the politically infused interpretations the justices offer of the Constitution. If this were not so, presumably it would be a total mystery to observers and commentators as to whether a controversial and especially politically-charged decision might be 9-0 for, or 9-0 against. Instead, we can generally predict eight of the votes. We know the political leanings of the justices, and on that basis we can with some likelihood determine how they will interpret the Constitution to arrive at the decision that comports with their politics.

What is interesting is that one of the justices, Antonin Scalia, takes strong exception to that, at least concerning his own decisions. I have now seen Scalia, the current Court’s longest serving justice, give two speeches. He is a charming and forceful speaker, devoted to the idea of “originalism,” a doctrine asserting that the only way to interpret the Constitution was by its “original intent,” which presumably can always be ascertained by a close reading. Scalia suggests that there are no legal questions—which he differentiates from moral questions—which cannot be interpreted within the purview of the Constitution; its principles are immutable whatever the ephemeral facts of any particular modern case might be. In contrast to originalism, he opposes the doctrine of the Constitution as a “living document,” a view he reviles on the premise that such a constitutional philosophy allows the meaning of the Constitution to change every few decades as social values evolve. Reasonably explicit in this argument is Scalia’s objection that the “living document” view inevitably invites politics into Court decisions, whereas originalism insures that decisions are safely insulated from politics since justices would rely only on the original intent of the framers.

Even aside from the highly suspect perspective that modern justices can derive the framers’ collective intent, the Scalia presumption that such derivations are immune to the political leanings of the interpreter is both naive and self-deceptive. Between the Constitution and a particular justice’s opinion is a layer of personal political conviction, a fact which every president nominating a justice and every senator voting on a nominee well knows. The most obvious evidence for this is found within Scalia’s own decisions—almost invariably conservative, at least when there is a conservative-liberal angle to the decision. Would, for example, the framers have endorsed the execution of child criminals—an issue the Supreme Court decided against a few years ago? How are we to decipher the framers’ intent on such a question? And in the absence of a clear constitutional prescription on a question, i.e., constitutional silence, isn’t trying to get into the minds of the framers and determine their intent at least as hazardous as relying on prevailing, rationally argued, ethical views? And by what consensus do we apotheosize the framers to such an extent that we assume their values and prescriptions, which were influenced by their cultural milieu just as ours are, to be infallible? The “father” of the Constitution, James Madison, apparently did not lose an excess of sleep over slavery, nor did he seem much troubled by excluding half the white population—women—from voting. So much for original intent of the framers. Those shortcomings were eventually “corrected” by amendments, and thus became constitutional, but those amendments were political products of their time and consequently clear evidence of an evolving, “living,” document. Why would the framers have inserted a mechanism for amendments if they did not wish to acknowledge the possibility of need for change, modification, or addition over time? The very fact that the framers provided that mechanism is itself evidence of their “original intent” that the document was a living document, to be amended as future generations saw fit.

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