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Justice Carley, in dissent, argues that the precedent on which the majority relies “clearly interprets the constitutional right of privacy as subject to compliance with this state’s criminal statutes.” He faults the majority for “acting as social engineers rather than as jurists” and for “judicially repeal[ing] laws on purely sociological considerations.”
2006—It’s monkey business as usual at the Ninth Circuit. A divided panel, in an opinion by higher primate William Fletcher, disrupts established principles of administrative law as it rules both (1) that a plaintiff with a “particularly close emotional attachment” to a chimpanzee named Terry has standing to challenge the Department of Agriculture’s decision not to adopt a draft policy providing guidance on how to ensure the psychological well-being of nonhuman primates, and (2) that the decision not to adopt the draft policy is judicially reviewable. Judge Kozinski concludes his thorough dissent with this summary:
“The majority expands the law of standing beyond recognition. It unmoors administrative law from sound principles of judicial review, and insinuates the federal courts into sensitive policy judgments that are the exclusive province of the Executive Branch. It ignores the teachings of the Supreme Court and misapplies the precedents it relies on. It will cause no end of mischief. Count me out.”
In Newsweek, Dahlia Lithwick contends that Newt Gingrich “was factually true but hopelessly misleading” when he said that David Hamilton, President Obama’s recently confirmed pick for the Seventh Circuit, had ruled that “saying the words Jesus Christ in a prayer is a sign of inappropriate behavior, but saying Allah would be OK.” But it’s Lithwick who is doing the misleading, as she omits from her quotations from Hamilton’s order the brief passages that amply warrant the concern of Gingrich and other critics that Hamilton was engaging in an act of politically correct favoritism of Islam over Christianity in the public square.
Specifically, as I detailed in my initial post on the matter, Hamilton, in responding to a query from the Speaker of the Indiana House of Representatives whether “a Muslim imam may offer a prayer addressed to ‘Allah,’” wrote that he saw “little risk that the choice of language would advance a particular religion or disparage others.” Hamilton’s position that such a prayer would be nonsectarian makes little sense, for the reasons I explained.
Lithwick also asserts that Hamilton’s ruling was “right as a matter of law,” but there is nothing in what she fairly labels the “crazy quilt of Establishment Clause doctrine” that justifies that assertion.
By a 59-39 vote, the Senate has confirmed President Obama’s controversial (see here, here, here, here, and here) nomination of David Hamilton to the Seventh Circuit. The only Republican to vote in favor of Hamilton was Richard Lugar of Hamilton’s home state of Indiana.
In another brazen abuse of his judicial office, Ninth Circuit judge Stephen Reinhardt yesterday purported to issue an order requiring the Office of the Federal Defender for the Central District of California to make an award of back pay to a deputy federal public defender who was not permitted to enroll his same-sex spouse as a beneficiary of his health-care plan. One of the many problems with Reinhardt’s order is that there was no case before him in his judicial capacity. Reinhardt was acting in his administrative capacity as designee of the current Chair of the Ninth Circuit’s Standing Committee on Federal Public Defenders. So why, pray tell, is he permitted to disguise his administrative misdetermination as a Ninth Circuit judicial order (designated “for publication” in the Federal Reporter, no less!)?
See Matt’s February 2009 post for more on this type of shenanigans (including chief judge Alex Kozinski’s similar escapade).
It’s true, as I put it in my Part 1 post, that Joan Biskupic’s American Original is “in many places more evenhanded than I expected.” But my expectations were low, and Biskupic’s book is decidedly, if sometimes subtly, stacked against Scalia.
One set of examples consists of Biskupic’s rhetoric. Time after time, Biskupic tells us that Scalia has “fervent” views (e.g., pp. 107, 149, 196) or a “fervidly argued position” (p. 196). He has an “authoritarian instinct” and an “authoritarian bent” (pp. 51, 64) that supposedly explains his views on executive power (but that would be difficult to reconcile with his position that the Constitution leaves the vast bulk of policy issues to the people to decide). His academic success “led him to feel superior” (p. 26), and he “exuded … the belief that if he did it, it was right” (p. 36). His jurisprudential limits on judicial discretion apparently grew out of a “fixation on rules” (p. 26). What in another justice would be admirable evidence of consistency over a career is instead proof that Scalia is “an unflinching, unyielding justice” (p. 153). And so on.
Then there are Biskupic’s misrepresentations of Scalia’s positions. Beyond those I outlined in Parts 2 and 3, I’ll call attention to a couple of more here.
Biskupic contends (pp. 97-98) that Scalia’s testimony at his Supreme Court confirmation hearing about the libel case of Tavoulareas v. Washington Post “implicitly contradicted how much the case had mattered to him at the time and continued to matter.” But Biskupic clips Scalia’s testimony to omit his primary point that the case “is the one case, one of very few cases, I can’t talk about because it’s still before our court on petition for rehearing.” (Hearing transcript, p. 96.) She seems to think that it’s somehow damning that Scalia clarified that he wasn’t the author of the opinion in the case but instead joined the opinion. But Scalia’s clarification was an appropriate response to a question that asserted (in context that Biskupic doesn’t provide) that Scalia “ruled against the press” in the case—as though the ruling might have been entirely his. It’s simply ridiculous for Biskupic to contend that Scalia was misportraying his role in the case when he was in fact stating clearly that he couldn’t discuss the case.
Summarizing Scalia’s position on the Establishment Clause, Biskupic asserts, “When it came right down to it, he believed almost no government action would violate the Establishment Clause, short of outright coercing religious participation” (p. 139). But in his dissent in Lee v. Weisman (1992), Scalia expressly accepts that
our constitutional tradition, from the Declaration of Independence and the first inaugural address of Washington … down to the present day, has, with a few aberrations, ruled out of order government sponsored endorsement of religion — even when no legal coercion is present, and indeed even when no ersatz, “peer pressure” psycho coercion is present — where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world, are known to differ (for example, the divinity of Christ). [Emphasis added; internal citation omitted.]
The third respect in which Biskupic stacks the deck is the profligate attention that she gives critics of Scalia, whether or not their criticisms make any sense. The starkest example here is the 2-1/2 pages (pp. 203-205) that she gives law professor Geoffrey Stone’s “painfully awkward observation” that all five justices in the majority in the 2007 partial-birth ruling (Gonzales v. Carhart) were Catholic.
I certainly don’t mean to contend that Biskupic shouldn’t pay attention to Scalia’s critics, nor do I dispute that even feeble critiques may reasonably bear on political controversy over Scalia, but Biskupic’s incessant resort to critics frequently seems her way of bolstering her charges against Scalia on the basis of the critics’ supposed authority rather than on the basis of reasoned argument.
In the prologue (p. 9) of American Original, Joan Biskupic presents the rhetorical questions that she says “go[] to the heart of Scalia’s legacy”:
Is his brand of originalism simply a way to achieve conservative results? Does he talk a good game until his method fails to get him what he wants as a policy matter?
Biskupic’s bottom-line answer to these questions is yes—e.g., “Scalia could not separate his constitutional views from the core of his identity, which was decidedly Catholic” (p. 210)—but her answer rests heavily on makeshift evidence.
Let’s consider first the supposedly “gotcha” anecdote (pp. 8-9) in Biskupic’s prologue that surrounds her rhetorical questions. At a 2008 Federalist Society convention, the “last question” to Scalia was how he reconciles his positions in United States v. Lopez (1995) (where he voted “to overturn a federal law that regulated guns near schools because it trampled on state authority”) and Gonzales v. Raich (2005) (where he “voted to uphold a federal drug law that voided a California policy allowing marijuana use for medical purposes”). Biskupic points out that Justice O’Connor, in her dissent in Raich, had labeled the results in Lopez and Raich to be “irreconcilable,” and she says that legal analysts three years later were still “buzzing over whether Scalia abandoned his abhorrence of federal intervention simply because he opposed the legalization of marijuana.” She finds it especially telling that Scalia chose not to engage the question but instead requested another one.
The trusting reader might imagine that Scalia can’t reconcile his positions in the two cases and would be surprised to learn that Scalia wrote a separate concurring opinion in Raich that addresses precisely that matter. (Even in her endnote (p. 365 n. 9), Biskupic refers only to the majority opinion and the O’Connor and Thomas dissents.) It would of course be fair game to examine and contest the arguments in that concurring opinion, but Biskupic doesn’t even acknowledge their existence. Had she done so, her reliance on Scalia’s declining to answer the question would be revealed to be as ridiculous as it is. (There are, of course, innocuous reasons why Scalia would have disfavored this “last question.” He might, for example, have regarded the matter as too intricate for a brief off-the-cuff response.)
Although she seems not to realize it, Biskupic herself provides compelling evidence that Scalia’s constitutional positions don’t align with his religious or policy views. According to Biskupic (p. 196), Scalia holds “fervent views consistent with his religious beliefs” about “the moral issue of whether women should have abortions and the policy issue of whether laws should permit or forbid that choice.” It ought to be particularly striking, then, that Scalia does not read the Constitution to bar permissive abortion laws. He does not seek, in other words, to entrench in the Constitution his “fervent views.” Instead, he believes that the Constitution leaves policy decisions on abortion to the legislative processes, where the people, through their elected representatives, can determine whether or not to regulate abortion. (I developed this general point more fully in my NRO essay “Abortion and Justice: Let’s hope John Roberts is a genuine moderate.”)
To bolster her confused case, Biskupic resorts to more misrepresentations of Scalia’s positions. She claims, for example, that Scalia has said that “legal views are ‘inevitably affected by moral and theological perceptions’” and insinuates that he believes that it’s proper for a judge to indulge those “moral and theological perceptions” (p. 210). But in the very speech that she purports to quote (published as “Morality, Pragmatism, and the Legal Order,” 9 Harv. J. L. Pub. Policy 123 (1986)), Scalia distinguishes at the outset between a judge’s “doing justice” by “deciding the rights of litigants before me in accordance with the laws as they are written” and society’s “moral beliefs” about justice. (Biskupic’s quote is also a misquote, as her excerpt comes from Scalia’s statement that “the value that one [in society] places upon competing goods—sexual pleasure versus economic security, or avoidance of pain versus preservation of human life—is inevitably affected by moral and theological perceptions.”)
2003—By a vote of 4 to 3, the Massachusetts supreme court (in Goodridge v. Department of Public Health) imposes same-sex marriage on the benighted citizens of Massachusetts, as the court rules that a state statute defining marriage as the legal union of a man and a woman—a statutory definition that dates back to colonial times and that is derived from English common law—somehow violates the “individual liberty and equality safeguards” of the state constitution. The majority opinion by chief justice Margaret H. Marshall, wife of former New York Times columnist Anthony Lewis, is widely credited with helping to secure President George W. Bush’s re-election in 2004.
Justice Scalia’s influence derives heavily from his promotion of the interpretive methodology of “original meaning,” which holds that the various provisions of the Constitution are to be interpreted in accordance with the public meaning they bore at the time they were promulgated. Joan Biskupic of course recognizes the central importance of Scalia’s originalism (as her title American Original indicates). But her book does not present clearly what Scalia’s original-meaning methodology is, nor the arguments that Scalia has made on its behalf. (If she draws at all on Scalia’s A Matter of Interpretation, I missed it.)
In her prologue (p. 4), Biskupic describes Scalia’s originalism as “insisting that judges should render constitutional decisions based on the eighteenth-century understanding of the text” and contrasts it with Chief Justice Earl Warren’s “interpret[ing] the Constitution to contain broad principles that could be applied to modern circumstances.” The trusting reader is left to puzzle over how, say, the post-Civil War Amendments could be construed “based on the eighteenth-century understanding of the text” and to infer mistakenly that the Constitution, under an originalist interpretation, can’t “be applied to modern circumstances.” The real divide between originalism and the misnamed “living Constitution”—over the breadth of play that the Constitution gives to the democratic processes to adapt policies to new conditions—is left obscure.
Similarly, in her next foray (p. 87), Biskupic recites the cliché that proponents of the “living Constitution” believe that “it evolve[s] to fit the needs of a society in every era,” while the originalist’s Constitution is “fixed by its eighteenth-century perspective.” Biskupic doesn’t take note of the inconvenient fact that the Supreme Court’s invention of new rights that entrench the current elite’s policy preferences deprives future generations of the very adaptability that living constitutionalists claim they favor, whereas the originalist’s refusal to invent those new rights preserves that adaptability.
A bit later (p. 125), we’re told that Justice “Brennan’s approach—tied to the ‘essential dignity and worth of an individual’”—was “worlds apart” from Scalia’s. The reader might naturally imagine that Scalia’s approach is opposed to the “essential dignity and worth of an individual,” when in fact the real difference between Brennan and Scalia relates to whether justices have freewheeling authority to impose their own subjective views of which policies advance that goal.
And so on.
I don’t mean to contend that an alert reader might not be able to find some passages—including some quotes from Scalia (e.g., pp. 117-118)—that give a better sense of what his originalism is. But Biskupic doesn’t make the task an easy one.
I’ve read through USA Today reporter Joan Biskupic’s new biography of Justice Scalia, American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia. In this and a few additional posts, I’ll offer my comments on the book.
Disclosure: As I assume regular Bench Memos readers know, and as clicking my name above will readily reveal, I had the privilege of serving as a law clerk to Justice Scalia. (I clerked during the October 1991 Term.)
American Original has 16 chapters. The first four are the most purely biographical, tracing Scalia’s life from his birth in Trenton, New Jersey, in 1936 to his appointment to the D.C. Circuit in 1982. Chapters 5 and 6 cover his service on the D.C. Circuit and his nomination to the Supreme Court. The remaining ten chapters cover various aspects of his tenure on the Supreme Court, largely (if somewhat loosely) by the subject matter of cases (e.g., race, abortion, homosexuality, Bush v. Gore).
Biskupic succeeded in securing Scalia’s cooperation on her book project. She interviewed him a dozen times, and as she puts it, he “was generous with his time and candor, and he encouraged colleagues, friends, and relatives to talk to me.” (p. 413)
My overall take on American Original is decidedly mixed. On the positive side: The book is well written, much more so than I expected from my occasional encounters with Biskupic’s reporting. It is also in many places more evenhanded than I expected. And I found the first four chapters particularly interesting.
I’ll flesh out the negative side in my posts to come, but here’s an overview: Consistent with her reductionist depiction of judging as politics, Biskupic does not engage well with Scalia’s ideas about judging. In particular, I doubt that any reader will come away from the book understanding what Scalia’s original-meaning methodology is, much less his stated reasons for believing that it’s the correct interpretive methodology. Far from grappling with Scalia’s jurisprudential ideas, Biskupic resorts to flawed and simplistic accounts. Worse, she misrepresents Scalia’s positions and statements on a variety of matters—always to his detriment. In sum, although she may well have, as she says (p. 415), “worked hard to be both fair to him and true to the readers of this book,” she has fallen well short of those goals.
A few follow-up points to my earlier post (as well as thanks to the reader who called them to my attention):
1. As Jack Dunphy highlights on The Corner, the unanimous Supreme Court in Wong v. Belmontes states that it “simply cannot comprehend the assertion by the Court of Appeals [opinion of Judge Reinhardt, joined by Judge Paez] that this case did not involve ‘needless suffering’”:
The jury saw autopsy photographs showing Steacy McConnell’s mangled head, her skull crushed by 15 to 20 blows from a steel dumbbell bar the jury found to have been wielded by Belmontes. McConnell’s corpse showed numerous “defensive bruises and contusions on [her] hands, arms, and feet,” which “plainly evidenced a desperate struggle for life at [Belmontes’] hands.” Belmontes left McConnell to die, but officers found her still fighting for her life before ultimately succumbing to the injuries caused by the blows from Belmontes. The jury also heard that this savage murder was committed solely to prevent interference with a burglary that netted Belmontes $100 he used to buy beer and drugs for the night. McConnell suffered, and it was clearly needless. [Internal citations omitted.]
2. The Court also notes that the Ninth Circuit majority, in addressing for the first time the murderer’s claim of ineffective assistance of counsel, suddenly “changed its view of the evidence.” Mitigation evidence that it had, in an earlier phase of the litigation, called “substantial” somehow became “cursory” and “insubstantial.”
3. Whereas Reinhardt had concluded that “[t]here can be little doubt” that counsel’s performance “was prejudicial,” the Supreme Court labels “fanciful” the notion that any prejudice resulted.
In a unanimous per curiam opinion today in Wong v. Belmontes, the Supreme Court summarily reversed the ruling by a divided Ninth Circuit panel that a murderer who had been sentenced to death received ineffective assistance of counsel during the sentencing phase of his trial. The Ninth Circuit opinion was written by arch-activist Judge Stephen Reinhardt and was joined by Judge Richard Paez. In dissent was Judge Diarmuid OScannlain.
As Orin Kerr on the Volokh Conspiracy points out, thats the third time in this same case that the Supreme Court has reversed or vacated a ruling by Reinhardt. (Each ruling was joined by Paez and was over OScannlains dissent.)
Ever defiant of the Supreme Court as he makes his wayward rulings, Reinhardt has declared, They cant catch them all. Hes undoubtedly right about that, but at least the justices havent given up.
On FindLaw, Senator Hatch responds to a recent op-ed by law professor Carl Tobias that faulted Senate Republicans for obstructing President Obama’s judicial nominees.
Sunday’s New York Times has an interesting article on the relatively slow pace of judicial nominations by President Obama—relative, that is, to the first-year pace of President George W. Bush:
Mr. Bush … had already nominated 28 appellate and 36 district candidates at a comparable point in his tenure. By contrast, Mr. Obama has offered 12 nominations to appeals courts and 14 to district courts.
Fairly or not, it appears that recently departed White House deputy counsel Cassandra Butts—a longtime friend of President Obama—has borne the brunt of blame for the delays. Butts has just become senior adviser to the Millennium Challenge Corporation—not what many folks would regard as a lateral move, much less a promotion.
I do find Obama’s slow pace surprising (and am quoted as saying so in the article). But while it’s understandable that Obama supporters are concerned by the slow pace, it’s worth highlighting that President Clinton had made only five appellate nominations by roughly this point in his first year (1993)—but that he ended up appointing a full 16 appellate judges during his second year (1994). Clinton’s total of 19 appellate appointees during his first two years slightly exceeded Bush’s total of 17 during his first two years.
The Senate Judiciary Committee, under chairman Leahy, is certainly doing its best to fill the pipeline quickly: This week, it will hold its ninth hearing on a federal appellate nominee. By contrast, the committee under chairman Leahy held a grand total of eight hearings on federal appellate nominees during the combined final two years of the Bush administration. (The contrast is even starker in light of the fact that there were no nominees in the pipeline at the beginning of the year—all of the hearings have occurred since April—and given all the time and attention consumed by the Sotomayor hearing.)
