Second is the bubbling over of that incoherence into intemperate behavior, such as recent remarks that could be construed as invitations to treason. (In one instance he told a student the income tax was constitutional, “but if it reaches a certain point, perhaps you should revolt.” Another instance seemed more like a sarcastic remark.)
These two sides overlap — for example, when Scalia chooses to channel Fox News, Rush Limbaugh and the Tea Party, as he did during the Obamacare oral arguments, using some of their favorite tropes, such as the “broccoli mandate” and “Cornhusker Kickback,” without even trying to make them seem relevant to the case. Such behavior moved Charles Fried, President Reagan’s solicitor general, to say the conservative justices’ opposition to Obamacare was about “politics, politics, politics,” telling the Washington Post’s Ezra Klein, “I was appalled to see that at least a couple of them were repeating the most tendentious of the Tea Party type arguments …. I even heard about broccoli. The whole broccoli argument is beneath contempt. To hear it come from the bench was depressing.”
There used to be a term for this: it was called a “lack of judicial temperament,” and it was supposed to be enough to keep wannabe shock jocks off the bench. And that is precisely what Scalia has become, but no one is supposed to say it.
So far, this broader context has been studiously ignored, but the deeper issues of judicial incoherence are profoundly troubling — and consequential, as can be seen in the striking down of Section 4 of the Voting Rights Act last year, a breathtaking act of judicial activism undertaken by justices, including Scalia, who routinely decry the practice when they can point to it in others, whether fairly or not.
Instead, what we’ve seen has been mostly rather superficial. Naturally, there was a quick flash of initial embarrassment. This led to a quick rewrite, which left Scalia’s opinion incoherent, rather than just plainly wrong. As Farber noted in an addendum, “Of course, as corrected, the case no longer fits Scalia’s overall thesis of the ‘unelected officials’ trying to override Congressional policy.” Hence the argument no longer made sense. Details. Details.
The best place to start putting things in context so far is probably Rick Hansen at the Election Law Blog, in an entry titled “When One Justice Makes a Mistake, It is an Embarrassing Blunder. But When 9 Do, Silence”:
Bob Barnes of the Washington Post has a nice recap of the partisanship surrounding Justice Scalia’s error in a recent case in which he mischaracterized a precedent (a precedent whose opinion he authored). Justice Stevens made a mistake like this in a case as well, and Eugene Volokh offers more, some corrected, some not.
These mistakes are easy to flag as mistakes because there is another precedent to compare — the mistake consists of how a prior case is characterized. But consider another kind of mistake: where a Court opinion mischaracterizes the law in a way that changes the law in a major way, perhaps through inadvertence.
Hansen goes on to explain how, in eBay v. MercExchange, the court invented a standard for permanent injunctions that no one had ever heard of before, drawing on a framework for preliminary injunctions — a very different sort of legal action. Hansen is making a very serious and important point: Scalia’s blunder — and others allegedly similar — was not really consequential, while the eBay decision invention of a new judicial standard was huge.
This sort of inadvertent decision making is particularly troubling. But what’s even more troubling is the light it casts on the generally obscured role of motivated reasoning — reasoning to reach a specific desired end — in the legal reasoning of judges who are most convinced of their own impeccable objectivity… such as Antonin Scalia. It’s an influence that shapes virtually all of our legal history, but is particularly pernicious when we refuse to acknowledge it is there.
In his blog post, Hansen quotes from his own previous law review article “Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law,” where he states:
Inadvertence occurs when the Court changes the law without consciously attempting to do so, through attempts to restate existing law in line with the writing Justice’s values….
In the eBay and Monsanto cases, the law moved, significantly, through apparent inadvertence. The term “inadvertence” might suggest some randomness, but I expect inadvertent mistakes to more systematically reflect the value judgments of the Justice drafting the opinion…..
Whatever Justice Thomas intended, he has certainly written or signed onto a number of opinions in recent years that make it harder for plaintiffs to obtain an injunction and easier for defendants to seek modifications of injunctions that ease the burden on defendants. His inadvertence appears to line up with his values.
Stepping back a bit, there’s a troubling parallel here with one of the most consequential decisions in American law, Santa Clara County v. Southern Pacific Railroad, which established corporations as persons under the 14th Amendment. This was not an inadvertent decision, as Hansen describes them, but it was not an expressly reasoned one, either. In fact, the personhood finding was not part of the decision, per se. It appeared in a headnote to the opinion that the Chief Justice began oral argument by stating, “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.”
This rather unusual “precedent” was further consolidated two years later in Pembina Consolidated Silver Mining Co. v. Pennsylvania, which stated, “Under the designation of ‘person’ [in the 14th Amendment] there is no doubt that a private corporation is included. Such corporations are merely associations of individuals united for a special purpose and permitted to do business under a particular name and have a succession of members without dissolution.” But this reasoning is clearly fallacious: it’s a classic example of the fallacy of composition, which would have us believe that since 1 is an odd number and 3 is an odd number, then 1 + 3 = 4 is an odd number, too! The fact that corporate personhood was established on such flimsy grounds is prima facie evidence that motivated reasoning was involved.
In Posner’s book review, titled, “The Incoherence of Antonin Scalia,” he specifically mentions “motivated thinking,”defining it as “the form of cognitive delusion that consists of credulously accepting the evidence that supports a preconception and of peremptorily rejecting the evidence that contradicts it,” and it’s not hard to understand what he means.
Scalia mouthing off about “broccoli” and “the Cornhusker Kickback” during Obamacare oral arguments is a perfect example of such credulity: Anything the Tea Party claimed, Scalia was ready to eat it right up and regurgitate it in the highest court in the land. On the other hand, when it comes to rejecting contradictory evidence, all five conservative justices showed how to do that when they peremptorily rejected all the evidence that Congress had collected in support of reauthorizing the Voting Rights Act in 2006 — evidence from 21 hearings, more than 90 witnesses, and a 15,000-page record compiled over a 10-month period. Not only was this an impressive act of rejecting evidence, it was an equally impressive act of tossing their own beloved judicial restraint out the window.
Leave it to Scalia, however, to flamboyantly add insult to injury. Less than a month later, Scalia gave a speech in Colorado, in which, it was reported, “His chief contention, which he delivered with occasional humor, was that judges are not policymakers and should leave policy decisions to elected lawmakers, who answer to the citizenry.” So was Scalia saying he and the rest of the conservative majority had been wrong to overturn the VRA, which had passed the Senate 98-0 and the House 390-33? No, silly! He wasn’t talking about voting rights, he was talking about the gays:
“I accept, for the sake of argument, that sexual orgies eliminate social tensions and ought to be encouraged,” he said, earning a few laughs from the Utah lawyers. “Rather, I am questioning the propriety, indeed the sanity, of having a value-laden decision such as that made for the entire society by unelected judges.”
The contradiction in Scalia’s views is not merely self-evident, it’s downright head-spinning. Gay rights? Judges bad! People good! Voting rights? Judges good! People bad! This is, as Posner put it, a classic example of “’motivated thinking,’ the form of cognitive delusion that consists of credulously accepting the evidence that supports a preconception and of peremptorily rejecting the evidence that contradicts it.”
However, calling it a “delusion” rather than, say, a “bias” or an “orientation,” may be unduly harsh, particularly given the broader perspective held by most cognitive scientists today, that motivated cognition is a ubiquitous feature of human thought — which is all the more reason to seek proven ways of bringing it to light and countering it. Hence, from this perspective, which I adopt, the problem with Scalia is not that he engages in motivated thinking, but that he delusionally believes that he does not — but everyone else does. It’s the pseudo-certainty, stupid!
Back in 2005, Lawyers, Guns and Money blogger Scott Lemieux provided a concise summation of three well-known objections to “Scalia’s claim that originalism can ‘depoliticize’ constitutional discourse”:
The first is that, as Richard Posner (and countless others) have noted, the choice to use originalism is itself a political choice. The text of the Constitution does not require that it be interpreted by the use of any particular method….
Second, even among its adherents “originalism” does not yield determinate outcomes. The historical record is inherently inconclusive even for trained historians, and of course law office history generally falls well below such standards…. Pick any landmark case: Lochner, Brown, Roe – and you’ll find serious originalists on both sides of the question.
And finally, in practice Supreme Court justices are never fully constrained by grand theory.
As Lemieux makes clear, these are neither obscure problems, nor are they easily overcome. So anyone seriously trying to make the case for the apolitical virtues of originalism clearly has their work cut out for them. Not surprisingly, when it came time to write his book, Scalia chose to duck the hardest part.
Posner noticed. At one point in his review he explained, “[District of Columbia v.] Heller, probably is the best-known and the most heavily criticized of Justice Scalia’s opinions. Reading Law is Scalia’s response to the criticism. It is unconvincing.” Heller is the case that overturned D.C.’s gun laws, disregarding the Second Amendment’s preamble, and declaring an individual right to bear arms, regardless of any broader social purpose. But Posner deftly proceeds to show how the introduction to “Reading Law”, by Judge Frank Easterbrook, specifically undermines Heller, as well as casting doubt on Scalia’s position more generally.
Posner’s review is well worth reading in full — particularly any member of the media who ever writes Scalia’s name. But last year, as part of longer survey of conservative judicial mendacity, I devoted two blog posts [Part 1 and 2] to summarizing some of Posner’s themes. The following abbreviated version is sufficient to provide a sense of just how many different, yet often overlapping problems there are with Scalia’s brand of originalism:
(1) Judges like to portray themselves in a passive, constrained manner, even if they are not so philosophically inclined, for a variety of different reasons. Hence commonplace endorsements of textualism should be taken with a grain of salt.
(2) Scalia’s strict textual originalism makes no sense under even modest scrutiny — one source of incoherence — and he actually abandons it, but without fully admitting he’s doing so — a second source of incoherence.
(3) Scalia claims that textual originalism provides the one and only “objective” judicial approach to interpreting the law. But the argument poses its alternative as “non-originalism,” which is just a bogeyman, not something that actually exists. What’s more, Scalia himself abandons textual originalism by embracing a wide array of other judicial guiding principles.
(4) Scalia’s claim that textual originalism is ideologically neutral may sound plausible in the abstract, but neglects how things actually work in practice.
(5) Scalia attempts to describe how his theory produces a liberal result [thus 'proving' its ideological neutrality] in the case of flag-burning. But this only yields yet another vein of incoherence, as the example actually contradicts his interpretive theory. The First Amendment was originally about words, not symbolic speech, like flag-burning. As Posner put it, “an understanding of free speech that embraces flag burning is exceedingly unoriginalist. It is the product of freewheeling Supreme Court decisions within the last century.”
(6) Scalia mistakenly argues that textual originalism was the historically dominant judicial philosophy prior to around 1950, thus revealing an appalling lack of knowledge, and a complete inability to read legal texts. A passage quoted from Blacktrone says what matters is not the text alone, but the text along with (a) the context, (b) the subject matter, (c) the effects and consequence, or (d) the spirit and reason of the law. And that’s from a passage Scalia quotes to show Blackstone agreeing with him!
(7) Scalia shows extraordinary selectivity in ignoring whatever he wants to. (No news to anyone familiar with Bush v. Gore, for example — equal protection for ballots, but not voters?) But what Posner adds is that this very same habitual dishonesty plays a crucial role in bolstering Scalia’s argument for textual originalism as well. When the facts of a case do not support their argument, Scalia simply leaves them out, as Posner shows in his discussion of White City Shopping Center, LP v. PR Restaurants.
(8) Scalia’s inability to read others is matched by his inability to understand what he is doing himself. We’ve seen an example of this already above, in the flag-burning case. But Posner offers us another example as well: Scalia’s rejection of using legislative history. It’s not that Scalia actually rejects using legislative history: it’s that he says that he does so. And because he says that he rejects it, he cannot actually focus on doing it well.
Scalia, naturally, did not take this criticism lightly — nor did his co-author. You can read more about the controversy that unfolded here and here, for starters. But the mere fact that such fierce dispute continues — and between two conservatives, no less! — speaks far louder than the content of their debate. If Scalia were right, this simply should not — could not — be happening. It must mean one of them’s a dunce. But which? And if the political system has made them both high-ranking jurists, how exactly is politics to be overcome?
The simple answer is: It isn’t. The legal realists realized this long ago. How did we ever manage to forget the hard-won truths they taught us?