Thursday, 9 January 2014

“Justice Scalia and the Failure of the Reagan Revolution,” By Kevin R.C. Gutzman

"Justice Scalia and the Failure of the Reagan Revolution," By Kevin R.C. Gutzman
By Kevin R.C. Gutzman
January 9, 2014

Recent news of Justice Sonia Sotomayor's injunction of enforcement of the PPACA's (Obamacare's) contraception mandate against the Little Sisters of the Poor prompted me to consider the judicial history of the last thirty-three years. Specifically, it led me to think about the place of Justice Antonin Scalia in that history and the sense in which his performance on the Supreme Court reflects the failure of the Reagan judicial program.

Perhaps the most significant domestic-policy legacy of President Ronald Reagan was the resuscitation of originalism, which at one point was called "the Constitution," in constitutional law. Nowadays, scholars and judges, both on the right and on the left, commonly at least genuflect in the direction of the Constitution in the course of explaining their views and rulings. Prior to Reagan's election to the presidency, such was not the case.

Not only were pre-Reagan judicial performances apt to rest on nothing more significant than the justices' preferences, but the justices gave little indication of thinking they should hide this fact. For example, consider the Court's 7 2 ruling in Roe v. Wade (1973) that abortion was a constitutional right. Neither the general ruling itself nor the Court's labored discussion of the human gestational cycle had the slightest basis in the Constitution. To the contrary, as the topic is entirely unmentioned in the Constitution, it clearly fell under the Tenth Amendment's reservation of undelegated powers to the states.

Reagan's election owed much to the legal history that climaxed in Roe. That history prompted Evangelicals to abandon their historic abstinence from politics, organize themselves as a leading component of the New Right, and help Reagan to power. However, Evangelicals were not alone in criticizing Roe v. Wade. In fact, prominent liberal legal academic John Ely famously said of the Court majority's opinion in the case that it "is not constitutional law and gives almost no sense of an obligation to try to be."

Ely's is the best summary of the output of the Supreme Court in the period of several decades before Reagan's election. As I said before, Roe was merely a kind of culmination. Other notable opinions of the decades before­in Engel v. Vitale, Griswold v. Connecticut, Miranda v. Arizona, and even Brown v. Board of Education­also gave "almost no sense of an obligation to try to be" law.

In response, Reagan fought the good fight­not least by appointing his close aide and ideological companion Edwin Meese to be attorney general. Meese surrounded himself with serious originalist warriors such as Bruce Fein and Charles Cooper, and he launched a full-scale assault on the people who had been foisting "not constitutional law" off upon us. Their avatar, Justice William Brennan, fired back. According to Brennan, it was impossible to know what the Constitution was supposed to mean, and so . . . well, apparently and so one should just accept whatever Brennan's "Rule of Five" (with five votes, he could do anything) might yield.

Besides fighting on the battlefield of ideas, Reagan's men also busied themselves with the equally important task of staffing the federal courts with judges committed to adhering to the Constitution. So out of whack were the times that this was seen by the gatekeepers of conventional wisdom as an odd goal, as reflecting principles long thought dead­as inexplicable. By the time he retired in January 1989, however, Reagan had put history's chief judicial proponent of his approach in the chief justice's chair and named three other justices to the Court, along with a majority of inferior-court federal judges.

The shining light of this crop, nearly all believe, is Justice Antonin Scalia. Over and over, from the Court's bench, in public forums, and in his books, Scalia has argued for "originalism." Combative, quick, and intelligent, Scalia ought by now to have a large number of acolytes to show for his efforts.

But he does not. One reason is that his fellow Reagan appointee Sandra O'Connor seems to have found his go-for-the-jugular dissents off-putting and his readiness to overturn established doctrines in their entirety unnerving. Another, often unnoticed, is that his orignalism isn't very originalist.

For example, take Scalia's famous opinion in Johnson v. Texas holding that one has a right to burn the American flag. Although purportedly grounded in the First Amendment's Speech Clause, that decision striking down a Texas law was technically based on the Fourteenth Amendment's Due Process Clause: the Speech Clause, as the Court said in Barron v. Baltimore (1833), constrains only the Federal Government, and it was only in holding that the Speech Clause had been "incorporated" into the Fourteenth's Due Process Clause that the Court prepared the way for Johnson.

Scalia won love from liberals for respecting their freedom-of-expression shibboleth and support from conservatives for his supposed fealty to constitutionalism with Johnson. The problem is that Scalia has recognized that the Incorporation Doctrine is not grounded in the original understanding of the Due Process Clause. He has even said that he is "not going to re-fight the Incorporation battle."

Originalism? Nothing of the kind. Seemingly, the decision simply reflected the justice's policy preference.

Scalia performed similarly in Stenberg v. Carhart, the partial-birth abortion case. There, he and his close ally Clarence Thomas issued a concurring opinion explaining that while they would like to see the Court reconsider its Commerce Clause jurisprudence, that line of cases led them to the conclusion that they must uphold Congress's partial-birth abortion statute. Note: they had to provide the decisive votes in favor of upholding a congressional power never before recognized by the Court because the Court's Commerce Clause precedents led them in that direction.

Well, you might say, stare decisis exerts a powerful pull on Supreme Court justices. Since 1942's decision in Wickard v. Filburn, one could hold that virtually anything the Congress wanted to do in the way of business regulation fell under its Commerce Clause power. Abortion was a business. Therefore, Congress might ban this type of abortion. Scalia was only following stare decisis­and drawing Thomas along with him.

Fortuitously, his devotion to stare decisis coincided perfectly with Scalia's policy preferences.

If from nowhere else, reason for mentioning the Stenberg result's consistency with Scalia's personal preferences comes from Scalia's vote in NFIB v. Sebelius (2012) to strike down the PPACA on the ground that it exceeded the limits of Congress's Commerce Clause powers. Here Scalia seemed to be contradicting himself, to be voting to overturn the Wickard line of cases despite the majority's unwillingness to do so. How to account for that?

Once again, his vote was perfectly consistent with his policy preferences.

Leaving aside the Bush v. Gore debacle, perhaps Scalia's most important decision was that in Employment Division v. Smith (1990). In that case, Scalia wrote that although a legislature could not consistently with the First (meaning the Fourteenth, as noted above) Amendment adopt a law saying "No peyote use by members of the Native American Church," it could adopt a generally applicable law that interfered with some people's religious practices, viz., "No peyote use by anyone." The remedy for such a problem, if there was to be one, must be sought from the legislature, Scalia said.

Again, this position was perfectly consistent with Scalia's personal preferences.

Sotomayor's injunction of enforcement of the PPACA's contraception mandate seems to me easy to decide, in light of Scalia's 1990 Smith decision: the PPACA is generally applicable, after all, and Congress is open for business. If he is consistent in his stated reasoning, Scalia will side with the Obama Administration against the Little Sisters of the Poor.

In the old, pre-Reagan days, one knew what a Thurgood Marshall or William Brennan, not to mention a William Douglas or Earl Warren, would do. The Rule of Five was the rule of the day, gussied up in the academic garb of "Legal Realism." ("'Constitutional law,' Prof. Ely? Be real.") The Reaganites were going to put an end to that. Now, they believed, constitutional matters would be decided on the basis of principle, not politics.

How will Justice Scalia vote, if the matter comes before him? I have made clear my belief that in a large number of cases, Justice Scalia is guided more by his desires than by legal principle. I think that his voting to follow his own Smith precedent in the case is virtually impossible to envision. For him to do so would be entirely out of character.

Thus, the Reagan project has failed.