Jul 31, 2012

Posted in Uncategorized

Scalia Does Not Fear “Gotchas” From The Academy


From a very interesting interview with the inestimable Brian Lamb, Scalia says he is not worried that professors may point out that his own opinions may conflict with the rules he wrote in his new book with Garner:

LAMB: You’re judicial author – there’s a co-author and you’re the judicial author, ”knows there are some, and fears there might be many opinions, that he has joined or written over the past 30 years that contradict what is written here – whether because of the demands of stare decisis or because wisdom has come late.”

Second part, ”Were still your judicial author,” that’s you, ”does not swear that the opinions that he joins or writes in the future will comply with what is written here, whether because of stare decisis, because wisdom continues to come late or because a judge must be open to persuasion by council.”

And then you finish this by saying, ”Yet, the prospect of gotcha’s for past and future inconsistencies holds no fear.”

SCALIA: Yes. I thought that was pretty clever. Didn’t you?

LAMB: Well, I thought that was – it was food for questions.

SCALIA: I worry about people pointing out, you know, leading up to say, ”Well, you say thus and so and in your opinion 22 years ago … ” I didn’t review all of my opinions to be very sure that every one of them comports with the truth set forth here and I didn’t want to have to do that.

And, for the future, any judge has to be open to persuasion, to acknowledge his past ignorance if necessary. So, I, you know, I won’t swear that I’ll follow this in the future but I probably will.

LAMB: Gotcha’s.

SCALIA: Gotcha’s.

LAMB: Who – who deliver to you gotcha’s in your life?

SCALIA: Apart from my wife?

LAMB: Yes.

SCALIA: I would expect gotcha’s to come principally from academia; many in academia. Probably very many – most of academia does not agree with the theory of interpretation set forth in this book.

LAMB: Why?

SCALIA: Why? Because they prefer theories that augment the – the power of the judge and hence the power of the law professor. The theory of interpretation set forth here is a very – a very humbling one. It does not leave a whole lot up to the policy discretion.

In fact, it leaves nothing up to his policy discretion. The name of the game is to give the fairest reading to what the people’s representatives have enacted. That’s what a judge is supposed to do.

Now, that is an uncongenial approach to someone who wants to do good, who wants to use his office as it can be used to do things that he thinks are good for the society. If one has that zeal, one will not like the approach set forth in this book.

In other words, Justice Scalia doesn’t care about all the articles I (and countless others) have written pointing out the numerous inconsistencies among his various opinions (forgetting about the book).
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  • Steve

    So he can sneer at the concept of consistency so that he can tailor his position in a given case to ensure that a certain result is reached while ignoring his analyses in other opinions that would lead to a result that he does not like. He seems to be praising intellectual dishonesty here, don’t you think?

    • Josh Blackman

      Elsewhere in the interview he called it “later-received wisdom.” In other words, with each case, he becomes more wise, and more right, even if in previous cases he was wrong. Was it Brandeis or Frankfurter who said something like, it is better to get it right eventually than to keep getting it wrong.

      • Steve

        I thought it was Rutledge.

        • Josh Blackman

          Henslee v. Union Planters Nat. Bank & Trust Co. – 335 U.S. 595 (1949)

          MR. JUSTICE FRANKFURTER, dissenting.
          Wisdom too often never comes, and so one ought not to reject it merely because it comes late. Since I now realize that I should have joined the dissenters in the Merchants Nat. Bank of Boston case, 320 U. S. 256, I shall not compound error by pushing that decision still farther. I would affirm the judgment, substantially for the reasons given below. 166 F.2d 993.

          • Josh Blackman

            Test

  • Steve

    I suspect that he would prefer not to have anyone appraise what he decides and writes, but given that professors and other judiciary-studiers exist, what should they go on to evaluate his judicial activity if not what else he has said? Would he be pleased if they looked at each opinion or decision only as if it belonged in a separate universe, with no connection to anything else that he had ever written?

    • Josh Blackman

      Elsewhere in the interview he suggested that he writes his dissents for law students. Well, law students are taught by law professors, and presumably the professors teaching the class read and analyze the dissents. His position is nonsensical.

  • http://www.facebook.com/profile.php?id=681863557 David Welker

    And this is the man who thinks he gets to rule over us and thinks that he and the fellow members of the Court alone have the right to declare statutes unconstitutional based on newly invented doctrines, such as the Barnett doctrine. He is no more respectful of our democratic representatives than others he has criticized. My respect for Justice Scalia has fallen precipitously based on the blatant inconsistency he displays in his acceptance of “creative” reasoning. Of course, that does not matter. At least not to him. Because, Justice Scalia thinks he has a right to rule over me and every other American regardless of whether we respect his judgment or his intellectual integrity.

    Justice Scalia may feel that he has no obligation to worry about logical consistency. But those he would imagine himself fit to rule over are likely to think in a contrary manner. Of course, when people have criticized Justice Scalia for exercising tremendous power and using (abusing?) his power to decide a Presidential election (again, in a doctrinally “creative” way), he has responded by saying we should “get over it.” When people have criticized him for twisting the words of the First Amendment in a manner that fundamentally threatens the legitimacy of our republic in Citizens United, I suppose he would say, once again, that we should “get over it.” And I suppose if he had gotten his way in making sure that millions of Americans went without health insurance, he would, once again, tell us to simply “get over it.” Oh, and another thing he would tell us. He doesn’t care about the “gotchas” brought up by academics, who point out instances of glaring logical inconsistency. After all, probably those academics are “liberal” and that means that one can safely ignore the logical truths they point out. Fundamentally, it appears that Scalia believes himself to be above everyone and unaccountable to no one. Apparently, not even the dictates of reason or the necessity for logical consistency constrain him, much less any source of accountability deriving from his fellow citizens.

    Justice Scalia, when his career is over, will be best known for being an inconsistent hypocrite. For being a philosopher king who pretended to condemn philosopher kings. It is hard to see anything admirable in THAT.

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