Prof. Gil Seinfeld (Michigan) writes at the Michigan Law Review First Impression about his experiences as one of Justice Scalia’s liberal “counter-clerks” during the OT 2002 term. In particular, he discusses his involvement in two important cases decided that term.
First, with respect to Lawrence v. Texas, he asked the Justice to be excused from any involvement in the case:
The Court decided Lawrence v. Texas that year, which raised the question of whether a Texas law criminalizing homosexual sodomy was constitutional. The majority said no and, predictably, in an opinion seething with bitterness and hostility, Justice Scalia dissented.
Even before I read the Justice’s opinion, I knew I’d want no part of it. I didn’t want to help hone the Justice’s arguments or improve his prose. I didn’t even want to point out a typo or a citation error. I remember wavering between two possible courses of action. One option was to fake it. I could read the draft (or not), claim to have found no warts and to have no suggestions, and just pass it along to the next guy. The other was to ask the Justice for permission to sit this one out. I chose the latter.
I do not remember exactly what the Justice said to me when I came to him with this request, but I remember that it went well. I remember that he communicated that he understood why I wanted to opt out and that he had no problem with it. And I remember that I made it through the rest of the clerkship without a shred of concern that the Justice bore ill feelings about the whole thing.
Second, he discussed Grutter and Gratz, and how he was disappointed that Justice Scalia did not use originalism to counter the argument that during Reconstruction, Congress enacted many race-conscious laws.
It was with particular interest, then, that I considered my role as a counterclerk in connection with two of the blockbuster cases on the docket during October Term 2002: Grutter v. Bollinger and Gratz v. Bollinger. Those cases involved equal protection challenges to the affirmative action policies employed by the University of Michigan in connection with law school (Grutter) and undergraduate (Gratz) admissions. I tended to agree with the views of the Justice’s critics with respect to the invisibility of originalist analysis in Croson and Adarand. And it seemed to me that, if ever there was a time for a Scalia counterclerk to perform his unique duty, this was it.
If the Justice could show why the measures enacted by Reconstruction era Congresses were inapposite to the question of whether modern affirmative action policies are permissible under the Fourteenth Amendment, so be it. If there was evidence that courts were skeptical of Reconstruction era legislation that conferred benefits exclusively on blacks, fine. Or, if the Justice felt that his commitment to originalist constitutional interpretation ought to give way to other considerations, he could identify those considerations and explain his position. But if he could not do any of these things, it seemed to me, the Justice needed to be on the other side of these cases. And I told him so.
If my intervention was of any consequence, it is not reflected in the opinions in Grutter or Gratz. In the former case, Justice Scalia penned a brief dissenting opinion and joined the dissenting opinions authored by the Chief Justice and Justice Thomas; in the latter, he joined the Chief Justice’s opinion for the Court. Not one of these opinions contains even a syllable of originalist argument.
Perhaps the Justice believed that the Court abandoned originalism in connection with race and equal protection inBrown v. Board of Education, and that there could be no turning back. Perhaps the Justice thought that the race-conscious measures enacted by the Reconstruction Congress were distinguishable from the sorts of affirmative action policies that came before the Court during his tenure, and that the historical record therefore did not speak clearly to the questions at hand. We do not know. His opinions shed no light on the matter. To me, at least, this is gravely disappointing, and it gives the lie to those who regard the Justice as an unfailing champion of adjudicative rectitude.
This is a position advanced by the Constitutional Accountability Center in both Fisher cases, and as far as I am concerned, there is still no originalist rebuttal to this point that I find compelling.