Justice Scalia

  • September 14, 2015
    Guest Post

    by Joseph Kimble, Distinguished Professor Emeritus, WMU-Cooley Law School

    *This post is part of ACSblog’s 2015 Constitution Day Symposium.

    In Reading Law, Justice Antonin Scalia and Bryan Garner make this assertion about the interpretive theory called textualism, which they endorse and expound:

    [W]e must lay to rest at the outset the slander that [textualism] is a device calculated to produce socially or politically conservative outcomes. Textualism is not well designed to achieve ideological ends, relying as it does on the most objective criterion available: the accepted contextual meaning that the words had when the law was enacted. A textualist reading will sometimes produce “conservative” outcomes, sometimes “liberal” ones. [Reading Law, p. 16.]

    But that assertion is belied by the overwhelmingly conservative results that textualism does in fact produce, especially in the cases that matter most. Who can honestly doubt it?

    In a recent article, I’ve summarized six empirical studies. (See pp. 30–35 for details and attribution.) Four of the studies show a strong ideological bent in Justice Scalia’s opinions. Another concludes from an analysis of more than 600 Supreme Court cases that the textual canons of construction “are regularly used in an instrumental if not ideologically conscious manner.” The other study examines a 25-year set of the Court’s cases and concludes that a principal defense of originalism — its constraining effect on judges — “is overstated at best and illusory at worst.”

    In one of the studies, Professor Geoffrey Stone polled colleagues to identify the 20 most important Supreme Court cases since 2000. In every one, Justice Scalia voted for the conservative position. And Stone notes that originalism “in no way” explains that voting record.

    Besides the empirical studies, I cite 11 other sources that cast doubt on the neutrality and consistency of Justice Scalia’s textualism. (P. 35 note 96.)

  • November 18, 2014

    by Caroline Cox

    On the Melissa Harris-Perry Show, Janai Nelson and Amy Howe consider the new Affordable Care Act challenge and how Justice Scalia could be the deciding factor.

    Leslie Griffin writes at Hamilton & Griffin on Rights on how the recent opinion of Judge Cornelia Pillard of the U.S. Court of Appeals for the D.C. Circuit in Priests for Life v. HHS explains why women’s equality is not a radical idea.

    Reuben Guttman writes in the International Business Times that the U.S. midterm elections were all about money but had very little substance.

    In The Washington Post, Andrea Peterson looks at the right of citizens to record the police.

    Geoffrey R. Stone argues in the Huffington Post that Senate should approve the USA Freedom Act in order to address the issues raised by the NSA’s surveillance program.

  • November 14, 2014

    by Caroline Cox

    In The Washington Post, E.J. Dionne Jr. considers whether the latest Supreme Court challenge to the Affordable Care Act, King v. Burwell, will force Justice Scalia to separate from his principles.

    John Harwood of CNBC asserts that “the justices have placed themselves in a political vise grip” by accepting to hear the legal challenge to Obamacare.

    At SCOTUSblog, Abbe R. Gluck also examines King v. Burwell and argues the case “is about the proper way to engage in textual interpretation.”

    In other Supreme Court news, Dahlia Lithwick asserts in The New Republic that there is not enough diversity of experience among the Supreme Court justices.

    At Hamilton and Griffin on Rights, Janai Nelson looks at the important role of race in the Alabama redistricting cases. The ACS panel discussion of the cases from earlier this week can be found here

  • October 17, 2014
    Guest Post

    by Eric J. Segall, the Kathy and Lawrence Ashe Professor of Law, Georgia State University College of Law

    Prior to the oral arguments in the 2013 same-sex marriage cases involving the federal Defense of Marriage Act (DOMA) and California’s Proposition 8, Supreme Court commentators committed to marriage equality debated just how fast the Court should act. On this blog, I urged the Court to strike down DOMA in the Windsor case but deny standing to the plaintiffs in the Prop 8 litigation in the hope that the logic of Windsor would lead lower federal courts to strike down state laws banning same-sex marriage. I advocated that approach fearful of the political backlash that would result from the Court creating a national rule imposing same-sex marriage on reluctant states in one bold strike.

    Those who wanted the Court to act quickly had two substantial objections. First, the Court’s job is to decide cases “under the law” not to make political predictions and calculations about the effects of those decisions. Second, gays and lesbians should not have been forced to wait one more day before achieving the marriage equality they deserve.

    Now that events have unfolded, it is important to address both of those objections (albeit with hindsight) because the arguments for and against the Court acting quickly on same-sex marriage shed important light on the appropriate role of the Supreme Court in our political system and how the Court should force important social change in the future.

  • January 22, 2014
    Guest Post

    by Ann C. Hodges, Professor of Law, University of Richmond School of Law

    This post is part of a series examining Harris v. Quinn, for which the high court heard oral argument on January 21.

    While there are many things one could say about the January 21 oral argument in Harris v. Quinn, three things stood out to this long-time labor lawyer. There was a long exchange between Justice Kennedy and the union’s lawyer about whether the issues about which public employers typically bargain are political issues. This portion of the argument cast doubt on the validity of the distinction that the Supreme Court has made between chargeable expenses, those related to collective bargaining and contract administration, and non-chargeable expenses, which include everything else but most importantly political expenditures. 

    This longstanding distinction has protected objecting employees from being forced to subsidize unions’ political activity. As suggested in the argument, however, anything relating to terms and conditions of employment of public employees involves government expenditures and the way government spends funds can always be characterized as a political issue.  The reach of this argument calls into question not only the model of exclusive representation that has been the basis of labor law in this country since 1935, but also collective bargaining for public employees in general.  If the union must represent all the employees in the bargaining unit, as it is required to do by law, it must negotiate for benefits and working conditions that affect government expenditures; some employees may view these as political positions to which they object. While it seemed that the National Right to Work Legal Defense Foundation’s argument questioned the constitutionality of public sector bargaining and exclusive representation, the lawyer assured the justices that those issues were not before them in this case. The implications for the American labor law system are clear, however.

    There was also a suggestion that the free rider problem could be solved by abandoning exclusive representation and allowing the union to represent only its members. This ignores two realities.  First, as a practical matter employers do not want to administer different pay plans, benefits and working conditions for similar groups of employees. The nonmembers would likely obtain what the union negotiates even without the requirement of exclusive representation. Second, as suggested by the union’s lawyer, what could be more coercive of associational rights than a system where unionized workers are paid more than nonunion workers doing the same job solely because they are union members? Although the attorney from the National Right to Legal Defense Foundation intimated that such a system would be constitutionally and legally permissible, it would be surprising if no legal challenge to such a disparity were mounted.