You Have (Surprising) Friends In Us: Towards An Apolitically Described Judiciary

By: JAMES JOSEPH BERNSTEIN


Justice Antonin Scalia was a judicial titan, championing philosophies such as originalism and textualism. The Justice defined these to mean that the words of the Constitution or statutes, respectively, are to be interpreted not in line with “what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”[1] In short, these philosophies seek to curtail the “looser”[2] interpretive tendencies of judges. Unsurprisingly, this understanding placed Scalia firmly in the reported “conservative” camp on the Court. Moreover, in this bold attempt to advocate for a form of judicial restraint, the late Justice gained many critics. Judge Richard Posner, a fellow Republican-appointee, called Scalia’s dissent in Obergefell v. Hodges “radical” and further said his judicial philosophy “verges on [that of a] majoritarian theocracy.”[3] In other instances, Posner further criticized Scalia’s broader originalist tendencies stating that the philosophy “denies the legitimacy of flexible interpretation designed to adapt the Constitution…to current conditions.”[4] Posner is not alone by any stretch of the imagination: legal scholars, fellow judges, and political commentators alike were quick to assail many of the Justice’s opinions. Broadly, the attacks on the Justice derive from his regular stymying of those in favor of the most socially progressive readings of the Constitution.

However, though much ink has been spilled to highlight Scalia’s conservative jurisprudence, much less has been written about his more progressive leanings – namely, defending the rights of the accused. To call Scalia’s stance on the issue anything less than staunchly in accordance with progressive ends would do a disservice to his opinions. Take, for example, the majority opinion in Kyllo v. United States: on the suspicion that the petitioner was growing marijuana in his attic, agents used “a thermal imaging device” to scan his home and compare the heat emission relative to its neighbors.[5] The evidence acquired during this initial, warrantless, operation ultimately led to Kyllo’s indictment.[6] The Scalia-authored opinion rejected this scheme as unconstitutional. In the decision, Justice Scalia determined that when “the government uses a device that is not in general public use” – such as a thermal imaging device – “to explore…a private home…the surveillance is a Fourth Amendment ‘search’ and is presumptively unreasonable without a warrant.”[7] Consider this view in light of the supposedly “inflexible” interpretative shortcomings of the philosophy that the Justice espoused: would an antiquated, unbending analytical framework fail to accommodate advanced technologies which violate an individual’s constitutional rights? Surely not.

Of course, Scalia’s liberal leanings were not limited to criminal rights. Rather famously, in Texas v. Johnson, Justice Scalia broke from his supposed conservative contemporaries and struck down Gregory Lee Johnson’s conviction for burning an American flag, a “venerated object.” This opinion, by Scalia’s own admission, ran counter to his own personal preference.[8] Nonetheless, the majority determined Johnson’s burning of the flag was “expressive conduct” and “overtly political [in] nature” given that it occurred at the Republican national convention.[9] In then-Chief Justice Rehnquist, writing for part of the minority, stated that “for more than 200 years, the American flag has occupied a unique position as the symbol of our Nation, a uniqueness that justifies a governmental prohibition against flag burning.”[10] Again, had Justice Scalia had his way – had he truly sought to institute a “radical” regime – or if his philosophy erred towards the most “inflexible” interpretation, one may have expected Justice Scalia to side with the Rehnquist authored opinion: the minority in this case, strangely sans Scalia, represents the one with a supposedly stronger reverence for tradition and two century plus understandings of the flag. Instead, though, we see a more “liberal” Scalia in full effect: overturning not only a criminal conviction but venerating criticism of the state.

Now, to be sure, I seek not to purely defend originalism – nor am I one to say that it is a framework that consistently leads individuals towards the most socially progressive outcomes. To the contrary, many of the criticisms directed at Justice Scalia and his originalist judicial progeny are more than warranted. Yet, to reject his stances as wholly conservative or that it is always unable to adapt in the face of changing circumstances overlooks where critics would, in fact, be in harmony with the Justice’s view (myself included).

In general, then, as fears of the Court growing seemingly more conservative increase, we need to pursue a more nuanced perspective of our understanding of the Court – one that emphasizes a broader understanding of the justices’ jurisprudence instead of placing them within the political spectrum reserved for their peers in Washington. In short, though a conservative-liberal binary may be an attractive route to aid in our anticipation of the Court’s outcomes, doing so fails to adequately capture the panoply of possible opinions that the justices regularly reach. Coincidentally, Justice Scalia’s successor, Neil Gorsuch, exemplified this seemingly apolitical judging with his opinion in Bostock v. Clayton County: the New York Times, doubtlessly surprised by this ostensibly bipartisan decision, praised the “conservative favorite” Justice for his majority opinion.[11] However, to this end, though conservative groups may laud Justice Gorsuch (or others of Justice Scalia’s newly appointed disciples), the judges themselves may perhaps be insulated from the inner workings of the capital – perhaps, it seems, they are not moral arbiters after all but, indeed, legal ones who ultimately operate independent of politics.


[1] See Nina Totenberg, Antonin Scalia, Known for Biting Dissents, Dies at 79, NPR (2016), https://www.npr.org/2016/02/13/140647230/justice-antonin-scalia-known-for-biting-dissents-dies-at-79

[2] See Richard Posner, In Defense of Looseness, NEW REPUBLIC (2008), https://newrepublic.com/article/62124/defense-looseness

[3] See Richard Posner and Eric J. Segall, Justice Scalia’s Majoritarian Theocracy, N.Y. TIMES (2015), https://www.nytimes.com/2015/12/03/opinion/justice-scalias-majoritarian-theocracy.html

[4] See supra note 2

[5] See Kyllo v. United States, 533 US 27 (2001)

[6] See id.

[7] See id.

[8] See Justice Scalia on the Record (ABC television broadcast Apr. 24, 2008)

[9] See Texas v. Johnson, 491 US 397 (1989)

 

[10] See id., (Rehnquist, CJ., dissenting)

[11] See Michael D. Shear, Gorsuch, Conservative Favorite Appointed by Trump, Leads Way on Landmark Decision, N.Y. Times (2020), https://www.nytimes.com/2020/06/15/us/politics/gorsuch-supreme-court-gay-transgender-rights.html

 

 

 

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