.: I Respectfully Dissent :.

Twenty years of Our Hero

Cross-posted at Stubborn Facts.

Last week, I noted that I had missed the twentieth anniversary of Justice Scalia's confirmation; today marks the actual twentieth anniversary, in the sense that twenty years ago Scalia was sworn in and assumed his duties. Mike Diminio has these thoughts over at Prawfsblawg, and I felt that it was perhaps worth marking the occaision by remarking on what I consider to be the brightest of Nino's shiniest of shining moments.

There are, of course, so many that could be held up, but I tried to restrict myself to picking only five. This listing is written for a lay audience, so most citations have been omitted, and I'm playing a little fast and loose with ordinary quotation rules.

And the winners are...

Johnson v. Transportation Agency
480 U.S. 616, 657 (1987) (dissent)

Johnson was not Justice Scalia's first dissenting opinion on the Supreme Court, but it was the first one that could melt steel at a hundred yards.

In 1979, when the Santa Clara County transportation Agency announced a vacancy for the promotional position of road dispatcher, they sought to apply an affirmative action plan which they had adopted to the hiring. The position required at minimum four years of dispatch or road maintenance with the county. Having interviewed twelve applicants, the Agency they declined to promote Johnson, and instead promoted Diane Joyce. Both applicants were well qualified for the job: Joyce had worked for the County since 1970, serving as an account clerk until 1975, and thereafter as a road maintenance worker, while Johnson (after past employment that included working as a supervisor and dispatcher) had worked for the County since 1967, first as a road yard clerk, and since 1977, as a road maintenance worker. The agency conceded that its decision to promote Joyce was based on their affirmative action policy. Johnson sued, and the District Court held that because "Joyce's sex was the determining factor in her selection," the Agency's affirmative action plan violated Title VII of the Civil Rights Act of 1964.

Writing for the Court, Justice Brennan rejected this result, and concluded that "an employer seeking to justify the adoption of an affirmative action plan need not point to its own prior discriminatory practices, but need point only to a conspicuous imbalance in traditionally segregated job categories."

"With a clarity which, had it not proven so unavailing, one might well recommend as a model of statutory draftsmanship," declared Justice Scalia - then six months into his freshman term - for himself, Justice White and Chief Justice Rehnquist:

Title VII of the Civil Rights Act of 1964 declares ... 'It shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex ...[or] to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's ... sex.' The Court today completes the process of converting this from a guarantee that race or sex will not be the basis for employment determinations, to a guarantee that it often will.

Having proceded to shred the Court's reasoning, Scalia drove home the point with the parting shot that the "only losers in the process are the Johnsons of the country, for whom Title VII has been not merely repealed [by the Court] but actually inverted. The irony is that these individuals - predominantly unknown, unaffluent, unorganized - suffer this injustice at the hands of a Court fond of thinking itself the champion of the politically impotent." A formidable declaration of intent. A generation of law students sat up andstarted paying attention.

Morrison v. Olson
487 U.S. 654, 697 (1988) (dissent)

Described - without the slightest risk of overstatement - as "the best opinion of the modern era" by Ted Olson, Justice Scalia's solo dissent in Morrison is both a magisterial display of the art of dissent and a masterful exposition of conservative legal thought. At issue was the independent counsel law: for reasons that do not matter for our purposes today, an independent counsel, Morrison, was appointed to investigate certain accusations against Olson. The liberals cheered, and the conservatives knashed their teeth (some years later, as all will recall, the shoe was on the other foot, as independent counsel Kenneth Starr investigated President Clinton). In any event, Olson's response was to suggest that the independent counsel law was unconstitutional. In an eight to one decision authored by the Chief Justice, the Supreme Court said that it was not.

Writing for the one, Justice Scalia laid out what might be considered the cornerstone of the much-discussed and usually completely misunderstood doctrine called the "unitary executive theory." Quoting Article II Section 1's grant that "The executive Power shall be vested in a President of the United States," Scalia argues that "this does not mean some of the executive power, but all of the executive power. It seems to me, therefore, that ... [the statute is void] if the following two questions are answered affirmatively: (1) Is the conduct of a criminal prosecution (and of an investigation to decide whether to prosecute) the exercise of purely executive power? (2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power? Surprising to say, the Court appears to concede an affirmative answer to both questions, but seeks to avoid the inevitable conclusion that, since the statute vests some purely executive power in a person who is not the President of the United States, it is void." The logic is watertight. "While 'all legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate AND House of Representatives, U.S.Const., 'THE executive Power shall be vested in A President of the United States." And that, Said Scalia:

That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish -- so that "a gradual concentration of the several powers in the same department," Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.

"If to describe this case is not to decide it," scorned Scalia, "the concept of a government of separate and coordinate powers no longer has meaning." It is riveting stuff.

Adarand Constructors v. Pena
515 U.S. 200 (1995) (concurrence)

The most eloquent statement on the Rehnquist Court's (and most legal conservatives') view on race and affirmative action arrives in a single, terse and actually quite beautiful paragraph. There is little point in describing what can be conveniently quoted:

In my view, government can never have a "compelling interest" in discriminating on the basis of race in order to "make up" for past racial discrimination in the opposite direction. Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution's focus upon the individual, see Amdt. 14, §1 ("nor shall any State . . . deny to any person" the equal protection of the laws), and its rejection of dispositions based on race, see Amdt. 15, §1 (prohibiting abridgment of the right to vote "on account of race") or based on blood, see Art. III, §3 ("no Attainder of Treason shall work Corruption of Blood"); Art. I, §9 ("No Title of Nobility shall be granted by the United States"). To pursue the concept of racial entitlement--even for the most admirable and benign of purposes--is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.

Just magnificent.

TIE: Kyllo v. United States and Rogers v. Tennessee
533 U.S. 27 (2001) (Opinion of the Court and 532 U.S. 451 (2001) (dissent)

I just can't pick between these two cases, both decided in 2001 - so I'm going to cheat on my own rules and declare a tie. Kyllo is a case about Fourth Amendment searches, and my suspicion is that Justice Scalia's contribution to Fourth Amendment jurisprudence will be his most lasting legacy on the Court. Danny Kyllo cultivated marijuana in his home, a process which requires high-intensity heat lamps. Thus, although the police could not determine by looking at the exterior of the house with the naked eye, by using an infra red scanner, they were able to detect the heat blooms, and on that basis obtain a warrant. The case thus presented the question not of whether a warrantless search is reasonable (it is not, as Scalia had previously explained, some eleven years before, writing for the Court in a case called Illinois v. Rodriguez), but whether the infra red scan was a Fourth Amendment search.

Writing for the Court, Justice Scalia answered "yes." In a superb exposition of how the originalist's constitution applies to modern needs, Scalia explained that "it would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology ... [but] we think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search." It is not immediately clear how Scalia's detractors, who love to paint his Raich v. Ashcroft concurrence as an example of his results-driven distaste for drug users, square away his authorship of this landmark ruling that cut in favor of a pothead.

In Rogers, the Supreme Court was a question of the common law "year and a day" rule. At common law, whence American law evolved, a person could not be guilty of murder if their victim failed to expire within one year and one day. Wilbert Rogers stabbed his victim, James Bowdery, in May 1994, but Bowdery remained in a coma until some fifteen months later. A jury scarcely hesitated to find Rogers guilty under the Tennessee murder statute. Although that statute does not mention the year and a day rule, Rogers argued that the rule persisted as part of the common law of Tennessee. The Court of Appeals disagreed, and determined that Tennessee had "abolished all common law defenses in criminal actions" in a statute passed in 1989. Not so, said the Tennessee Supreme Court: "the 1989 Act had not abolished the [year and a day] rule." But "after reviewing the justifications for the rule at common law, however, the [Tennessee Supreme] court found that the original reasons for recognizing the rule no longer exist[ed]," "abolished the rule as it had existed at common law in Tennessee," and affirmed Rogers' conviction. Fair enough, said Justice O'Connor, for the United States Supreme Court.

Not so fast, said Justice Scalia, in dissent, writing for himself and Justices Thomas, Stevens and Breyer: Federal Courts are supposed to defer to state courts on matters of their own law. So if - as the Tennessee Supreme Court has said - the common law rule was in force when Rogers murdered Bowdery, then in approving the Tennessee Supreme Court's decision that Rogers' conviction stands, the United States Supreme Court "approves the conviction of a man for a murder that was not murder (but only manslaughter) when the offense was committed ... [and] thus violates a principle–encapsulated in the maxim nulla poena sine lege–which 'dates from the ancient Greeks' and has been described as one of the most 'widely held value-judgment[s] in the entire history of human thought.'" More peculiarly yet, wrote Scalia:

Today’s opinion produces, moreover, a curious constitution that only a judge could love. One in which (by virtue of the Ex Post Facto Clause) the elected representatives of all the people cannot retroactively make murder what was not murder when the act was committed; but in which unelected judges can do precisely that.

Rogers is a complicated opinion about a complicated subject, but it contains everything that I love about Scalia's opinions - the barbed comments, the verbal arched eyebrows, the sheer unavoidable logic. Well worth a read.

McCreary County v. ACLU of Kentucky
545 U. S. __ (2005) (dissent)

Last, but by no means least, is Justice Scalia's dissent in a fractious establishment clause case that marked the last days of Chief Justice Rehnquist's tenure on the Supreme Court. Ralph Rossum's recent book on Justice Scalia described his jurisprudence as being rooted in "text and tradition"; the latter element is certainly on display in this case. The background to the case was essentially as follows: McCreary County posted in its courthouse a display of the ten commandments. The ACLU, as it is wont to do, sued, alleging that this constituted an establishment of religion; the county then modified the display, supplementing the Ten "Commandments [with] framed copies of the Magna Carta, the Declaration of Independence, the Bill of Rights, the lyrics of the Star Spangled Banner, the Mayflower Compact, the National Motto, the Preamble to the Kentucky Constitution, and a picture of Lady Justice," and entitling the collection “The Foundations of American Law and Government Display.” That didn't satisfy the ACLU, and it did not satisfy Justice Souter and his five-man majority, who concluded that the whole shebang was unconstitutional.

McCreary County stands out to me, because I honestly do not know if Justice Scalia's opinion suffices to rebut Justice Souter's opinion. I'm on the fence on the merits, but one has to concede that, as dissents go, it is forceful stuff. Surveying the landscape of religion in public life, Scalia observed that:

George Washington added to the form of Presidential oath prescribed by Art. II, §1, cl. 8, of the Constitution, the concluding words “so help me God.” The Supreme Court under John Marshall opened its sessions with the prayer, “God save the United States and this Honorable Court.” The First Congress instituted the practice of beginning its legislative sessions with a prayer. The same week that Congress submitted the Establishment Clause as part of the Bill of Rights for ratification by the States, it enacted legislation providing for paid chaplains in the House and Senate ... [and] the day after the First Amendment was proposed, the same Congress that had proposed it requested the President to proclaim “a day of public thanksgiving and prayer, to be observed, by acknowledging, with grateful hearts, the many and signal favours of Almighty God.” ... Nor have the views of our people on this matter significantly changed. Presidents continue to conclude the Presidential oath with the words “so help me God.” Our legislatures, state and national, continue to open their sessions with prayer led by official chaplains. The sessions of this Court continue to open with the prayer “God save the United States and this Honorable Court.” Invocation of the Almighty by our public figures, at all levels of government, remains commonplace. Our coinage bears the motto “IN GOD WE TRUST.” And our Pledge of Allegiance contains the acknowledgment that we are a Nation “under God.” As one of our Supreme Court opinions rightly observed, “We are a religious people whose institutions presuppose a Supreme Being.”

Whether Scalia does enough, in this case, the reader will have to judge for themselves. But he assembles a formidable argument that demands respect and attention.

* * *

In truth, it was difficult to narrow the list. What to pick? So much left out! The reader will see that I've tried to pick cases that cover the entire twenty year period, and in the end, it was tough to pick between McCreary County and Crawford v. Washington. There are so many gems omitted here; to name but a few: Plaut v. Spendthrift Farm; McConnell v. FEC; Lamb's Chapel v. Center Moriches School District; Cruzan v. Missouri; Employment Division v. Smith; Lujan v. Defenders of Wildlife; Maryland v. Craig; Harmelin v. Michigan; Minnick v. Mississippi; BMW v. Gore; Tyler Pipe Industries v. Dept. Of Revenue; PGA Tour v. Martin; County of Riverside v. McLaughlin; Hamdi v. Rumsfeld...one hardly knows where to begin (or end)! The fond hope of Ninoville, once it's complete, will be to make it easier to navigate this vast corpus of work.

Justice Scalia has served two decades on the Court. God willing, we are only halfway into the adventure.

Update: Steve gets in on the fun, citing PGA Tour v. Martin, Lambs Chapel, and Morrison v. Olson..

Posted 21:21, 9/26/2006 by Simon | Filed under: Scalia | Comment on this

Gender diversity among SCOTUS clerks

I wanted to kind of draw together a couple of thoughts I've posted on this subject - I posted about it at Stubborn Facts, but then kind of wandered off on new tracks in the comments there and at other places.

The background to this is basically that the number of female law clerks hired for October Term '06 is low relative to recent terms - Scalia, Souter, Thomas and Alito have no female clerks, our Fearless Leader, Stevens and Kennedy have one apiece, while Breyer and Ginsburg each have two, making this the most male crop since OT'92. The New York Times checked with Souter and Breyer - two of the most prolific hirers of female clerks, in point of fact - neither of whom are particularly troubled by this, ah, "event", ascribing it to random statistical fluctuations in the applicant pool.

Slate's Dahlia Lithwick, however, felt a little aggrieved by all this - not, mind you, that the numbers are down, per se, but rather, that nobody seems to care: "the issue," complans Lithwick, "[is] the unbelievable lack of diversity in the high court's chambers, and why some of the most important jurists in America — from some 'feeder judges' to Justices Kennedy and Scalia — just don't care." But with all due respect - is there any reason that we ought to care? Does gender diversity matter in the context of the work done by the Supreme Court? That surely depends upon whether or not gender provides a different perspective on matters of law. I doubt it. Justice Ginsburg observed to the New York Times that since Justice O'Connor's retirement / move to senior status, "I have been all alone in my corner on the bench." Really, Ruth? All alone? It seems to me that you have three colleagues with whom you agree with in upwards of 92% of the cases you sat for. (Heck, Ruthie, you even convinced me to join you in your corner of the bench at least once this term). Alone?

Ginsburg's comment seems to drip with the same sensibility as Lithwick's: that there is a distinctly female perspective on matters of law, and its absence (or even diminishment) is thus to be mourned. Perhaps I have simply had the good fortune to be surrounded with women who are in the habit of thinking for themselves - behavior one might not unreasonably expect feminists to encourage - but I find it a little hard to believe that there is A singular "female" perspective on law. What a bizzare view of the law one must have in order to think that the gender (as opposed to, say, their legal or political views) of the clerk writing the cert pool memo for an ERISA case will change whether they think it is worth granting cert. What kind of bizarre parallel universe does Lithwick live in to believe that the meaning of RICO varies depending on whether a man or a woman looks at it. Aren't feminists supposed to be OPPOSED to the dehumanizing of women, OPPOSED to ascribing characteristics to persons based on gender, rather than doing everything possible to further such classifications? What is THE "female" opinion on third party standing? What is a "female" perspective on the Detainee Treatment Act? Is there a "female" perspective on excessive damages - and if so, why did Justices Ginsburg and O'Connor find themselves on opposite sides of BMW v. Gore? Is there a "female" perspective on AEDPA, and if so, why did Justices Ginsburg and O'Connor find themselves on opposite sides of Lockyer v. Andrade?

Let's further consider some of the cases that spring to mind from last term. I am not sure what difference a clerk's (or Justice's) gender makes to the question of whether the due process clause "prohibit[s] Arizona’s use of an insanity test stated solely in terms of the capacity to tell whether an act charged as a crime was right or wrong," Clark v. Arizona, whether a dam "raises [sufficient] potential for a discharge ... [that] §401 [of the Clean Water Act] is triggered and [thus] state certification is required," S.D. Warren Co. v. Maine Bd. of Environmental Protection, and while one's gender might, dubitante, have some effect on one's view of whether abortion should be protected by the Constitution, it should have no effect on one's view of whether it is, or still less, one's view of whether sections of a law restricting it are severable, Ayotte v. Planned Parenthood. I do not see how the posession of either breasts or bollocks changes either the answer or the process of determing the answer to the question of whether "[a] plaintiff in a retaliatory-prosecution action must plead and show the absence of probable cause for pressing the underlying criminal charges," Hartman v. Moore, still less whether "[a] refusal to apply the Federal Tort Claims Act’s judgment bar is open to collateral appeal," Will v. Hallock? Does being female bring particular insight into the scope of the probate exception, Marshall v. Marshall (and if so, why was it that seven of the males on the court agreed with the female)? What effect does gender have on whether or not, in an action under 18 U.S.C. §922, a jury being "instructed that [the] petitioner had the burden to establish her defense by a preponderance of the evidence ... run[s] afoul of the Due Process Clause," Dixon v. United States? And I search Justice Ginsburg's Washington v. Recuenco in vain for evidence that it originates from a peculiarly female perspective.

Pace Lithwick, I can only assume that the only reason anyone would care about the gender balance of clerks is because they think that (a) there are innate gender and racial characteristics and (b) that those characteristics pertain to the process of law. As we have seen above, (a) can easily be dismissed as specious. Given that women are a majority of the electorate, if they operated as anything even vaguely resembling a block vote, every political campaign would be aimed at them. As regards (b) - perhaps so, but only if you think both that there is a "female" view of what the law ought to be (an idea dismissable in the space of a five minute meeting involving Representatives Katharine Harris and Loretta Sanchez), and that the job of a court is to implement one's own policy views (as there is little doubt Lithwick believes). But if you're a formalist (Scalia, Thomas), or even if you merey think that you're being faithful to the law as it's written (Kennedy) it makes no difference at all what gender your clerk is. How far we are from Martin Luther King's dream of a world where a person will be evaluated on the content of their heart rather than the color of their skin; how far we also appear to be from the attendant dream of a world where a person will be judged for her mind, for her intellect and opinions, rather than her X-chromosome complement.

Posted 15:07, 9/1/2006 by Simon | Filed under: Supreme Court | Comment on this