A slap in the face from Justice Scalia
Justice Scalia was recently in England, where he gave an interview on a wide range of subjects. You can read the overview story here and click on the audio program (or perhaps I should say "programme"), which contains some introductory material and commentary, but then proceeds mostly uninterrupted. Here are some highlights:
1) When asked whether part of his job is to safeguard the image of the United States overseas, Justice Scalia answers yes, and that he does so by traveling around the world as a good will ambassador. Given the likely reception of the rest of his comments (especially number 4 below), he might want to rethink this answer.
2) In response to a question about how politicized the U.S. judicial appointments process is relative to the process in other countries, Justice Scalia puts the blame on judicial activism. This is a familiar charge and there's a certain logic to it. If the Supreme Court only exercised technical legal judgment, then no one would care about the ideology of judicial nominees. The problem with the answer is that it ignores just about all of American history. Judicial appointments have been politically charged (albeit over different issues) since the early Republic. And of course Justice Scalia's own judicial philosophy is now (rightly) perceived as one of the political positions in that debate.
3) In response to the charge that the Supreme Court divides along left/right ideological lines, Justice Scalia insists that this is not so, invoking his decisions in cases involving the rights of the accused (specifically the Apprendi line of cases, though he doesn't mention them by name), and his decision in the flag-burning case of Texas v. Johnson. I have considerable sympathy for Justice Scalia's resistance to reducing all legal issues to conventional left/right divisions but I think these examples pretty clearly undermine his broader jurisprudential claims to neutrality.
As for Apprendi, the majority opinion of Justice Stevens in that case (joined by Scalia), relies to some extent on historical argument, but largely makes inferences from highly abstract propositions about the value of the jury right. Justice Scalia also joins a much more historically based concurrence of Justice Thomas, but it is hard to see how the historical arguments do the work, given that Justice O'Connor, in dissent, marshals strong historical arguments for the contrary result. And in Texas v. Johnson, Justice Scalia simply joins Justice Brennan's majority opinion, which doesn't make any effort at all to ground its result in the original understanding.
These cases demonstrate that Justice Scalia is not a down-the-line conservative but, as Chris Eisgruber argues persuasively in The Next Justice, they do not display the power of originalism. Instead they show that Scalia finds a certain sort of libertarianism attractive on normative grounds.
4) In response to a question about the "ticking bomb" scenario, Justice Scalia says that the 8th Amendment ban on "cruel and unusual punishment" does not necessarily apply to torture because torture for information is not "punishment." He then goes on to say that he thinks it would be crazy not to use at least some force to stop an attack on an American city (he picks Los Angeles). The level of force that Justice Scalia thinks pretty clearly permissible is a "slap in the face" and also, when asked by the interviewer, Alan Dershowitz's proposed sterile needle under the fingernail. Justice Scalia goes on to say that hard questions are posed by substantially greater force under conditions of lesser certainty.
It's not entirely clear whether Justice Scalia is making only a moral claim or also a legal claim. If he's just making a moral claim, that's fair enough. His main point here seems to be to say that when and whether to torture is a legitimately hard question, at least in theory. But of course Justice Scalia is famous for denouncing purely moral pronouncements from lawyers and judges. He wrote in the Cruzan case that "nine people picked at random from the Kansas City telephone directory" are no less moral authorities than the Justices of the Supreme Court. Accordingly, one could be forgiven for thinking that when he opines that whether to torture is a hard question, he means it's a hard legal question, and not just a hard moral question. But of course it's a fantastically easy legal question. U.S. law and international law clearly forbid torture.
In affect, Justice Scalia comes across in the interview as affable, thoughtful and funny. But his answers don't stand up very well to critical analysis.
Posted by Mike Dorf
1) When asked whether part of his job is to safeguard the image of the United States overseas, Justice Scalia answers yes, and that he does so by traveling around the world as a good will ambassador. Given the likely reception of the rest of his comments (especially number 4 below), he might want to rethink this answer.
2) In response to a question about how politicized the U.S. judicial appointments process is relative to the process in other countries, Justice Scalia puts the blame on judicial activism. This is a familiar charge and there's a certain logic to it. If the Supreme Court only exercised technical legal judgment, then no one would care about the ideology of judicial nominees. The problem with the answer is that it ignores just about all of American history. Judicial appointments have been politically charged (albeit over different issues) since the early Republic. And of course Justice Scalia's own judicial philosophy is now (rightly) perceived as one of the political positions in that debate.
3) In response to the charge that the Supreme Court divides along left/right ideological lines, Justice Scalia insists that this is not so, invoking his decisions in cases involving the rights of the accused (specifically the Apprendi line of cases, though he doesn't mention them by name), and his decision in the flag-burning case of Texas v. Johnson. I have considerable sympathy for Justice Scalia's resistance to reducing all legal issues to conventional left/right divisions but I think these examples pretty clearly undermine his broader jurisprudential claims to neutrality.
As for Apprendi, the majority opinion of Justice Stevens in that case (joined by Scalia), relies to some extent on historical argument, but largely makes inferences from highly abstract propositions about the value of the jury right. Justice Scalia also joins a much more historically based concurrence of Justice Thomas, but it is hard to see how the historical arguments do the work, given that Justice O'Connor, in dissent, marshals strong historical arguments for the contrary result. And in Texas v. Johnson, Justice Scalia simply joins Justice Brennan's majority opinion, which doesn't make any effort at all to ground its result in the original understanding.
These cases demonstrate that Justice Scalia is not a down-the-line conservative but, as Chris Eisgruber argues persuasively in The Next Justice, they do not display the power of originalism. Instead they show that Scalia finds a certain sort of libertarianism attractive on normative grounds.
4) In response to a question about the "ticking bomb" scenario, Justice Scalia says that the 8th Amendment ban on "cruel and unusual punishment" does not necessarily apply to torture because torture for information is not "punishment." He then goes on to say that he thinks it would be crazy not to use at least some force to stop an attack on an American city (he picks Los Angeles). The level of force that Justice Scalia thinks pretty clearly permissible is a "slap in the face" and also, when asked by the interviewer, Alan Dershowitz's proposed sterile needle under the fingernail. Justice Scalia goes on to say that hard questions are posed by substantially greater force under conditions of lesser certainty.
It's not entirely clear whether Justice Scalia is making only a moral claim or also a legal claim. If he's just making a moral claim, that's fair enough. His main point here seems to be to say that when and whether to torture is a legitimately hard question, at least in theory. But of course Justice Scalia is famous for denouncing purely moral pronouncements from lawyers and judges. He wrote in the Cruzan case that "nine people picked at random from the Kansas City telephone directory" are no less moral authorities than the Justices of the Supreme Court. Accordingly, one could be forgiven for thinking that when he opines that whether to torture is a hard question, he means it's a hard legal question, and not just a hard moral question. But of course it's a fantastically easy legal question. U.S. law and international law clearly forbid torture.
In affect, Justice Scalia comes across in the interview as affable, thoughtful and funny. But his answers don't stand up very well to critical analysis.
Posted by Mike Dorf