Scalia: Conduct unbecoming a Supreme Court Justice (A Long Post!)
A friend of mine, who is a paralegal interested in constitutional law and a strong believer in the sanctity of the Supreme Court as an institution, asked me to re-read Justice Scalia's majority opinion in Heller and see if I thought, as she did, that Scalia was personally attacking Justice Stevens. She also asked me to compare the way Scalia attacked Stevens' arguments with the way he disagreed with Justice Breyer's separate dissent.
I have now done so and I have to admit she is correct. Scalia was very dismissive, in an unprofessional manner, with respect to Stevens. Scalia was also far more professional when disagreeing with Justice Breyer. Worse, after comparing what Scalia says Stevens says, with what Stevens actually said in his dissenting opinion, I have concluded Scalia was not only acting below the standard of a proper Supreme Court Justice, but is also wrongly treating judicial opinions as if they were mere partisan blogs.
Throughout Scalia's opinion, Scalia uses judicially intemperate colloquialisms and hyperbole against Stevens. At various points in his majority opinion, Scalia says that Stevens is "dead wrong" on a particular issue (page 6, footnote 5 of the opinion). He later labels alleged arguments from Stevens as "grotesque" (page 13 of the opinion), "bizarre" (page 18, footnote 14), and "wrongheaded" (page 50 of opinion). At another point, Scalia flames as if he was writing an email, stating that Stevens "betrays a fundamental misunderstanding of a court’s interpretive task..." (page 32 of Scalia's opinion). This was breathtaking to me because, outside of Stevens' admittedly outraged opinion in Bush v. Gore, most sober commentators who have read Stevens' opinions over the years would never say such things about Stevens.
What follows is an admittedly long sampling of Scalia's invective and hyperbole (and distortions) that perhaps only court watcher junkies may find interesting. Suffice it to say, for general non-lawyer readers, that the style of Scalia's opinion was conduct unbecoming for a Supreme Court Justice. And sadly, one must also castigate the Chief Justice, John Roberts, for signing off on Scalia's opinion without commenting on its lack of professionalism. This is true regardless of whether concludes Scalia was also distorting or misleading people with respect to Stevens' dissent:
1. "Dead wrong": Scalia says Stevens is "dead wrong" in saying the First Amendment right to petition is "primarily collective." Yes, Stevens does say that at page 10 of his dissent. But Stevens also says, in the same paragraph that he recognizes the First Amendment right to petition also protects individuals. Yet, Scalia never lets us know Stevens said that. As Dustin Hoffman's Captain Hook would say, that is "bad form."
2. "Grotseque": When Scalia says Stevens is making a "grotesque" argument, he is actually caricaturing Stevens' argument and then attacking the caricature. Scalia, at pages 12 and 13 of his opinion, attacks Stevens for stating that various sources define the term "arms" in the context of military activities, not private protections of property. Scalia claims Stevens cites no dictionary definitions or legal authority for his point, when, in fact, at pages 11-12 of Stevens' dissent, Stevens cites the Oxford Dictionary and case law supporting his position. Then, Scalia accuses Stevens of (purposefully?) confusing different meanings of the word "arms," and also using a definition that renders the phrase "keep and bear arms" "incoherent." Scalia then creates this example: "It would be rather like saying 'He filled and kicked the bucket” to mean “He filled the bucket and died.' Grotesque." The only thing "grotesque" is Scalia's example, which lamely attempts to obscure Stevens' point about the term "arms" being defined in a military context at the time of the Constitution's founding.
Ironically, I think a better answer to Stevens' point is that there is an implicit individual right along with the collective right in the Second Amendment, just as in the First Amendment's right to petition. There is no need, however, for the hyperbole or invective Scalia used. Perhaps Scalia needs the hyperbole to hide the fact Scalia's citation of philosphy and history is inconsistent with his claim to be a "textualist," i.e. studying a text and not legislative intent.
3. "Bizarre": Scalia finds it "bizarre" for Stevens to note that the lack of the word "to" between the words "and" and "bear" in the phrase "to keep and bear arms" may require a different interpretation of the amendment from Scalia's (and my) interpretation. Scalia says, at page 18, footnote 14: "We have never heard of the proposition that omitting repetition of the “to” causes two verbs with different meanings to become one." Well, may I at least suggest another unusual grammatical analogy in a legislative context? Perhaps the supposedly learned Scalia never heard about the controversy over the phrasing of United Nations Resolution 242 and the missing "the" before the phrase "territories occupied." Israeli hawks says that because the phrase is about Israel giving back "territories occupied"--not Israel giving back "the occupied territories," that Israel should not be required to give back more than some of the occupied territories. If we find that argument lacking substance in its particular application, and I personally do, I would still have to admit that some very important people, including then US-Amabassador to the UN, Arthur Goldberg, supported that argument later in his life. Instead, Scalia acts with a partisan's glibness in dismissing Stevens' gramatical point as "bizarre"--and therefore not worth reading. This again is not conduct becoming a trial judge, let alone a Justice of the Supreme Court.
4. Justice Story and the Second Amendment: Scalia attacks Stevens for not understanding the early 19th Century Supreme Court Justice, Joseph Story's view on the Second Amendment. See: pages 35-36 of Scalia's opinion. Scalia says Stevens wrote that there was not a "whisper," in Story's 1833 treatise on the Constitution, concerning the right of an individual to bear arms for purposes outside the militia context. Stevens, however, was not making so broad a statement. Instead, he was talking about one particular passage in Justice Story's Constitutional commentaries (section 1897 of the commentaries). At page 34 of Stevens' dissent, Stevens wrote: "There is not so much as a whisper in the passage above that Story believed that the right secured by the Amendment bore any relation to private use or possession of weapons for activities like hunting or personal self-defense." (Italics added by MF Blog)
Scalia's quotation from Story's 1833 Constitutional commentaries is from a different section (section 1891)--and does not directly disprove Stevens' point. See: Scalia's majority opinion, page 35, where Scalia must make his point by implication, not an exact statement from Justice Story. Scalia, in attacking Stevens, then has to resort to quoting a Tenneesee State Court from 1871 that merely provided that Southern Court's interpretation of Justice Story's overall views. Then, Scalia goes on to quote a different essay from Justice Story in 1840 which states:
"One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia.” (MF Blog emphasis).
Again, this quote does not prove Scalia's point. For the use of the word "and" at the start of my emphasis would generally mean what follows is necessary to the subject of what tyrants do to disarm people. It does not, at least grammatically, mean Story is directly expressing an individual's right to bear arms on behalf of that individual, as opposed to being part of a self-regulating militia. Despite this failure of proof, Scalia again ridiculed Stevens with hyperbolic phrasing.
In addition to the above, Scalia makes arguments that themselves are petulant in tone--and not even necessary to his opinion (Remember: I agree with Scalia's overall conclusion that the Second Amendment does provide for a limited individual right to "keep and bear arms"). For example, Scalia tries to erase by argument the first phrase of the Second Amendment, which concerns the need for a well-regulated "militia," by calling the phrase a "preamble". But read pages 3 and 4 of Scalia's opinion and see if you can find any direct legal precedent concerning the first portion of the Second Amendment which supports Justice Scalia's argument.
While it is generally true that a preamble has little or no interpretative value for a particular statutory interpretation, Scalia is being incredibly glib in trying to read out the first section of the Second Amendment. Despite not having any direct case authority or contemporary Founders' intent to treat the first portion of the Second Amendment as a "preamble," Scalia, in footnote 3 of his majority opinion, audaciously attacks Stevens for questioning Scalia's "preamble" argument. At page 4 of Scalia's opinion, Scalia writes in a kingly manner, "Logic demands..." his argument be accepted as a judicially mandated conclusion when, in fact, Scalia's "logic" demands nothing of the sort. Let's read the Second Amendment in its entirety so we can see what Scalia is up to in the opening section of the opinion--which I felt was unncessary to the opinion's conclusion:
The Second Amendment reads, again: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Does that opening section regarding the "militia" truly resemble a "premable," such as "Whereas" in a contract? See: Footnote 4, page 3 of Scalia's majority opinion, where Scalia actually compares the first portion of the Second Amendment to the "whereas" in a contract. Talk about "grotesque" or "bizarre"...
I could go on, but I think I'd have to change my blogging tone and turn the post into a law review article. I should say, in some defense of Scalia, that in footnote 5 of his opinion, he says Stevens wrote something right: Scalia says Stevens is correct that the right to "assemble" cannot be done "alone." Yet, it is in that same footnote that he tells us Stevens is "dead wrong" about whether the right to petition the government is a collective right, again not informing the reader Stevens said the right to petition was an individual right, as well, despite the First Amendment using the collective term "the people" (The phrase in the First Amendment states: "The right of the people peaceably to assemble, and to petition the Government for a redress of grievances...").
Overall, I think the reason I missed this the first time is that I expect Scalia to act this way. His opinions are legendary for being less than respectful toward his colleagues. However, this opinion, when reviewed a second time, goes way over the top in its relentless and pervasive attack on the credibility and integrity of Stevens. Yet, as I have shown, it is Scalia's credibility and integrity which should really be questioned.
What bothers me even more than Scalia's conduct in writing such a invective-laden opinion against a fellow Justice is that Chief Justice Roberts signed his name to the opinion without commenting about its coarseness in a concurring opinion. Roberts, who came to the Chief Justice position telling the Senate and the nation that he would restore or at least promote civility, instead affirmed the coarse and unprofessional--and disrespectful--sensibility of Justice Scalia. For shame, Mr. Chief Justice, for shame. And shame on Justice Scalia for degrading the institution of the US Supreme Court with judicial opinions that read like he wants to be Rush Limbaugh.
I offer a personal story: In the mid-1990s, I was able to directly question Scalia in an open forum in Orange County during an question and answer period after a debate Scalia had with Judge Reinhardt (of the infamous 9th Circuit (Federal) Court of Appeals) on the subject of "originalism." After Scalia spent 45 minutes questioning Reinhardt's integrity and telling us that he, Scalia, reached his decisions through an understanding of the "original intent" of the Founders, I stood up and was able to ask this question*, which I paraphrase: "Isn't it true, Mr. Justice, that, in most cases which come before you at the Supreme Court, you and the other Justices have no record to rely upon to ascertain the original intent of the Founders?" Scalia then sat back in his chair, smiled and replied, "Yes, that's true."
The audience, which consisted mostly of lawyers (It was part of a "continuing legal education" weekend seminar), audibly gasped at Scalia's answer. After the Q&A, several people came running up to me to say I had slayed Scalia.
I must say, however, that minutes later, Scalia was very kind and friendly toward me. Still, I cannot help but wonder why he is so intemperate in his opinions over the years.
*The seminar was sponsored by the Jewish Orthodox-oriented Chabad. I had actually made a preliminary statement telling Scalia about the famous Talmudic story (Scroll down in link) where the Rabbis essentially tell God, "You may have written the Torah, but it is the job of the Rabbis on Earth to interpret it." I then compared it to Federalist Paper no. 37 and Madison's view that "experience" would define the vague terms used in most parts of the Constitution. The audience laughed in what I took to be support for my comparison. However, Scalia laughed and replied, "What's a Talmudic story got to do with the Constitution?" "Well," I said, "I just find it interesting that the Rabbis were willing to interpret the Torah as a living document, but you don't even want to listen to James Madison when he tells us the Constitution should be a living document." He laughed again, and that gave me the chance to ask my question cited above.