When Scalia Dissents

Linda Greenhouse has a post at the Opinionator blog wondering what Justice Scalia hopes to accomplish by his sometimes-overheated dissents:

So the question raised by Justice Scalia’s most recent intemperate display remains: what does this smart, rhetorically gifted man think his bullying accomplishes?

It’s a puzzle. But having raised the question, I will venture an answer. Antonin Scalia, approaching his 25th anniversary as a Supreme Court justice, has cast a long shadow but has accomplished surprisingly little. Nearly every time he has come close to achieving one of his jurisprudential goals, his colleagues have either hung back at the last minute or, feeling buyer’s remorse, retreated at the next opportunity.

I gather Greenhouse’s answer is: “Whatever he thinks his bullying accomplishes, it isn’t working because it’s not persuading his colleagues.” But I think that misses Scalia’s goal. Scalia has explained that his goal in writing dissents isn’t to “bully” his colleagues, but rather to influence future generations of law students who then become the next generation of lawyers and judges. Here’s Scalia in a 2008 interview:

Do you view the judicial dissent as a form of advocacy?

Yeah, in a way. I’m advocating for the future. Who do you think I’m writing my dissents for? I’m writing for the next generation and for law students. You know, read this and see if you want to go down that road. We’d be better off on all sorts of issues – on legislative history, on originalism. But I’m not going to persuade my colleagues and I’m not going to persuade most of the federal bench. They’ve had this so-called living Constitution stuff, you know, from the time they were in law school. That’s not going to change. But maybe the next generation will see the advantages of going back to the way we used to do things.

There are not too many useful reasons to write a dissent, in this court anyway. Given the chance you have of persuading your colleagues, you should just go quietly. If you could just join the majority and say, “Justice Scalia dissents,” that’d make my life a lot simpler.

So why do you do it?

Well, I think one of the reasons this Supreme Court is so prominent – compared to the Supreme courts of other countries – is because of the dissent. The dissent combined with the case law system is the way the law is taught. You don’t have to write a commentary, and the professor doesn’t have to pick apart the opinion. You get both sides just from the U.S. report. So it’s somewhat of a self-contained academy here, and I think that gives us greater prestige.

Plus, dissents are just good. Look back at Korematsu [the 1944 case in which the Supreme Court upheld an executive order excluding Americans of Japanese descent from areas deemed critical to national defense]. Isn’t it nice to know that Robert Jackson – at least someone on the Court – saw how horrible it was? A dissent keeps you honest. Sometimes after a dissent circulates, some of the points are so obviously incorrect that the majority will cut back some of its broad principles. [Court-outsiders] don’t see what happens to the majority [opinion] before it goes out.

From that perspective, the main test for Scalia’s dissents is not whether they worked with the current Justices, but whether they influence the law in the future. As a former professor, Scalia knows what he’s doing, I think. He knows how to write a dissent in a way that is likely to be excerpted at considerable length in a casebook, and he knows how to write in a way that is very entertaining for bored law students to read. By writing a sharp, even overheated dissent, Scalia may sometimes annoy his colleagues. But he also ensures that the issue in the case will be debated in law schools in significant part on his terms, which I think is a pretty significant accomplishment.

Thanks to Howard Bashman for the link.