What if It Were Justice Scalia? -- A Response to Commenters:
There were many interesting comments to my post on Justice Ginsburg and Legislative Independence. I responded to many of them in the comment thread late last night, but I wanted to add an additional response to the many who thought it was perfectly fine for Justice Ginsburg to use her dissent to try to get Congress to respond by enacting new legislation more to her liking. In particular, I want to switch the politics just to make sure we all have the same position of the merits.
Commenters had four basic arguments for why Justice Ginsburg may have behaved properly. First, anyone can try to influence the legislative process, so it's okay for Justices to try to do this as well. Second, Justices are smart people "on the front lines" of the law, so it's good that they are generally interested in sharing their wisdom to improve it. Third, Justice Ginsburg's remarks should be read as really just making a comment on the state of the law, which is something that we generally find unobjectionable. Fourth, it is appropriate for a Justice to take extra steps to inform Congress that their will might have been thwarted, just to let them know so they can take corrective action.
I responded to each of these arguments in depth in the comment thread, but I wanted to add one more thought experiment into the mix: What if the politics of the case had been reversed, and it was Justice Scalia who was engaging in this conduct instead of Justice Ginsburg?
Let's imagine the year is 1987, and the Supreme Court is deciding a case that is somewhat similar to Ledbetter, Johnson v. Transportation Agency. In that case, the Santa Clara County government had enacted an affirmative action plan allowing the government to provide preferences/affirmative action for women in hiring. A man challenged the program on the ground that Congress has clearly and directly stated that " "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[.]" The Justices meet at conference and a majority vote to allow the program despite the plain meaning of the statute. Justice Brennan is the senior-most Justice in the majority, and he assigns himself the majority opinion.
Now let's focus on the response of Justice Scalia, who thinks that Brennan's decision is a completely bogus and result-oriented interpretation of the statute. Congress's statute could not have been clearer, and the Court is defying Congress's will and trying to gut a very important law. So Scalia writes a blistering dissent explaining why the majority's interpretation of the law cannot be squared with what the law actually says. (And indeed, that is exactly what Justice Scalia did.)
But let's say Justice Scalia decides to do more. Let's imagine that he decides that he wants to try to "propel" the legislature to pass a new law banning affirmative action in the workplace. He thinks carefully about how he can best use his opinion to try to get Congress to ban affirmative action, and he devises the following plan. First, he will explicitly suggest that Congress should consider banning affirmative action in response to the Court's decision, noting in his dissent that "the ball is now in Congress's court" after the majority thwarted its goals. Second, he will read his dissent from the bench to maximize press coverage and draw immediate attention to his cause.
After the decision is handed down, Justice Scalia follows the Congressional response with interest. He publicly expresses his pleasure when Republicans in Congress introduce bills to ban affirmative action. "That is just what I contemplated when I wrote my dissent," he tells a sell-out crowd at the annual Federalist Society convention. But he then notes with apparent displeasure that Democratic leaders in the Senate have "clouded" the prospects of the bill by saying that they don't want to bring it to a floor vote.
: I think this hypothetical is pretty much the same as what Justice Ginsburg is doing, just with the political valence reversed. So let's return to the defenses of Justice Ginsburg and see if they hold up with Justice Scalia in the hotseat instead. If Justice Scalia had in fact taken these steps in response to Brennan's opinion in Johnson, would we say that Justice Scalia is a smart guy "on the front lines" of the law, and that we are lucky to benefit from his experience and learning? Would we say that Scalia's behavior was perfectly okay because anyone can try to influence the legislative process? Would we interpret his efforts as being simply to "notify" Congress, just in case they missed the decision, or that he was simply expressing his view that affirmative action is a bad idea?
These are questions for each reader to answer. But I suspect many readers inclined to defend Justice Ginsburg now would share my own view that the answers would be "no, no, no, and no." Such conduct from Justice Scalia would be simply outrageous. Scalia's job is to decide cases, not to try to use his official position to get Congress to pass laws that he likes. Granted, Justice Scalia is entitled to his own opinion as to whether affirmative action is good or bad. But I think it would be deeply troubling if he saw it as within his official role as a Justice to try to get Congress to pass a new law clearly banning affirmative action after he didn't have the votes to achieve that result in the Johnson case.
So here's my question for commenters who defended Justice Ginburg's efforts: Do you have the same reaction to Justice Scalia's (hypothetical) efforts to get Congress to overrule Johnson? Or do you agree with me that such conduct would be quite troubling? If you support Justice Ginsburg but would oppose the hypothetical Scalia, what's the principled difference?
Commenters had four basic arguments for why Justice Ginsburg may have behaved properly. First, anyone can try to influence the legislative process, so it's okay for Justices to try to do this as well. Second, Justices are smart people "on the front lines" of the law, so it's good that they are generally interested in sharing their wisdom to improve it. Third, Justice Ginsburg's remarks should be read as really just making a comment on the state of the law, which is something that we generally find unobjectionable. Fourth, it is appropriate for a Justice to take extra steps to inform Congress that their will might have been thwarted, just to let them know so they can take corrective action.
I responded to each of these arguments in depth in the comment thread, but I wanted to add one more thought experiment into the mix: What if the politics of the case had been reversed, and it was Justice Scalia who was engaging in this conduct instead of Justice Ginsburg?
Let's imagine the year is 1987, and the Supreme Court is deciding a case that is somewhat similar to Ledbetter, Johnson v. Transportation Agency. In that case, the Santa Clara County government had enacted an affirmative action plan allowing the government to provide preferences/affirmative action for women in hiring. A man challenged the program on the ground that Congress has clearly and directly stated that " "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[.]" The Justices meet at conference and a majority vote to allow the program despite the plain meaning of the statute. Justice Brennan is the senior-most Justice in the majority, and he assigns himself the majority opinion.
Now let's focus on the response of Justice Scalia, who thinks that Brennan's decision is a completely bogus and result-oriented interpretation of the statute. Congress's statute could not have been clearer, and the Court is defying Congress's will and trying to gut a very important law. So Scalia writes a blistering dissent explaining why the majority's interpretation of the law cannot be squared with what the law actually says. (And indeed, that is exactly what Justice Scalia did.)
But let's say Justice Scalia decides to do more. Let's imagine that he decides that he wants to try to "propel" the legislature to pass a new law banning affirmative action in the workplace. He thinks carefully about how he can best use his opinion to try to get Congress to ban affirmative action, and he devises the following plan. First, he will explicitly suggest that Congress should consider banning affirmative action in response to the Court's decision, noting in his dissent that "the ball is now in Congress's court" after the majority thwarted its goals. Second, he will read his dissent from the bench to maximize press coverage and draw immediate attention to his cause.
After the decision is handed down, Justice Scalia follows the Congressional response with interest. He publicly expresses his pleasure when Republicans in Congress introduce bills to ban affirmative action. "That is just what I contemplated when I wrote my dissent," he tells a sell-out crowd at the annual Federalist Society convention. But he then notes with apparent displeasure that Democratic leaders in the Senate have "clouded" the prospects of the bill by saying that they don't want to bring it to a floor vote.
: I think this hypothetical is pretty much the same as what Justice Ginsburg is doing, just with the political valence reversed. So let's return to the defenses of Justice Ginsburg and see if they hold up with Justice Scalia in the hotseat instead. If Justice Scalia had in fact taken these steps in response to Brennan's opinion in Johnson, would we say that Justice Scalia is a smart guy "on the front lines" of the law, and that we are lucky to benefit from his experience and learning? Would we say that Scalia's behavior was perfectly okay because anyone can try to influence the legislative process? Would we interpret his efforts as being simply to "notify" Congress, just in case they missed the decision, or that he was simply expressing his view that affirmative action is a bad idea?
These are questions for each reader to answer. But I suspect many readers inclined to defend Justice Ginsburg now would share my own view that the answers would be "no, no, no, and no." Such conduct from Justice Scalia would be simply outrageous. Scalia's job is to decide cases, not to try to use his official position to get Congress to pass laws that he likes. Granted, Justice Scalia is entitled to his own opinion as to whether affirmative action is good or bad. But I think it would be deeply troubling if he saw it as within his official role as a Justice to try to get Congress to pass a new law clearly banning affirmative action after he didn't have the votes to achieve that result in the Johnson case.
So here's my question for commenters who defended Justice Ginburg's efforts: Do you have the same reaction to Justice Scalia's (hypothetical) efforts to get Congress to overrule Johnson? Or do you agree with me that such conduct would be quite troubling? If you support Justice Ginsburg but would oppose the hypothetical Scalia, what's the principled difference?
All the criticism of Ledbetter v. Goodyear misleadingly ignores these longer deadlines, which make the attacks on the decision for enforcing Title VII's 180-day deadline unfounded (the 180 day deadline in Title VIIO is ample to bring a discriminatory discharge case -- which is actionable under Title VII -- and if it is not long enough for pay discrimination claims, that doesn't matter, because such claims can be brought under the longer deadline set forth in the Equal Pay Act).
Nevertheless, playing the what if it was so-and-so really does not prove anything, and is a silly game. I'm late to the discussion, but Congress files amicus briefs with the Court telling it how to rule and how to come down on issues, as does the executive branch all the time, why can't a Justice tell Congress what it thinks is right, and here why it thinks a majority of the Court is openly and quite blatantly flouting its will (as was unequivocally the case in Ledbetter)?
i just want to thank you for writing all this out...it helps to see it on paper and not have to imagine it
only problem for me is that actually id agree with the policy being protected by ginsburg in the real life situation..and scalia in the hypothetical-so my bias isn't tipped in either situation..darn
but i see what your trying to get at and i agree with sasha that allyou need is one yes...and most of the time one of there is at least one yes
What's the difference between silly game arguments and non-silly-game arguments? I would like to know this, so I can avoid silly game arguments in the future.
I assume that the same is true of a Constitutional case. If you dissent, just dissent, but you should not try to push for changes to the law outside of the judicial process. With that in mind, who do you think this rhetoric from Scalia in Lawrence v. Texas was aimed at:
If you don't think that dissent, and that language (also read from the bench), was intentionally aimed at right-wing Christian groups in advance of a Presidential election year, I have a bridge I'd like to sell you. It's a great bridge, Orin, you should buy.
I don't remember Orin criticizing it and saying, "if you dissent, just dissent."
justice ginsburg's comment was part of a lecture on the role of dissents in the u.s. judicial system. one function of a dissent, she said, is to alert congress to the majority's misreading of a statute. that seems pretty important in our constitutional structure, since the legislature can (and sometimes should) correct the court when it comes to statutory interpretation.
her further commets, which you interpret as advocacy, were actually more in the nature of description -- explaining how congress and the president reacted to on particular dissent. you read "apparent displeasure" into her use of the word clouded, but i think it is fairer to say that she simply described the president's apparent position.
in any event, i think you should provide your own view of scotus dissents in statutory cases. if the justice should not explain the misinterpretation to congress (which has the constitutional power to act), why write a dissent at all?
The "propel change" in Justice Ginsberg's remarks must be read in conjunction with her conclusion that the Court's interpretation "could not be what Congress intended when, in Title VII, it outlawed discrimination based on race, color, religion, sex, or national origin in our Nation's workplaces." Insofar as she believes that the Court laws properly interpreted already exist, her desire to "propel" change is really nothing more than asking Congress to clarify its intent.
The comparison to Justice Scalia, for this reason, is not apples to apples because he would have no use for clarifying legislative intent in the first place. So of course you can conjure outrage at Justice Scalia for a naked appeal for clarification legislation -- but mostly because it's so contrary to his jurisprudence and obviously hypocritical.
Whether or not a Justice's desire to affect change bothers me? Meh. A blistering dissent is a blistering dissent, regardless of the hidden (or later revealed) intent.
Didn't Breyer point out that nothing prevented Congress from changing the Habeas statute such that it doesn't apply to the prisoners in Gitmo?
As I stated before, is this much different than a district court judge recommeding somebody get a sentence commutation? There have certainly been cases where the district court not only made the recommendation in its opinion, but noted that the clerk's office should mail it to the president's pardon office. One judge who did this is Judge Cassell, who is quite conservative. (He's also stepping down from the bench. Does that bother anyone? it seems to be the functional equivalent.
I really don't think you've ever explained why what Justice Ginsburg did was improper. You seemed to, at first, rest on her alleged hypocrisy. Maybe that’s right; I’m not familiar enough with her writings. But now your real complain seems to be that regardless of her views on separation of powers, what she did was wrong. Is that true? And if so, what view of separation of powers would lead to that result? Does Congress violate this same separation of powers when it files an amicus brief before the Supreme Court and advocates for a position? Did your former boss violate this position when he advocate for the repeal of mandatory minimums?
Scalia thinks AA is unconstitutional, so surely he thinks Congress should outlaw it.
The Court has no control over Congress' budget, or the salaries of Congressmen, or the number of staff they are allowed, or anything of the sort. The Court cannot impeach Members of Congress, nor can it begin the amendment process to remove lifetime tenure. The Court really has very little ability to move public opinion, frankly, in a political way. A justice could give 100 speeches exhorting Congress to do something, and have about as much impact on any Congressman's reelection prospects as a single bucket of water dumped on the wildfires. Moreover, Congress is supposed to be influenced by political and policy concerns, while the Court is not.
The only problem I see with Justice Ginsburg's remarks is that they reflect to which she lets her view of the law be shaped primarily by her policy preferences. It may be inappropriate for her to so clearly state her policy preferences, but only because it reflects negatively on the impartiality of the Court, not because it presents any threat to the "independence" of Congress.
Aren’t there countless examples of courts urging Congress to revisit statutes? I realize RBG did more, but I'm not sure her actions, while more "vigorous," are categorically different.
Again, you don't think this is public advocacy for a change in the law and to get activists involved in the judicial confirmation wars????
Good point. This was lauded across the spectrum as well.
Please. Scalia knows that the five in the Majority could have cared less about his "scolding." That language -- especially the equating of Roe and Dred Scott -- was obviously directed at political activists. Give me a break.
I agree with you that Justice Scalia's dissent was improper and very troubling -- not because it was intended to influence an election, which seems quite speculative (especially compared to the clear examples such as Justice Blackmun's "I am 83 years old" dissent), but because it so clearly seemed to take sides in the culture wars. I am heartened to know that you agree with me that this was improper -- we are in full agreement there.
You're right I didn't blog about that line, but my best recollection is that I didn't feel free to do so: the decision was handed down about two weeks before I started clerking for Justice Kennedy, when I was going out of my way to avoid commenting about the court's work. And of course there are many things that I object to that I do not blog about; I hope you will understand that my failure to blog on an item does not mean I approve of it.
Well, I don't see anything "improper" about his dissent -- very troubling? Yes for many reasons.
Nowadays, we tend to see all these actions as dubious and would probably criticize a justice who engaged in them. That indicates that our standards have become stricter over time. While I personally have no problem with Ginsburg's conduct, nor with the hypothetical Scalia, it may be that Prof. Kerr's concerns are consistent with the general historical trend.
LOL. I'm on Candid Camera.
My concern is the scenario that did happened in Johnson, the majority feeling strong enough about a policy preference that they rewrite the statute to suit themselves. Of course that is what Ginsburg would have done if she had marshalled a majority. If she disagrees with the statute the ethical thing to do is lobby congress for a change, not judicially rewrite it the way Brennen did in Johnson.
Anderson, that is really uncalled for. If you have an argument, then by all means make it. But to respond to my many hours devoted to comments with snide sarcasm is really lame. I thought you were better than that.
No, no, no. Don't you know that back in the good old days, back when the framers framed the Constitution (what does framing mean in this context anyways?) and up through, oh, say Earl Warren, Justices never ever did anything other than read the text as it was meant to be read and then apply the law in the narrowest manner possible to resolve the facts before them? Except for that Lochner decision. That was judicial activism.
Great point. The Justices have been overly political--and probably moreso in earlier times--throughout the history of the republic.
I apologize for laughing. I really do appreciate your efforts. I think he was just joking, though.
Yes. I may disagree with Scalia just as I may disagree with Ginsburg, but I'm not bothered from a systemic standpoint.
Yes. How could the answer be otherwise?
I will say this: I assure you that if Scalia had "pulled a Ginsburg," the media reaction would have been much different.
I don't really have an opinion of it. I also don't understand why the press finds it so interesting; the audience for written opinion is vast and the audience inside the courtroom is tiny, so I'm not sure why the Supreme Court press pays much attention to whether a Justice decides to speak for 2-3 minutes summarizing what they wrote or just lets the opinion speak for itself.
For that matter, I'm not sure why the Justices summarize their majority opinions in open court; I find that rather puzzling. I suppose the Justices like it, though.
Alright, so you have no problem with Justice Ginsberg reading her dissent. So let's take that off the table.
What do you think generally of a Justice who considers, from a policy standpoint, how his or her dissent could influence subsequent legislation?
Yeah, yeah...No excuse.
Nick
Goodness, my apologies. I was being neither snide nor sarcastic. I do think your argument is a bad one, and that you're really reaching to misconstrue Ginsburg's remarks. I do not seem to be alone in so thinking, if that's relevant.
However, what I meant to convey, and evidently failed at, was a good-natured reflection on how the ease of blog posting, and the casual nature of the medium, lends itself to tossing out ideas and defending them at length, even when they're not terribly plausible. As opposed to, say, "oh that Orin Kerr, he'll go to any length to smear the liberal Justice Ginsburg," or something else tiresome like that.
Evidently, what I took for a casual "hm, is that really okay?" blog-post thesis is actually of some importance to you. Again, my apologies; I routinely enjoy your posts, whether I agree with them or not.
As for thinking me "better than that," I can't imagine where you got that idea.
But Orin: Are you equally troubled when Justice Kennedy goes before Congress and tells them that mandatory minimum sentences are a bad idea? I don't see much difference.
More broadly: What is the danger that you're worried about here? There's not even any evidence (that I know of) that the Justices have any serious ability to influence the legislature (except insofar as their actual decisions do so).
Nor do I find it plausible to treat a sitting justice's "personal policy preference," stated in a published opinion, as clearly distinguishable from a wish to see the "uncommonly silly" law changed.
I have no problem with such a Scalia dissent (although I'd hope Congress would reject the call). I also have no problem with similar dissents on less political issues, like statute of limitations questions and the like. Orin, I don't think you and I, at least, are disagreeing here for ideological reasons.
I think we're just disagreeing about the proper role of judges. I think the law/politics distinction is the defining element of the judicial role, and that the legitimacy of the judiciary is premised on Judges not trying to be political actors. I gather that you and many commenters disagree; the general view among the commenters is that it's perfectly okay for Supreme Court Justices to try to throw their weight around in the other branches. I think that view is really terribly misguided and naive; it falsely imagines that Supreme Court Justices have anything of interest to say about normative questions of law and also ignores the terrible risks of encouraging a politicized judiciary. But obviously many readers disagree with me about this.
Objection: Mischaracterizes testimony.
With respect to the issue under consideration, at least, the question is whether commenters object to Justice Ginsburg (1) pointing out to Congress that if, as she believes, the majority has misconstrued Congressional intent in interpreting a statute, it should issue clarifying legislation; and (2) noting in a subsequent public address that she was correct in her interpretation of the legislative intent, as evidence by the clarifying legislation, which she intended by her dissent to spur.
I don't think that qualifies as "throwing one's weight around." A Justice "throwing one's weight around" would show up in a Junior Congressman's office to squash legislation he had introduced on the hypothetical grounds that if it were enacted it would be unconstitutional.
There you go on your blog power trip again.
What I don't agree with is your describing her activity as impinging on the "independence" of Congress, for the reasons I stated above. Her actions are not, in either degree or kind, the equivalent of some of the more extreme rhetoric of Tom DeLay and others who both directly attacked the independence of courts and were in a position to potentially enact such rhetoric into law.
I used to think so too. But while I see still the appeal of that view, I've come to conclude that it is, to use your words, "terribly misguided and naive." It doesn't describe how the judiciary has actually worked at any point in American history; it is hard to justify normatively (many closely disputed statutory &constitutional cases just can't be resolved without "politics," in the sense of "policy"); and I seriously doubt that the judiciary's legitimacy depends on it: to the contrary, I think the judiciary's legitimacy depends far more on its not appearing wildly out of step with people's political views.
But one needn't even go that far to think that what Ginsburg did here is pretty unremarkable: it just wasn't that "political" an action. Of course she wants Congress to correct what she sees as the Court's misreading of the statute Congress passed, and of course she's pleased or displeased insofar as that happens or doesn't happen.
If she mailed a copy of her dissenting opinion to Senator Kennedy with a note saying, "I think you should look into this," well, that would be a different issue.
Relatedly, members of Congress file amicus briefs in the Court. I haven't seen anyone criticize this as throwing legislative weight around.
Ginsburg worked well within the judicial process. She wrote a dissenting opinion and read it from the bench. She did not show up on Capital Hill, or send a copy of the opinion to anyone under official letterhead. Her acts were strictly judicial.
What am I missing? I like to think of myself as jaded and cynical. Yet Kerr is suggesting my view is naive. If it is naive, please prove that to me, as I would much rater be considered jaded than naive. ;-)
While it is proper to state in the dissent that majority has misapplied the applicable statute and or the applicable constitutiontal position, I feel the even if the dissenter is correct, it remains inappropriate to advocate legislation to clarify or correct the supposed majorities mistake. (at least that action taken by a member of the judicary branch).
The disagreement is not about whether there is a line between law and politics, but where the line should be drawn. On one extreme -- if there is no overlap between law and politics -- there should be no dissenting opinions: once the Supreme Court has decided a question, that decision is the positive law, and to dissent is to inappropriately take a position on a "normative question of law." On the other extreme -- if there is no distinction to be made between law and politics -- justices should be entitled to decide cases based on their own policy preferences and to participate in political campaigns, etc. Very few people hold either extreme view. Rather, there is a fairly narrow disagreement about the circumstances under which it is appropriate for a justice to express his/her disagreement with the majority opinion.
This is the naive thread; the three-way-sex thread is the jaded thread. Now you know.
Would it be acceptable for Justice Stewart, in Griswold v. Connecticut (The source, I believe, of the uncommonly silly law) to plead with the people of Connecticut to overturn the law, and that he would join their public efforts?
I'm curious because I agree that nothing in the Constitution actually says persons should have right to contraceptives, but clearly think this position is completely stupid and would encourage--and expect--the citizens of their States to overturn any such law. And yes, I recognize the difficulties inherent in such a position and don't intend to generate a discussion about the merits of the position.
The judiciary is a branch of government. Government is political. Judges are of course allowed to make any statement they want at any time. It's their way of wielding power. In this case, the dissent isn't even wielding power.
I'm actually slightly offended that Orin would think that anyone here, normally very clear thinkers regardless of their views, would be so shallow as to think that changing the actor would change the argument.
I take it you don't believe *that*, so the question is just when such opinions cross the line. When it's intentional? When it's express? ("Congress should fix this.") When it's talked about in some conference afterwards with some measure of satisfaction?
Bruce writes: "Any dissent at all on a statutory interpretation case is at least an implied call to the legislature to fix it (back to the way the dissenter thinks it was originally)."
I don't understand this; it bears no resemblance to the usual role of dissenting opinions. Bruce, do you have some theory that judges do not like change, so that they always want the legislature to go back to old law? Why? If Congress passes a dumb law, and a judge thinks that it should be interpreted in the dumb way Congress wrote it, why is a dissent an implied argument to return to the dumb law? I'm confused.
Bama 1L,
What Scalia dissents do you have in mind? I can't remember any examples where Scalia called on the legislature to enact a law that he preferred and then took efforts to see that the public paid attention to "propel" legislative change. I didn't see any in the thread, but it's a long thread and maybe I missed it.
Due to the independent and neutral nature of the judiciary, overreaching into its sphere is a much bigger concern than overreaching into the legislative process, which is by definition partisan.
I remember years ago reading "The Supreme Court and Administrative Agencies" (by Shapiro??) that proposed that the Court effectively "negotiated" with agencies though its opinions. Now, after years of practice, it think that's pretty much how it works. Law professors think judges decide cases primarily on their merits. Most practicing lawyers think they try to do what they think is right, so long as, in their view, the law allows them to do it.
-mark
To be clear by dignified I mean that Scalia makes his position clear in the sort of language used in court briefs or law professors. I would have a problem if Scalia or Ginsburg picked up a picket sign and stood in front of congress or got out a bullhorn or even gave a speach at a political convention. However, I can't imagine Ginsburg, Scalia or any other justice on the court behaving in such a fashion. Not only would it be undignified it would undermine the very authority they seek to use to influence the law. In any case I've never seen any supreme court justice get close to being on the wrong side of this line in public so this isn't some sort of excuse that I would use as an escape hatch if scalia actually tried to influence the law.
You might want to consider the slight possibility that the statute wasn't as clear as you seem to think it was.
But why publish them?
Second, I think it's unusual to say that a descriptive interpretation about what the law is should be labeled a "normative" argument.
But the moment the case is decided, the dissent is no longer "what the law is." Rather, it is what the law should be (or should have been). Why would the dissenting justices tell the public what they think the law should have been? Might one reason be to inform further debate about the issue?
Come on, that cannot be a fair reading of what most (if not all) of us are saying. We are saying that the specific manner chosen -- i.e., the use of a dissent to alert another branch of government to a perceived problem -- does not trouble us as impinging on the Judicial role.
While hardly proof that you are wrong, note that just about everyone here disagrees with you. I do think it might be helpful to pause for a moment and think about whether you may have gotten this one wrong -- in particular, I think you overstated (unintentionally) what Ginsburg was doing, and the alleged uniqueness of what she was doing. As I think Anderson was trying to say, you seem to be falling in the trap of opposition hardening your position and stopping you from reflecting on your initial thesis.
A lot of the people defending Ginsburg say that she thought the Court misread Congressional intent, and was asking Congress to clarify it. But of course Congress can only pass a new law expressing its own intent; it can't clarify the intent of a bunch of Congressmen from decades ago.
Scalia has no problem being obnoxious and snarky. he can berate other courts for, in his opinion, incorrect decisions, legislators for statutes he does not like--whether he's in the majority or minority, and even fellow justices--usually Kennedy--for cowardice in failure to join the plurality (and, therefore, preventing Scalia's opinion from becoming precedent as that of the majority).
In common parlance, we would refer to one who behaves in such manner as either petulant or a bully, depending on whether we believe that his intent is to intimidate or not. I doubt anyone would accuse Ginsburg of either condition.
But, on substance, the only difference, as has been pointed out, is the question of legislative intent. If Scalia were to ask for a clarification, it would be hypocritical. Otherwise, there is no problem in either case.
1. No problem with the blistering dissent from the bench. Scalia does this all the time, to applause.
2. There is a subtle-but-important difference between the Ginsburg scenario and the one you pitched. Specifically, Justice Ginsburg did not use the words "Democratic" or "Republican" even though she advocated a policy position that was clearly more aligned with Democratice sympathies. I think it is perfectly fine for judges to advocate policy positions (though not enact them through judicial fiat), even policy positions with a collateral partisan identification. I do not think it is fine for judges to take specifically partisan sides.
If you reframe the hypo as Scalia "publicly expresses his pleasure when
Republicanscertain members in Congress introduce bills to ban affirmative action. 'That is just what I contemplated when I wrote my dissent,' he tells a sell-out crowd at the annual Federalist Society convention. But he then notes with apparent displeasure thatDemocratic leadersseveral Senators in the Senate have 'clouded' the prospects of the bill by saying that they don't want to bring it to a floor vote"; then I would say there is nothing wrong with what Scalia has done.Sure Orin, I have an elaborate theory that all judges are Burkean conservatives. More seriously, I'm confused by your confusion. Any dissent on a statutory interpretation issue is claiming that the majority is misinterpreting the statute. (Right? Or am I missing something?) One obvious way of correcting a misinterpretation is to clarify the text. Ergo, any dissent on a statutory interpretation issue is at least an implied call to the legislature to clarify the text. I'm not sure where we're missing each other here.
"fix it (back to the way the dissenter thinks it was originally)."
and now you say
"to clarify the text."
Those are very different. One is viewpoint neutral, while one advocates for a particular policy.
A classic example of this is Perkins v. North Carolina, 234 F. Supp. 333 (1964), a habeas case which upheld a sentence of 20-30 years imprisonment for consensual sodomy in a case where the co-defendent to the act had pled guilty and got only 5-7 years. After upholding the sentence as not cruel and unusual punishment, the judge attached an appendix listing all the North Carolina crimes with a lower maximum sentence and asking the legislature to reconsider its priorities. The judge wrote:
I believe this was an entirely proper thing for a federal judge to do. It was clear what was the law and what was personal opinion, and the ability to write the appendix made it easier for the judge to follow the law when the two disagreed, and also gave the legislature valuable information that it needn't act on but could choose to do so if it wished.
In this case the legislature did act, and shortly after the case was decided it quietly reduced the maximum sentence from 10 years imprisonment to the comparatively mild 10 years, and abolished the 5-year minimum.
I absolutely would dread seeing any SC Justice campaigning for any candidate of significant standing (President, Congressman, Governor, etc) but otherwise let them make their arguments.
What is truly worrisome is their ability to ignore plain English to reach some of their decisions, such as the example case for Scalia in this post.
I'm consistent: Scalia doing this would be okay with me.
Is the right paranoid or what? Yes, this would be fine.
I'd probably call him on his opinion, but not his mechanics. I'm actually quite fond of the fact that the supreme court is relatively free of political considerations of this kind.
I'm also quite fond of Scalia for being a smooth operator. (Kudos for Ginsburg's balls on this one.) I just think he's wrong.
I think (hope) you'll find that unlike yourself, most on the left can distinguish between style and substance.
I like it. But I liked it better when it at least pretended to be lawyerly. There are lots of partisan blogs.
I disagree! ... wait, um ... what?
I put it all in the same bucket as the eroded willingness of the press to turn a blind eye to personal indiscretions, and the public's lack of shame in its prurience.
Your Scalia hypothetical reminds me of the Scalia-Cheney duck-hunt nonsense. If Scalia's friendship with Cheney affected his legal judgment, who cares if he went duck-hunting with him; he should have recused himself if and only if his judgment was clouded.
So a justice comments publicly on legislation -- they clearly have a private view. If they publicly disclose it, it no more biases their decision than if they kept it secret.
Emotion has a lot to do with it. I think Justice Stevens read his dissent in the flag-burning case from the bench.
A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.
Thereby avoiding the immunizing stratagems adopted post hoc.
I don't see the point of complaining.