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Scalia and the Reactionary Mind

[ 16 ] October 20, 2011 |

I promised to say more about Corey Robin’s assessment of Antonin Scalia in The Reactionary Mind, some of which is excerpted here. Before I get to that, I should say that it’s an excellent book I strongly recommend. And one initial complaint notwithstanding, the Ayn Rand chapter (“St. Petersburg in revolt gave us Vladimir Nabokov, Isaiah Berlin and Ayn Rand. The first was a novelist, the second a philosopher. The third was neither but thought she was both…”) is particularly good. Since Bernstein uses both the “could you do better?” and the “but Rand sells lots of books!” arguments, I suppose this goes without saying. You think Dan Brown is a hack? Sorry, but unless you’re Alice Munro I’m afraid you’re not allowed to say it.

On Robin and Scalia, a few reflections:

  • Paul has also discussed this recently, but the relish Scalia often takes in getting things to come out wrong is a particular trademark.   As Robin says, one of the things that make Scalia a more interesting figure  (as well as a marginally better Supreme Court justice) than Alito is that he doesn’t always relish unpleasant results in a conservative direction.   His confrontation clause jurisprudence is another good example.  There is a certain conservatism inherent in Scalia’s distinctive preference for struggle and tough choices based on clear rules, as John Holbo’s classic review of Dead Right reminds us vividly.  But sometimes it actually constrains what we might expect are his policy preferences.   (Just as, for that matter, Frum is a lot more interesting that Bill Kristol.)
  • It should be noted, however, that there are distinct limits to Scalia’s duresse oblige.  This is most visible is most visible in his Fourteenth Amendment jurisprudence, which is a complete mess even if we leave Bush v. Gore out of it.  (Which we shouldn’t; as Robin says Scalia’s telling people to “get over it” as if his lawless expedience represented a tough choice required by law is a defining moment.)     When the amendment that defines the post-Civil War constitutional order is concerned, Scalia makes sure everything comes out right — in the sense of preserving traditional racial and gender hierarchies.
  • To the extent that I have a different take, then, it’s that I don’t think that originalism is very important to Scalia’s jurisprudence at all.  Tradition, yes, but not originalism.   Scalia’s dissent in U.S. v. Virginia has a lot to say about how discrimination against women is deeply rooted in American political culture (and is, therefore, constitutionally self-justifying) but very little to say about the text, structure, and purpose of the Fourteenth Amendment.   Like most  “originalists,” Scalia has rarely shown a deep or sustained interest in constitutional history.   Even the law-office history in Heller isn’t all that common to his jurisprudence.    Much more instructive is his conduct in the follow-up case McDonald v. Chicago, in which both at oral argument and his separate opinion Scalia was contemptuous of Thomas’s arguments that the Court should try to correct the hash the Court made of the privileges and immunities clause in the Slaughterhouse Cases.
  • To put it another way, Robin argues that “Scalia’s philosophy of constitutional interpretation — variously called originalism, original meaning, or original public meaning — is often confused with original intention.”   As I’ve argued in more detail before, I think that in practice this is meaningless distinction; essentially, “original meaning” involves consulting the same sources of evidence and making the same types of arguments as “original intention.”   The only difference is that the former is superficially more plausible.   It’s relevant only because 99% of the time invocations of originalism are a rhetorical strategy — a way of implying that opponents are just ignoring the Constitution — rather than a grand theory that governs judicial interpretation.   Scalia — who gets credit for being a principled originalist even though originalism doesn’t have a lot to do with his actual jurisprudence — is a case in point.

At any rate, almost any part of the book inspires a lot of thought, so it’s definitely worth checking out.


Comments (16)

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  1. UberMitch says:

    Scalia was contemptuous of Thomas’s arguments that the Court should try to correct the hash the Court made of the privileges and immunities clause in the Slaughterhouse Cases.

    I think you meant to say “Stevens’s,” not “Thomas’s.”

  2. efgoldman says:

    Speaking of reactionaries, Charlie is the best, an he’s actually getting better!

  3. Ralph Hitchens says:

    Scalia absolutely positively defines outcome-based jurisprudence. He’ll stretch the law and milk his vast repertoire of sarcastic phraseology for all it’s worth to ensure a conservative Republican outcome. Even Thomas will jump ship on rare occasions, but Scalia — never!

    • Richard says:

      Simply not true. Scalia ruled that the First Amendment protects flag burning and has adopted a reading of the confrontation clause that has freed drug dealers. Neither protecting flag burners nor freeing drug dealers is a conservative Republican outcome.

      • R Johnston says:

        Scalia really doesn’t want to be thought of as a completely unprincipled partisan hack, even though he is one. There are a handful of issues where he just doesn’t give a fuck and can come down opposed to Republican consensus without causing any actual partisan harm to the Republican party. That he takes the chance to do so is about his vanity and is not a matter of principle. Scalia never departs from conservative Republican doctrine on an issue that has the potential to actually harm Republican interests.

        • Richard says:

          But that isn’t what Ralph Hitchens said. He said Scalia never arrived at a result that was not consistent with a conservative Republican position which is just dead wrong. And I think you are grossly mistaken when you claim that Scalia’s decision on flag burning (or on significantly increasing the burden for prosecutors to successfully prosecute drug dealers) is an issue where he doesn’t give a fuck. I don’t know how you could possibly know whether he is deciding a case on principal or on vanity. I’m no adherent of Scalia’s jurisprudence but these types of attacks on him are simply not born out by the public record of his decisions

  4. marc sobel says:

    My twitter summary of this wonderful book was that it showed what sick fucks conservatives are yesterday, today and forever.

    • c u n d gulag says:

      Well, after all, isn’t ‘sick fuckism’ what they’re all trying to conserve, always have, and always will?

      What else besides ‘sick fuckism’ have they ever stood for?

  5. ajay says:

    the relish Scalia often takes in getting things to come out wrong is a particular trademark.

    This is a huge part of conservative thinking generally, isn’t it? Being able to come out with convincing reasons why the obvious, simple solution just won’t work and will in fact make things worse. “If people are poor, can’t we just give them more money?” “Isn’t torture obviously really bad?” “Shouldn’t we try to reduce pollution?”

  6. Epicurus says:

    While I am not a lawyer, and therefore not qualified to criticize the good Justice’s idea of jurisprudence, I will agree that he is a Republican ideologue, who uses his skills to ensure that “his” interpretation of the Constitution is always correct. Also, too, “original intent”??? WTF, does Justice Scalia have delusions of clairvoyance? The intent of the Founders was to provide a framework for the basic laws of this republic, and by golly, they even included a mechanism for CHANGING IT. So much for “what the Founders intended.” Marginally better than Alito and Thomas, but that is setting the bar quite low.

  7. Aaron Baker says:

    I read David Bernstein’s post, and I can only conclude he’s not all there. Does he really think that Ayn Rand is something other than a talentless hack? Absolutely jaw-dropping.

  8. […] Lemieux, my go-to guide for all things constitutional, took issue with my discussion of Scalia here. For the last couple of weeks, Howie Klein has been burning up the internet with almost daily blogs […]

  9. […] have no idea how Scalia’s talk-radio tone is really materially relevant to anything. As I said at the time, my fundamental disagreement is that I think Scalia’s “dominance” of the Court […]

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