Scalia: 'I don't even have to read the briefs, for Pete's sake'
I do not pretend that originalism is perfect.... We don't have the answer to everything, but by God we have an answer to a lot of stuff... especially the most controversial: whether the death penalty is unconstitutional, whether there's a constitutional right to abortion, to suicide, and I could go on. All the most controversial stuff.... I don't even have to read the briefs, for Pete's sake.
--Justice Scalia, in an interview with California Lawyer.
"I don't even have to read the briefs, for Pete's sake."
This doesn't seem like something you should say if you're a Supreme Court justice.
This is like a judge at Miss America saying he doesn't have to wake up until the swimsuit portion. It may be true, but it's contrary to the whole spirit of the thing. Even people who say that they learned everything they needed to know in Kindergarten don't boast that they won't read books whose letters are not anthropomorphic.
I spend a lot of time not reading legal briefs and assuming that I know what the Constitution says on controversial points, because I once had a vivid dream about James Madison in which he explained everything. This is fine, because I am not a Supreme Court justice. But Scalia is.
In fact, I sleep better at night knowing that the "nine superannuated judges," as Scalia dismissively called them, are actually, to some extent, reading the legal briefs that are handed to them.
Of the current Supreme Court justices, Scalia has always been the one who seems to have a direct line to the wishes of the Founding Fathers. And on a court whose dominant metaphor has been the calling of balls and strikes, he has been one of a new coterie of "inactivist" judges -- often abdicating responsibility for interpreting the law in any way beyond a simple "yes" or "no." But this is binary jurisprudence in an analogue world. And although it may be appropriate in some cases, in others -- especially in the exceptionally complex cases that tend to reach the Supreme Court -- it's fallacious to say that the law will always boil down to a clear ball or strike.
Justice David Souter remarked at the 2010 Harvard commencement that:
the Constitution is no simple contract, not because it uses a certain amount of open-ended language that a contract draftsman would try to avoid, but because its language grants and guarantees many good things, and good things that compete with each other and can never all be realized, all together, all at once...The fair reading model fails to account for what the Constitution actually says, and it fails just as badly to understand what judges have no choice but to do. The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another.
Strict constructionism is based on this idea that the law is clear. But as Justice Souter points out, it seldom is. This is the problem with strict constructionism. That's why I like my constructionism like my men -- not too strict, but not embarrassingly loose either. The balls-and-strikes, leave-it-all-to-the-legislature notion that came to prominence under Justices Roberts and Scalia, is problematic. But it's not only that. This quote reveals a supposed umpire of balls and strikes simply admitting he's already decided where each pitch will fall.
Besides, what does he do with all the spare time that he's not reading briefs? Go flagpole-sitting?
| January 4, 2011; 6:33 PM ET
Categories: Bad Advice, Petri, Seems Suspect | Tags: Constitution, reading, supreme court
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