Justices as “Sacred Symbols”: Antonin Scalia and the Cultural Life of the Law
Publicado en línea: 19 may 2017
Páginas: 7 - 23
DOI: https://doi.org/10.1515/bjals-2017-0002
© 2017 Brian Christopher Jones, Austin Sarat
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.
The idea of the brilliant and elegant philosopher judge has a long and romanticized history. From Sir Edward Coke, William Blackstone and Joseph Story to Oliver Wendell Holmes, Louis Brandeis and Lord Bingham, the common law is replete with this vision of judging. In this vision, judges sometimes seem to be law makers as much as faithful it interpreters. In many ways Antonin Scalia fought against this traditional vision of the philosopher judge. He disliked activist judges who imposed their idea of wisdom on elected legislatures; in fact, he trumpeted his jurisprudence for its fidelity to law and deference to the popular will. But even though Scalia fought against the romantic vision of philosopher judge, he himself became a living symbol of a judicial philosophy, a symbol so powerful that sometimes it was difficult to disentangle the judge from his jurisprudence. His status as a symbol and how he achieved his status was much different from the route of the judges mentioned above. This paper attempts to explain how Scalia became what we call a judicial “sacred symbol.”
Antonin Scalia died in the early morning hours of February 13, 2016. Reactions to his death were resoundingly, even if begrudgingly, laudatory; either way you cut it, Scalia was a giant in terms of his impact on American law. Justice Ruth Bader Ginsburg, one of Scalia’s closest friends on the Court—but also an ideological sparring partner—said, “‘We are different, we are one’, different in our interpretation of written texts, one in our reverence for the Constitution and the institution we serve.” NPR Staff, The Late Show with Stephen Colbert (Feb. 16, 2016),
A range of memorials and acknowledgements followed Scalia’s death. The George Mason University School of Law announced it would rename itself: The Antonin Scalia Law School at George Mason University. Susan Svrluga, John G. Roberts, Jr., Jack Balkin,
In fact, a marked difference highlighted reactions to Scalia’s death and the death of former Chief Justice William Rehnquist one decade earlier, on December 5, 2005. Beyond the shock of an untimely death—it was known for some time that Rehnquist was battling cancer—Scalia’s death left not only a vacancy on the Supreme Court, but was also blow to conservative legal thought. While Rehnquist had served on the Court longer than Scalia, it was Scalia who had pushed for the Court to move its jurisprudence in a different direction. Although, it should be acknowledged that Rehnquist contributed to the originalist movement as well, if only by denouncing “living constitutionalism”. As Justice Kagan famously noted in her confirmation hearings, “we are all orginalists” (see Jonathan H. Adler,
Although the passing of any justice during a presidential election year would generate controversy and concern, the passing of such a provocative and widely celebrated justice certainly enhanced the chaos, creating a quasi-constitutional crisis. In one incident, the Chair of the Senate judiciary committee (Sen. Chuck Grassley (R., IA)), made an unprecedented speech on the Senate floor about the politicization of the Supreme Court, accentuating its politicization—or, at least, the appearance of it. Grassley claimed that this was not the result of the Senate’s confirmation processes,
Scalia’s death has also left a four-four ideological split among the Court’s remaining justices. In some nations this would not be a major issue, but for one in which the Supreme Court decides the “nation’s most pressing issues,” Editorial Board, John Shuppe,
There are signs that, even after the recent Presidential election in the United States, Senate approval of Supreme Court nominations could still be a major constitutional issue. Before the election, some Republicans discussed the possibility that, should Hilary Clinton become President, the Senate would refuse to confirm any of her Supreme Court nominees. David A. Graham, Ilya Shapiro,
To try to make sense of the meaning of, and reactions to, Scalia’s death, we investigate how Scalia became a “sacred symbol.” We are hesitant to provide a definition of “sacred symbol” here, but do so below, after we have taken these issues into consideration. In terms of how Scalia may have been a “sacred symbol” not only in America but also in foreign jurisdictions, see James Allan’s article in this collection: James Allan,
We follow this by addressing Scalia’s rise as the leader of conservative jurisprudence. Tracking Scalia’s trajectory, including his connections to the 1980s conservative movement and other prominent conservative legal thinkers, like Robert Bork, is essential to understanding his “sacred symbol” status. Here the issue of judicial “mandates” arises. Although it may be odd to think in such terms, many American judges are characterized throughout their careers by reference to who nominated them and when they were nominated. Indeed, nomination by a particular president often impacts how the media or general public perceives justices. We discuss the significance of the perception that Supreme Court judges have “mandates.”
Next, we consider Justice Scalia’s writing. Scalia was notorious for the strident tone and rhetorical ingenuity of his opinions and often mentioned that this was used to engage his readers. While questions arise concerning the audience for Supreme Court opinions, it is not surprising that Scalia had his own thoughts on the matter; he repeatedly stated throughout the years that one of the primary audiences for judgments was law students. Connected to Scalia’s writing, we scrutinize the way he used humor. He often found moments for laughter, and this was especially so on the bench—either in oral argument or through his sarcastic opinions.
In the following section we examine how Justice Scalia used and marketed his jurisprudential theories. His prolific writing and active promotion of “originalist” and “textualist” theories raise further questions about judges and their connection to popular culture. Finally, we return to the idea of Scalia as a “sacred symbol” and consider how this idea may impact the cultural life of the law. Although there is a large literature on judicial reputation and the behavior of judges,
In some jurisdictions supreme or constitutional court justices seem to be contemporary deities, balancing the scales of justice through reasoned (and sometimes impassioned) judgments; in other jurisdictions, such judges are merely… well, judges. This distinction sometimes hinges on constitutional structures and types of judicial review available in particular jurisdictions, but as other researchers have acknowledged, separating strong-forms and weak-forms of review is not as easy as it seems. Aileen Kavanagh,
Without a doubt, the constitutionalization of rights throughout the world has brought about a judicial renaissance, Lee Epstein, Jack Knight & Olga Shvetsova, The Role of Constitutional Courts in the Establishment and Maintenance of Democratic Systems of Government, 35 Law & Soc’y Rev. 117 (2001). See, e.g., Ran Hirschl, Towards Juristocracy: The Origins And Consequences Of The New Constitutionalism (2004). Ginsburg and Virsteeg found that the ability of courts to “supervise implementation of the constitution and to set aside legislation for constitutional incompatibility” increased from 38% in 1951 to 83% in 2011 (Tom Ginsburg & Mila Versteeg, Why Do Countries Adopt Constitutional Review? 30 J.L. Econ. & Org. 587 (2014)).
When Alexander Hamilton characterized the American judiciary as the “least dangerous branch” Federalist No. 78. Supreme Court, Gallup, The Court’s approval rating remains high even with the numbers mentioned earlier. See, e.g., Brian Christopher Jones, Disparaging the Supreme Court, Part II: Questioning Institutional Legitimacy, 2016 Wis. L. Rev. 239 (2016). The piece notes how the Court, compared to Congress, may get a free ride as regards similar issues, such as workload or institutional output.
Adding to this prominence is the fact that, in the United States, judges have become more significant as public figures who participate in a wide range of extra-judicial activity, such as delivering speeches, agreeing to interviews, appearing on talk shows, and of course writing scholarly books and articles. While Supreme Court justices—and the American judiciary as a whole—have long been involved in such extra-judicial activities, today they are much more common. But whether or not this increase in extra-judicial activity carries positive implications for the judiciary remains to be seen. As Jeffrey Shaman has stated, the “line between permissible and impermissible extra-judicial activity is not an easy one to walk, and is redrawn from time to time.” Jeffrey M. Shaman, Judges and Non-Judicial Functions in the U.S., in H.P. Lee, Judiciaries In Comparative Perspective 528 (2011).
Some may look at Scalia’s tenure on the Court and find it relatively easy to classify him as a “sacred symbol;” others may scoff at the idea of thinking of him in that way. Sceptics would point to the fact that, although Scalia served on the Court for close to thirty years, he was not even in the top ten of the Supreme Court’s longest-serving justices. List of United States Supreme Court Justices by Time in Office, Wikipedia, District of Columbia v. Heller, 554 U.S. 570 (2008). Joe Patrice, Justice Scalia Forced to Eat Crow for His Own Smugness, Above The Law (Sept. 3, 2014), Joe Johns, Antonin Scalia Known for Sharp Mind and Brash Demeanor, CNN (Feb. 13, 2016), Margaret Talbot, Supreme Confidence, New Yorker (Mar. 28, 2005), Dahlia Lithwick, Scalia v. Scalia, Atlantic (June 2014), Richard L. Hasen, The Most Sarcastic Justice, 18 Green Bag 2d 215 (2015).
Nonetheless, many other things turned Scalia into a “sacred symbol,” and these are explored below.
Like Justices John Roberts, Elena Kagan, Sonia Sotomayor, Clarence Thomas, Steven Breyer and Samuel Alito, and a host of other SCOTUS justices before them, Scalia had extensive experience in federal government before ascending to the bench, and thus was familiar with the politics of law and the law of politics. Scalia served in government at a time when ideas about originalism were on the move both intellectually and practically, and like any great opportunist—and without a doubt, Scalia was one—Scalia took advantage of it. When Bork, Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971). William H. Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693 (1976). Raoul Berger, Government By Judiciary (1977). Edwin Meese III, Speech Before the American Bar Association (July 9, 1985); See also, Edwin Meese III, The Case for 'Originalism', The Heritage Foundation, See,
The idea of judicial mandates arises from the fact that in the U.S. federal judicial appointment stems from a political process: nominations operate on a fairly open process that involves selection by the President and confirmation from the Senate, two inherently political branches. Until recently that process worked relatively smoothly, Of course, not all those that were nominated to the Court acceded to it. There have been many withdrawals and some votes against candidates. US Federal Judge Merrick Garland, Barak Obama’s Supreme Court nominee to replace Justice Scalia, waited over 125 days, passing the previous record set by Louis Brandeis, for even a hearing on the possibility of assuming office. Ultimately, that hearing never came. Keith J. Bybee, All Judges Are Political Except When They Are Not: Acceptable Hypocrisies And The Rule Of Law 12 (2010). (“The media regularly identifies federal judges by the president who nominated them & consistently tags judges as either “liberal” or “conservative”, implicitly suggesting that judicial actions are best understood as a form of partisan policymaking”).
The expectations arising from judicial mandates fueled controversy about Chief Justice John Roberts’ role in protecting the Affordable Care Act (“Obamacare”) against potentially fatal legal challenges in 2012 National Federation of Independent Business v. Sebelius, 567 U.S._, 132 S. Ct. 2566 (2012). King v. Burwell, 576 U.S._, 135 S. Ct. 2480 (2015). Caitlin Hillyard, Roe v. Wade, 410 U.S. 113 (1973).
The idea of judicial mandates certainly has political and legal implications that may impact judicial independence, a notion that is considered an essential and longstanding element of the rule of law. If judges feel under any obligation to the president who nominated them, it may compromise their ability to impartially adjudicate.
As regards Scalia, there is no doubt that he fulfilled and even surpassed his mandate. Scalia used his conservative background, perhaps even his religion, Associated Press, Scalia Dismisses Religious Neutrality: 'Nothing Wrong ' with State Invoking God, Guardian (Jan. 2, 2016), Noah Feldman, Justice Scalia: The Last Originalist, Bloomberg View (Feb. 16, 2016),
Long known as a leading “formalist,” Cass R. Sunstein,
Law students cannot yet practice law, but they do have to read and discuss Supreme Court opinions. Scalia believed that if students must read these opinions, then the decisions should be entertaining and engaging. But if Justice Scalia aimed at legal amateurs, why would he not aim his opinions at the wider citizenry? There is certainly nothing wrong with justices aiming their opinions at a wide audience. After all, using non-technical or “plain language” is something that other judges have championed; Sonia Sotomayor has incorporated plain language tactics, and has noted that the technical language of the law may obscure the relevance of a decision.
A political scientist may think that Supreme Court judgments are relevant for a number of reasons. For example, such decisions may demonstrate a political check on executive or legislative actions, thus justifying the separation of powers; or a decision may have direct relevance to a prominent political issue, thus presenting an opportunity for political mobilization. This expands the potential audiences for judges and their decision but does not necessarily go far enough.
A cultural viewpoint, however, would provide a more complete perspective. Such a perspective recognizes that judicial opinions are used not just by legal and political actors, but by a plethora of individuals, from journalists, academics, businesses, and police forces to citizens and even by others in foreign jurisdictions. Some opinions may even become cultural touchstones, assuming iconic status for citizens (i.e.,
Justice Scalia famously repeated the line, “I am an originalist. I am a textualist. I am not a nut,” Jeffrey Rosen, Antonin Scalia, Ryan A. Malphurs, Jaime Bochantin, L. Hailey Drescher & Melissa Wallace Framer,
It is difficult to ascertain just how or why Scalia felt the need to frequently make light of the work of the Court or himself or of a particular situation. Perhaps it was humor for humor’s sake, and that is fair enough, especially in a world that often takes things far too seriously.
Scalia’s influence on American law—and perhaps more importantly, on how constitutional cases are interpreted throughout the state and federal judiciary—was immense. He championed Lawrence B. Solum, Antonin Scalia & Brian Garner, Reading Law: The Interpretation Of Legal Texts (2012).
Many U.S. judges have been recognized as leading interpretative theorists, but not all of them sat on the Supreme Court. Jerome Frank, a leader in the legal realist movement, sat on the U.S. Court of Appeals for the Second Circuit between 1941 and 1957. His first book, Jerome Frank, Law And The Modern Mind (1930). Jerome Frank, Law And The Modern Mind (2009). Richard Posner, The Economic Analysis Of Law (1973). Although, the latest reaction to the High Court’s decision regarding Brexit ( T Om Bingham, The Rule Of Law (2011).
Throughout history American judges have produced serious, academic scholarship, Shaman,
Engaging in academic scholarship is fundamentally different from actively marketing ideas to the citizenry. And yet Scalia engaged in such marketing activities. At one point the Dan Slater, Antonin Scalia & Bryan Garner, Making Your Case: The Art of Persuading Judges (2008). Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts (2012).
Although U.S. Supreme Court decisions have been shown to generally follow public opinion, For a historical take on this,
The theory of originalism has a deep association with American popular culture and the public’s understanding of state symbols such as the Founders and the Constitution. Indeed, we are not the first ones to make this case. Michael J. Gerhardt, For example, the prospects of constitutional review of legislation and the striking down of Acts of Congress, although it occurs on a regular basis today, were not inherent features of the 1789 Constitution. These aspects were decided in Brian Christopher Jones,
Scalia’s use of originalism is certainly not the only example of his unique connection to popular culture. Scalia’s judicial and extra-judicial writings, in addition to his courtroom and non-courtroom antics, generally got a wide amount of media attention. Steve Twomey, Dep’t Health & Human Services v. Florida (Oral Argument) (Mar. 27, 2012), p. 13, The trail that stretches back to the early 1990s when Bill Clinton proposed a universal health care system. David B. Rivkin Jr., a prominent libertarian lawyer, penned an oped in the Wall St. Journal asking a similar question: can the government regulate the diets of those it deems overweight? After consultation by Mr. Rivkin in 2009, Senator Orin Hatch (R., UT) made a similar point about buying “certain cars, dishwashers or refrigerators.” This led to Terence Jeffrey’s 2009 article in CNS News entitled: “Can Obama and Congress Order You to Buy Broccoli. ( National Federation of Independent Business v. Sebelius, 567 U.S._, 132 S. Ct. 2566 (2012).
But Scalia was far from the only Supreme Court justice to permeate popular culture. In fact, other SCOTUS justices, such as Ruth Bader Ginsberg, are also prominent pop culture symbols. After all, the latter has her own nickname (The Notorious RGB), This is modelled after famous 1990s rapper, the late Notorious BIG. Michael D. Shear, One of the coffee mugs available even bears the inscription “The Ruth will set you free.” Although, she did speak out against a Donald Trump presidency in July 2016: Adam Liptak,
This pop culture relevance can be contrasted with other countries that have Supreme or Constitutional Courts. In some jurisdictions judges are widely viewed as out of touch with popular culture; and indeed, they are certainly not known or “celebrated” in the same way as SCOTUS justices. This is certainly the case in Britain, as the judiciary on the whole is relatively unknown outside of legal circles, has been criticized as being out of touch, un-representative, and oblivious to popular culture. This widely held perception throughout the United Kingdom led to the 2012 announcement that judges must undergo cultural awareness training at the Judicial College. Jack Doyle, Kier Baker, David Barrett,
At some rudimentary level, being in tune with popular culture means that judges must understand and use the technology that is shaping society, and which can open up the judiciary to increased transparency and accountability. Perhaps surprisingly, this is where Scalia—and on an institutional level, the U.S. Supreme Court more generally—have repeatedly chosen to be out of step with popular culture. UK Supreme Court (@UKSupremeCourt), Twitter,
From the above, it should be obvious that Scalia had an ambivalent relationship with popular culture, engaging with it when it suited his interpretive style, method of justice, or promotional aspirations, and also shunning it when it could potentially take him out of his comfort zone or damage his credibility.
Calling Scalia a “sacred symbol” captures something of his significance in law, politics, and popular culture. As we see it, for a judge to become a sacred symbol he or she must:
profoundly affect the course of American jurisprudence Although, it does not necessarily have to be “American” jurisprudence; the “American” label can be dropped if need be. Yet, given that we’re primarily analyzing American law, that is what we have inserted here. the significance and impact of his/her judicial opinions, his/her influence on other members of the judiciary, or through his/her extra-judicial writing/speaking; have a large segment of the citizenry—including those outside legal and political circles—develop a profound attachment to him or her.
and
Some justices may fulfill one or the other of these criteria, but not both. Justice Ginsburg clearly satisfies the second, considering that a large segment of Americans know her, identify with her, and hold her in high esteem. However—while certainly no intellectual slouch—it would be difficult to say that she has “profoundly” affected the course of American jurisprudence. On the flip side judges have often profoundly affected American jurisprudence, but for whatever reason, have not achieved much societal attachment.
When a judge becomes a “sacred symbol” he/she may foment internal division on a court, and attract wanted and unwanted attention. In Scalia’s case the intense controversy surrounding President Obama’s effort to replace him arose from Scalia’s status as a “sacred symbol.” Judges as “sacred symbols” may impose high costs on the courts on which they sit and in the legal systems in which they serve.
Recently Keith Bybee splendidly articulated the complex duality of the American legal system: that citizens tend to recognize judges as independent actors who make impartial decisions, but in so doing they recognize that politics or partisanship plays a vital role in judicial decision-making. Bybee, We thank Institutum Iurisprudentiae, Academia Sinica Assistant Research Professor Yen-Tu Su for this particular insight.