September 23, 2010

Justice Scalia Takes On The Media

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I want to believe that the job of the opinion columnist is a lot like that of a judge. Columnists and judges, after all, are both generally faceless to their readers. They both spend weeks or months of effort in an attempt to put just the right words on just the right ideas. And what is their reward? A few zeroes and ones in a database somewhere, and, if they’re lucky, a few inches of space in an archival volume that will gather dust on a shelf in the corner of the basement of a university way out in the middle of nowhere. What’s more, their work, even if it is not horrible from the get-go, quickly slides into irrelevance. If you don’t believe me, trot on over to Myron Taylor Hall and find the reported opinions of the tax courts or the National Labor Relations Board — both on the second floor, in case you were wondering — and you’ll find a cure not only for insomnia but even the worst depression. Someone, it turns out, does write drier, more uninteresting prose than you do. And don’t ask where to find my opinion column from last year. I’m too embarrassed to know where to point you.What’s most fun is to follow is the occasional dust-up between columnists and judges. And who better to follow than the Italian-American sensation of 1 First Street, Justice Antonin Scalia. Possessed of an impressive conservative intellect matched only by his mercilessly acerbic writing style, Nino is no stranger to journalist-fueled controversy. In 2004, lawyers trying a case before the Supreme Court asked him to recuse himself from a case involving then Vice President Dick Cheney, who was being sued in his official capacity for the release of documents related to his Energy Task force, on the premise that a group hunting trip they both attended made Scalia impartial. Journalists and politicians everywhere wanted him off the case, but he responded with his typical sharpness, writing, “If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the nation is in deeper trouble than I had imagined.” He has a point. Columns in the self-appointedly august op-ed pages of The New York Times and taciturn law review articles, sinking under the weight of their own footnotes, cannot and should not stop a justice of our highest court from giving us his best opinion on the law of the case, regardless of the stink that such obviously not-disinterested parties might raise about “the appearance of impropriety.” Another Scalia-media dustup came just last year, when the Justice gave a speech to the University of Arizona Law School, expounding on the use of the philosophy of originalism in Constitutional interpretation. His philosophy — a variant of textualism that arrives at answers to questions of interpretation and construction by attempting to recover the meaning those words held for the original relevant public audience — is roundly mocked in the liberal legal academe as “wooden” or “formalistic,” as if law is not both of these things writ large. In fact, the criticism likely stems more from the fact that originalism (disappointingly applied sporadically by Nino himself) leads to “conservative” results that liberals dislike for purely political reasons. It is no surprise, then, that the always-ignorant, usually liberal media jumped on Justice Scalia for something he said in the Arizona desert that could only sound like a segregationist argument to the liberal ear. He stated his agreement with the dissent in Plessy v. Ferguson, the 1896 case which upheld racial segregation laws on the basis of “separate but equal.” The dissent argued, in part, that racial discrimination was inconsistent with the original public meaning of the Fourteenth Amendment’s Equal Protection Clause, an originalist view with which Scalia agrees. The dissent had offered a sounder argument for a Constitutional prohibition on race-based discrimination than the textually ungrounded statements from the Warren Court about the inherent incompatibility of separation and equality. Justice Scalia was tagged as agreeing not with that dissent, but with the Plessy decision itself. Of course, the retractions came in the next day, but the media’s loyalties and political predilections were already laid bare.

Justice Scalia recently advocated for originalism again, this time at the U.C. Hastings Law School. He reiterated that originalism gives easy but unpopular answers on legal questions concerning women’s rights, gay rights and other hot-button issues that occupy court watchers. This speech has been widely — and thankfully, accurately — reported. Like the column you are reading, however, it will fall quickly into oblivion, and no one 100 or even 20 years from now will much care what the son of Sicilian immigrants had to say about such things. Just as no one cares for the aimless musings of a third-year law student trying to get a column in on time.

Francis Sohn is a third-year law student and a Managing Editor of the Cornell International Law Journal. Feedback may be sent to [email protected]. Barely Legal appears alternate Fridays this semester.

Original Author: Francis Sohn