Part 10 of the series, "The Structure of Lies in Conservative Jurisprudence."
In the series so far, we've looked at two different sorts of confirmation process lies: the specific, incidence-related lies of William Rehnquist and Clarence Thomas and the general, philosophical lies of John Roberts.
It's my contention that these two types of lies are coherently related to the political environments they emerged out of. Rehnquist and Thomas were both figures deeply and obviously at odds with the broad sensibility of the country. But through custom, there was no clear way in which the country's views mattered in the confirmation process. All that mattered was that a president nominate them, and they somehow get through the confirmation process. So their lies were structured by the most mundane of careerists considerations.
They were “anti-gotcha!” lies for characters with some really big "gotcha!" skeletons in their closets. And they were paired with a different sort of lie—a narrative of conservative judicial rectitude, based on simplistic pseudo-principles which were never actually believed, but were not effectively challenged, either.
The failed nomination of Robert Bork marked a turning point of sorts — although there is more continuity than many suppose. Thomas came after Bork, and yet more closely resembled Rehnquist in large part simply because he was black, which gave him a level of political protection no other conservative Supreme Court nominee enjoyed. But his trickery in getting on the Court only served to intensify the changes the Bork confrontation served to mobilize. The result was both a retreat from grand judicial theories on the right, a fall-back to more neutral-sounding postures which were even more consciously deceptive than the earlier originalist and strict construction narratives had been—which is what I just exposed in my diaries about John Roberts.
As the Court's leading conservative theorist, it's appropriate to put Antonin Scalia's philosophy under a microscope in order to show just what I mean about “simplistic pseudo-principles which were never actually believed, but were not effective challenged, either.” In the more detailed two-part diary that follows this one, I want to do that by employing an analysis by a highly respected conservative theorist—none other than Richard Posner, whom many have regarded as the leading conservative judicial theorist not sitting on the Supreme Court, but who's definitely struck out on his own for a while now, openly referring to the GOP as “goofy”. At the same time, I also want to offer my own gloss on what he uncovers. Posner finds Scalia's philosophy “incoherent”, which is actually tantamount to saying that it is lawless—which Posner presumably would not say, but I will.
In drawing this conclusion, I am setting myself up for making a larger argument about the cognitive failure of conservatism vis-a-vis constitutional visions—a point I'll expand upon in a future diary. Furthermore, I also conclude that Scalia is grossly incompetent in reading other legal writers as well as in understanding what he himself is up to. His reputation for brilliance is fundamentally misleading: He may be able to set off fireworks, but he can't keep from getting burned in the process. So how brilliant is that, exactly? This is not simply a personal failing of Scalia's. It is a direct consequence of the cognitive choices and commitments he has made—a point that will be developed further in a later diary.
But before getting to Posner's critique of Scalia, I want to make a broader point, which is connected to the last diary, occasioned by the acquittal of George Zimmerman. There can be no doubt that a major impetus for the modern conservative judicial movement is a white supremacist reaction to Brown v. Board of Education. Rehnquist argued against it—and lied about doing so —and the lines of reaction only multiple from there on. Ideological practices such as “strict construction”, “originalism” and the like can only be understood historically as hegemonic devices intended to promote pseudo-objective foundations for turning back the egalitarian tide that threatens to sweep away white supremacy once and for all.
A passage from a brief post by Scott Lemieux in 2005 helps flesh this out a bit as a preparation for the longer analysis from Posner in the diary to come:
Scalia’s claim that originalism can “depoliticize” constitutional discourse is incorrect for three major reasons. The first is that, as Richard Posner (and countless others) have noted, the choice to use originalism is itself a political choice. The text of the Constitution does not require that it be interpreted by the use of any particular method. It is not, of course, surprising, that “originalism” is preferred by conservatives, as by definition it will tend to produce more reactionary outcomes over the long run. This is fine, and it’s perfectly appropriate for conservative presidents to take these consequences into account, but the use of “originalism” is in no way somehow innocent of politics.
This is a spectacular understatement, and I'll have occasion to return to this point again in a later diary. For now, I'll simply note that it's without question that there was an enormous gap between the high ideals of equality and freedom repeatedly endorsed by our Founding Fathers and the lived reality of their utter dependence on a system of slavery, genocide and mass theft of native lands.
Given this profound disconnect, their “original intent” can be construed in a wide range of radically different ways—as what they said, ignoring the contradictions, as intentionally hiding and denying the contradictions, as justifying the actual evil in terms of the imagined ideals, etc. Thus, the choice of what's meant by “original intent” is itself entirely dependent on the agenda of the person defining “original intent”. What parades itself forth as entirely objective is actually the exact opposite. How much bigger do big lies ever get?
Moving on, even assuming a much less problematized view of “originalism”:
Second, even among its adherents “originalism” does not yield determinate outcomes. The historical record is inherently inconclusive even for trained historians, and of course law office history generally falls well below such standards. In addition to that, originalism does not answer important questions such as the level of generality at which constitutional clauses are to be interpreted. Randy Barnett and Robert Bork are both originalists, but obviously disagree on countless issues. Pick any landmark case: Lochner, Brown, Roe–and you’ll find serious originalists on both sides of the question.
Well, I said it was a “less problematized view of 'originalism'", but it shows how the problems immediately start sneaking back in, even if they're not quite on the scale of the original sin of slavery. These are problems that remain even if one abandons originalism as a guiding philosophy, and just tries to use it as a practical guide to understanding what the law original said or meant. Generally speaking, I think it's clearly helpful to look back and how and why a law came into being. But for the reasons pointed out above, it's also often problematic as well—sometimes much more problematic than helpful.
Lastly, there's the point that Posner's critique lays out most extensively, as we'll see in the next diary:
And finally, in practice Supreme Court justices are never fully constrained by grand theory.
This may, perhaps, be true of all grand theories to some degree or another, but the problem is surely much worse for people with the narrowest theories and the greatest blindness to their own arbitrary departures. When a grand theory is articulated in terms like Dworkin or Breyer advanced, it may not “fully constrain” them in every instance.
But so what? They are not saying, “I have no choice, this is the only way I can rule.” They are saying, “I can only rule this way, because of my profound belief in X.” There may be cases where X simply doesn't come into the picture. But Scalia is making a much more sweeping claim—and one that we shall see he also frequently ignores, even as he claims this isn't possible.
This, then, is the broad-bore problem with Scalia's originalism. Next up is a far more detailed view, in a two-part post exploring and expanding on Posner's critique.