I have found myself pondering the recent Linda Greenhouse-Orin Kerr flurry about Justice Scalia, his “bullying,” and his “bomb-throwing opinions.”
I have come to the conclusion that this is a case of judicial apples and oranges.
Greenhouse, veteran member of the Supreme Court press corps who writes for the New York Times, observed that she could not “think of an example” of one of Justice Scalia’s by-now-renowned scathing dissents “ever enticing a wavering colleague to come over to his corner.” This despite their vehemence and high decibel level.
Kerr, law professor and contributor to fellow lawblog The Volokh Conspiracy, responded that the Justice himself has explained why he dissents: “I’m advocating for the future. … I’m writing for the next generation and for law students.”
Greenhouse finds Scalia’s “inflammatory” statements and “intemperate” displays incomprehensible because they fail to convince his judicial colleagues on the Court.
Kerr shows us that Scalia knows that and is playing a different game entirely: “I’m not going to persuade my colleagues and I’m not going to persuade most of the federal bench.”
Greenhouse assumes that dissents are focused on the case at hand—what the other members of the Court are doing. In this view, a dissent is designed to detach a vote or limit the reach of the majority opinion.
Kerr presents Scalia as writing dissents as rallying cries for “the next generation.” In this view, playing nice with your colleagues doesn’t matter because it’s not about them at all. It’s about future law professors and the students they will teach.
In a kinder, gentler age (October Term 1985), I was a law clerk for Justice Byron White. In 1962, after his (kinder, gentler) confirmation hearing, Justice White replied to the question as to the Court’s role in classic Justice White fashion–pithy and to the point: “To decide cases.”
“To decide cases.”
If the role of the Court is to decide cases, then the role of majority opinions is to explain how they are being decided, and the role of dissents is to explain why Justices disagree with the majority decision in that case.
And no more. This may go a long way toward explaining why many have found Justice White’s “judicial ideology” incomplete or incomprehensible.
Here, law emerges from opinions as a discernible image emerges from dots of paint in a Pointillist painting.
This is the apples, Greenhouse, view of the Supreme Court. (Is it only a coincidence that she began reporting on the Court in 1978?)
The Scalia-as-illuminated-by-Kerr view of the Court’s role seems to me to be quite different.
In this oranges view, the role of the Court is to tell the country what the law is. The role of majority opinions is to expound that law. Dissents are therefore to undermine that expounded law (could this be the source of the nastiness?) and to offer alternative expositions for the future (could this explain why Supreme Court opinions have gotten longer and longer?).
Here law doesn’t emerge from the visual conjunction of many dots; rather it is delineated by the direct (and sometimes heavy) application of paint.
Justice White once said that judges “have an exaggerated view of their role in our polity.” If the Court’s role is deciding cases, it is unequivocally a supporting actor in our constitutional structure—though it may be called upon to address fundamental issues or to call the leading actors (Congress and the President and of course the states) to account.
The ascendant view, which essentially treats the Supreme Court as a bully pulpit, elevates the Court’s role, gives it more lines in the script, brighter lighting, a more prominent position onstage. (Could this be why Supreme Court cases are increasingly argued by a small cadre of lawyers for whom it is a specialty? Could this be why Court arguments are more and more like traffic at an intersection in Rome in the middle of rush hour?)
This strikes me as a judicial activism of process—as compared to a judicial activism of policy.
I cannot say whether this is intentional or unintentional.
I am not prepared to say whether I think it positive or negative.
I will say that there is a real difference between an apple and an orange.
Thanks to Nick DePetro, Creighton Law School class of 2012, for an interesting conversation regarding the ideas in this post.