|Principles you won't find on the John Roberts side of the Supreme Court [Jacques Louis David's Death of Socrates (1787). The Metropolitan Museum of Art, New York.]
How Scalia’s Shamanism Shapes John Roberts’s Court
Pierre Tristam/Candide's Notebooks, January 18, 2006
Tuesday’s Supreme Court decision upholding Oregon’s assisted suicide law is a great victory for humanism and the rule of law. It is a rare defeat, these days of bullying pieties, for Washington’s College of Cardinals occasionally referred to, for politeness’ sake, as Bush Administration conservatives. But the decision should dispense with any lingering (though still potent) inventions about Chief Justice John Roberts’ “pragmatism,” “moderation,” or intellectual honesty. Only Sam Alito, who’s more right-wing than Thomas, makes him look a Hamburg winter’s shade to the left of the hyper-right. That’s not saying much for someone who remains firmly clenched somewhere between Thomas and Scalia. Roberts is the stealth reactionary any close reading of his jock-like, power-hungry legal decisions make him out to be. His willingness to go along with the dissenters’ oily, Bush v. Gore-like reasoning around constitutional principle (to say nothing of their own federalist principles) reveals him to be dishonest, too, when politically expedient. So much for a change on the court.
But it’s worth taking a closer look at the dishonesty’s shamanism. It hums in Scalia’s dissent. Scalia won’t be around for ever. His dissents are teaching his successors, who are verging on a commanding (and, to the country’s independent judiciary, fatal) majority, how to pull the wool over the Constitution’s eyes. John Roberts is his prime pupil. Watch and learn from the Grand Inquisitor himself, who thinks nothing of slapping his own principles silly if it advances his personal agenda.
In A Matter of Interpretation, a book-length essay he wrote in 1997, Antonin Scalia described his how-to reading of law succinctly: “What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended.” He doesn’t like “liberal” constructions of laws or such things as “leniency” rules, what he calls “dice-loading rules” that use interpretation over actual meaning of the text. Start doing that, and there’s no limit to how you can interpret, and skew, a law in favor of one agenda or another. So stick to the text. “And how clear is an ‘unmistakably clear’ statement?,” he asks. “There are no answers to these questions, which is why these artificial rules increase the unpredictability, if not the arbitrariness, of judicial decisions.” And so, being as precise as any practicing Catholic can ever be before God, Scalia specifies: “The text is the law, and it is the text that must be observed.”
In his dissent in Gonzalez v. Oregon on Tuesday, of course, Scalia overturned Scalia by embracing dice-loading over original meaning in three easy steps.
Scalia concedes that it’s “easy to sympathize” with the “feeling” [my emphasis] that assisted suicide is “none of the Federal Government’s business.” Right off, he’s downgraded law to feeling—one of the sins of jurisprudence that A Matter of Interpretation warns against. That’s step one. Step two is his slither around the Constitution. “The prohibition or deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution.” But since the government has the right to ban the sale of lottery tickets or “the interstate transport of women for immoral purposes” (those precedents date back to 1903 and 1913), it is within the realm of government’s responsibility to protect “public morality,” and what’s more nobly protective of “public morality” than the prohibition on assisted suicide? This is Antonin Scalia as Penn & Teller, an illusionist of precedent in one context used in the service of another. For the trick to work, you have to suspend belief in “public morality” being a local matter, or “public morality” having not changed in 100 or 200 years. That entails suspending belief in federalism, too. And so: “Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible.” How did a narrow and specific prohibition under the commerce clause turn into “a long and well-established principle of our jurisprudence”? Magicians don’t like to reveal their secrets.
It gets better. Scalia scorns manipulating “unmistakably clear” statements in the name of those “evolving standards of decency” that the Warren Court wrote about, and that Scalia despises. He scorns what he calls the “smuggling in” of new rights under such things as the Due Process clause. But he thinks nothing of devolving standards by smuggling in a meaning of his own into “unmistakably clear” statements: “If the term “ legitimate medical purpose” has any meaning, it surely excludes the prescription of drugs to produce death.” It’s easy to sympathize with the belief, as a philosophical belief. But the Constitution isn’t philosophy, and it isn’t a values council. It’s law. The Scalia dissent is not Scalia as a textualist. It’s Scalia as an interpreter, a legislator and a smuggler all in one. It is Scalia the old opportunist, using his fabulous mind to fabulist ends. Why hasn’t anyone thought of him as the poster boy for the United Negro College Fund’s tag line?