It used to make me extremely anxious, all this newfangled out-of-court chattering the Supreme Court justices were doing about their plans for the law. I missed the old days, in which, if justices spoke at all beyond their published opinions, it was to wax rhapsodic about long-forgotten episodes in history or their similarly long-forgotten childhoods. These days, the justices have shown themselves willing to talk about a lot more than where they buy their cherries. And I’m coming around to the idea that’s not such a bad thing.
The recent example I’m thinking about lurks on Page 77 of Norman Pearlstine’s new book about anonymous sources, Off the Record.(Thanks to Slate’s publisher, Cliff Sloan, for spotting it.) Pearlstine lays out the long American tradition of the free press and then—smack in the middle of discussing the landmark libel ruling of New York Times Co. v. Sullivan—he tosses in quite a parenthetical. He notes that “(In an interview, Justice Antonin Scalia told me that given the chance, he would probably vote to reverse New York Times Co. v. Sullivan.)” That’s it. Next graf.
Sullivan was the 1964 decision that laid out a brand-new First Amendment test for protecting the publication of material about public officials; even false statements are famously protected unless they’re made with “actual malice.” This case represented a turning point in our speech law. While still hotly debated on the merits in law schools, it is 40-plus-year-old settled law. And while Scalia’s certainly criticized the decision publicly before, it’s quite something to see him allegedly going on the record to offer that he’d probably vote to overrule it, “given the chance.”
Now before you go all Michael Newdow on the good justice—by which I mean filing all sorts of motions to keep him from ever hearing the next Sullivan-style case on the grounds that he’s already prejudged it—let me make the case for restraint. I, too, have some problems with freewheeling discussions about reversing specific cases in advance. But in light of the court’s recent term, I can’t help but find Scalia’s candor vastly preferable to the loaded silence of his colleagues.
Scalia has long been the exception to the silence rule. In 1996, with two euthanasia cases pending before the high court, he gave a speech claiming there was “no constitutional right to die.” In 2003, he recused himself from hearing a landmark Pledge of Allegiance appeal (Newdow’s case), probably because of a speech he’d given arguing that it had been wrongly decided by the court of appeals. Scalia knows a badly decided case when he sees one, and he just can’t understand why he shouldn’t get to say so.
One of the most interesting themes of this last term was the split between, on one side, Scalia and Justice Clarence Thomas—who appear quite willing, if not eager, to overturn old cases—and, on the other, Chief Justice John Roberts and Justice Samuel Alito, who appear inclined to leave old cases on the books while stripping them of any real force. If Scalia is increasingly of the view that he “doesn’t believe in stare decisis, period,” as he once claimed to be true of Thomas, then it’s useful to know precisely which cases are on his chopping block. In fact, if the justices are prepared to discuss the cases they hope to overrule, maybe they’d also be open to laying out—for ease of bringing future litigation—the kinds of facts they’d like to see.
This isn’t to say that there aren’t worrisome aspects to Scalia’s candor. When justices announce in advance and in the abstract which cases they’d like to overturn, the idea that they decide matters on a case-by-case basis is shattered. Abstract discussions with reporters about which cases might be fun to overrule in the future not only undermine the principles of judicial humility and minimalism, they also suggest that the all-important requirements of standing—the need for an actual “case or controversy” is convenient legal formalism. It signals that the justices are operating according to some broad ideological agenda, rather than confining themselves to deciding cases.
But maybe some of the justices really are operating according to some broad ideological agenda. Maybe the new Roberts Court is in fact committed to overruling decades’ worth of “bad cases.” If Scalia is willing to confess to that kind of project, I’d rather hear the battle plans than not. It’s precisely the sort of candor that has been most lacking at judicial confirmation hearings, where each nominee instead takes the fashionable line that precedent is all but sacred. Insisting that you “have no quarrel with” a holding, or pointless talk of great, caped “super precedents,” will get you confirmed, certainly. But it’s no more honest than claiming that you have given keystone cases like Sullivan or Roe no serious thought throughout your legal career.
I’ve not always been totally kind to Justice Scalia, but more and more, I do enjoy his defiant public honesty. If the Roberts Court is poised for a protracted seek-and destroy mission, better to operate in Scalia’s sunshine than in the dark. An open invitation to the other justices: Let us know what other cases you have in your sights?
