PersuasionJustice Antonin Scalia is persuadable. Or he finally thinks you are.
Posted Saturday, May 10, 2008, at 7:02 AM ET
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StumbleUponSome of Scalia's colleagues have not given up all hope of exerting intellectual influence on the court or on the public. In a Washington, D.C., debate against him last year, Scalia's more liberal colleague Stephen Breyer laughed that after writing his own dissents, he invariably proclaims to his wife that "this time it will really persuade them!" In that same spirit, Breyer authored Active Liberty in 2005, a book aimed at selling his own constitutional methodology. But Scalia has always seemed more comfortable marinating in his own rightness. He'd either given up on us or just wanted it to look that way.
Perhaps Scalia rejects the burden of winning over his colleagues because he came to the high court in 1986 weighted down with the expectation of conservatives who saw him as the constitutional antidote to former Justice William Brennan—who schmoozed his way from one liberal triumph to another in the 1960s and early '70s. But Scalia never did manage to glad-hand his way to a conservative counterrevolution. He didn't really try. Some commentators even believe his slash-and-burn approach was responsible for pushing some Rehnquist Court moderates leftward.
Scalia seems not the least bit bothered by his inability to convert his colleagues to his constitutional world view. (Clarence Thomas came to the court already embracing an even more radical theory of originalism than Scalia's.) The court has moved dramatically to the right, not because of Scalia but thanks to the appointment of two new conservative jurists. They may share his conservative principles but not his originalist bent, and perhaps that has led Scalia to seek—finally—a broader audience: He's now reaching out to sell the rest of us—the guys he used to call "Joe Sixpack" back when teaching law school—on the elegant simplicity of originalism.
Critics will argue he's just using the media to move books. I don't think so. I suspect that at 72, Scalia is starting to think about his constitutional legacy, and that legacy won't be that he helped lawyers become better advocates. His legacy is that he espouses what he believes to be a legal method that's near perfect, and after years of whistling that song in the graveyard, he's ready to shout it from the rooftops.
That said, it's not yet clear to me that Scalia truly trusts the American public to do too much constitutional heavy lifting. He recently told a group of students from Thomas Jefferson High School that he didn't want cameras in the courtroom because the court's work is too "lawyerly" for most of us to comprehend. Still, his willingness to defend his ideas in public against Russert, Stahl, and NPR's Nina Totenberg suggests he's more interested in a dialogue than a monologue.
The problem, for those of us admittedly charmed but decidedly not persuaded by Scalia's argument, is that Scalia has decided to make his case at a moment when there's no one with his charisma offering an opposing view. Justice Scalia's absolute certainty about his own constitutional worldview has benefited over the years from near radio silence from the court's liberal wing. The fuzzy echoes of Brennan's "living constitutionalism"—the notion that the Constitution evolves with social norms—have become too easy for him to parody.
Without a really compelling legal theory from the court's liberals, and with his new willingness to be open and expansive for the cameras, it was virtually guaranteed that once Scalia uncorked his considerable charisma, his constitutional methods would appear to be the most plausible approach, if not the only one. Scalia has mastered the art of persuading by simply being. If that isn't a chapter in his new book, it should be.
A version of this piece appears in this week's Newsweek.
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Remarks from the Fray:
If Thomas's approach to the constitution is 'even more radical,' I guess we are to take it that Scalia is a radical. To a liberal like Lithwick I suppose this is true but others might be skeptical of the claim. Milton Friedman famously self-described his own views - he wanted to upturn what had become the unquestioned status quo in economic theory and return it to the precepts made famous by Adam Smith. In this way I suppose Scalia might be seen as a radical. But only because those around him have made their own radical deformations of the court appear to be a state of nature to liberals....
--joedelrayart
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While Scalia is undoubtedly a radical, at least he didn't perjure himself during his confirmation hearings -- unlike his colleagues Roberts, Alito and Thomas.
Their "say whatever it takes to get confirmed" perjuries during their confirmation hearings should lead to their collective impeachment.
The Federalist Society is an anti-democratic subversive organization dedicated to the misapplication of state power. Judges like Scalia, Roberts, Alito and Thomas have proved that membership should disqualify life-time appointment to the federal judiciary.
--JackHughes
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Fred Friendly used to moderate discussions with law types about constitutional issues that were aired on PBS stations and the like. Scalia took part in some of these discussions, even with the idea of some that judges shouldn't involve themselves with hypos outside of the court room.
He also put up his views of originalism and interpretation to criticism, his earlier book on his matter of interpretation having commentary from a historian, liberal lawyer and so forth, which he then responded to as well. This also is not exactly the same thing as being interviewed by a journalist, but does show a willingness to put his views up to scrutiny.
As to persuasion, Scalia appears so sure of himself that he figures that those who don't accept the obvious truth are boobs not really worth the effort. His friendship with Ginsburg suggests an ability to get past that on some level, but a "do what I say, not what I do" strategy should be part of the book Dahlia discusses here.
His comments in public has received some rightful criticism, but I do commend him for at least voicing them openly. Cf. The secrecy of his pal Cheney and his bunch, secrecy that led to the promotion of various insidious legal doctrines.
--Joe_JP
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I watched Justice Scalia and while I respect him I was not at all charmed by him. He may be a decent man but personally, I think his "dead document" description of the Constitution is cute but dangerous.
The framers of the Constitution could not possibly anticipate the world today. They did an excellent job of writing as broadly as possible but the Constitution still must be interpreted in light of today's society.
No, I'm not at all well versed in what Jefferson or Madison wrote in their private papers about what exactly constituted privacy when they wrote the Constitution. Does it matter? We don't live in 1787, we live in 2008.
Scalia's "originalism" doesn't seem to take into account the changes that have moved the government far from it's original definitions. For instance, what exactly is a militia today? What we call the Guard and the Active Services are no longer what were understood in 1787. How can one apply originalism to a concept that no longer represents what the Constitutional authors understood it to be?
That the other justices still count him as a good friend, even after his insults, speaks to his character. But Adams and Jefferson were good friends too and never embraced each other's politics.
--Adrasteia
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Scalia's position, when consistently applied, is the only one that is worthy of a free people. Liberal, living constitution types, simply don't trust the American people to do the right thing. This nonsense of "evolving standards of decency" is a pure smokescreen. If society's standards had really evolved, then the legislative process would be sufficient to change the law. The fact that judges must force change in the face of majority resistance proves that society's standards have not evolved.
It is the job of judges to protect the actual constitution from being eroded by "evolving standards." You've got enough work to do protecting my real, actual, enumerated rights. Let us worry about whether or not we want to add new ones for you to protect.
--the true conservative
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