Wednesday, November 05, 2003

Justice Scalia - the Infant Terrible of the US Supreme Court?

Justice Scalia - the Infant Terrible of the US Supreme Court?

Via the Curmudgeonly Clerk and Crooked Timber, we are directed to a Slate article by Dahlia Lithwick at Scaliapalooza - The Supreme Court's pocket Jeremiah. The article has some very strong opinions on the personal behavior of US Supreme Court Justice Antonin Scalia.

Everyone has to Play by the Rules - Particularly Justices

I myself am ambivalent about Justice Scalia's person - he has to decide himself how he thinks that a Supreme Court Justice should behave - if he acts improperly, the world about him and his peers will always exert their pound of flesh for his improprieties - articles such as those by Lithwick are one price you have to pay.

Of course, once you rise to a high position in society, you have little choice but to play by the rules, or you pay the consequences down the road. After all, a judge makes his living by requiring OTHERS to play by the rules - that is his profession, so he has no choice but to temper his own behavior to serve as a model for those who must abide by his dictates. Judges who show no respect for the law, and this means the opinions handed down by their predecessors, can hardly expect anyone to show respect for THEIR legal opinions, can they?

Judge Learned Hand - Herbert Packer - Gerald Gunther

During my student days, when I was the student assistant for Herbert Packer at Stanford Law School, my first task was to devise a system of organization for the private collection of papers of Judge Billings Learned Hand, which had been entrusted to Packer for research purposes. (This collection later went to the late Professor Gerald Gunther after Packer's untimely death, and resulted in a book Gunther published by the Harvard University Press entitled Learned Hand: The Man and the Judge.)

I recall one handwritten note made by Judge Learned Hand to his colleague Judge Clark on the 2nd Circuit Court of Appeals - it was a custom of the 2nd Circuit to exchange written memos on cases being decided - which went something like this (I paraphrase since I no longer have the original text): "You probably wonder why I spend all of this time dealing with the precedents of former cases, weighing and sifting, even though we have decided to overrule these precedents in the instant case. This is of eminent importance, but you will never learn this from me, never from me!" It was an exasperated Learned Hand who apparently was trying to get his fellow judge to understand that respect had to be paid to the case law that was in force prior to their decision, but he was apparently making little headway with Judge Clark.

Even a Justice is but a Cog in the Wheel

On this score, I am afraid that Justice Scalia might be the subject of the same wrath of Judge Learned Hand, and rightly so, for the reasons given above. What Justice Scalia or for that matter ANY Justice of the Supreme Court thinks as a judge is only one small cog in the giant wheel of American jurisprudence that has been turning long before these Justices and will turn long after them. So no Justice should overestimate his own importance on the continuous spectrum of the American legal system. He or she, as we all, has a JOB to do.

Liberty Lies in the Hearts of Men - not in Law Cases

In this regard, one of my favorite quotes from Judge Learned Hand is this, from the Yale Alumni Magazine on June 6, 1941:
"I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women, when it dies there, no constitution, no law, no court can save it; no constitution, no court, no law can even do much to help it.

While it lies there it needs no constitution, no law, no court to save it..."
One of my great concerns about America and the world is precisely this "liberty" in the hearts of men. In America itself, many god-fearing men and women, nothing wrong with being god-fearing, have however lost this "liberty in their hearts" and want to force THEIR religion upon others - upon the children of others through the force of "Under God" in the Pledge of Allegiance, upon their brethren by placing Biblical monuments such as the Ten Commandments in government places. On the other side of the world, other men and women, who have also lost this "liberty in their hearts" want to force THEIR religion upon the rest of world by terror. I have nothing in common with this type of religious tyrrany. This not the "liberty in the hearts of men" which makes great nations - rather, the forcing of YOUR religion upon others is merely fascism in disguise, and nothing more.

We must recall that America was founded by religious groups who left England so that they could practice religion the way THEY wanted to practice it, and not the way someone else told them to do it. It is something we should not forget. When foreign religions threaten our own religious freedoms, these religions should expect to be destroyed, without shedding a tear. But we should not threaten our own religious freedoms ourselves.

Oral Argument and Verbal Brow-Beating

In closing, I note that Lithwick in her article as cited above, makes the following observation about Justice Scalia: "There is a didactic quality to Scalia's performance on the bench--a sense in which he uses oral argument merely to lecture and browbeat his brethren--that is hard to escape."

But of course, this merely confirms what I wrote previously about questions raised by judges in oral argument as a method of either verbal attack (on those disfavored) or verbal assistance (to those favored ).

What is a Supreme Court Justice's Job?

If I may offer a comment generally: some Justices may think that their JOB is merely to decide cases - but this of course would be false. Sometimes, it is not even that important what decision is made - but it has to be made in accordance with the principle of the rule of law. Throughout the history of mankind, "judges" have been the last repository of civilization and reason - we merely have to look in the Bible for periods when "Judges" had to rule, because the rulers and/or the people they ruled had lost their reasoned senses. Hence, "all judges" including the Supreme Court Justices are subject to a higher standard of behavior than any other branch of government - and this is something which should be apparent in their personal acts and demeanor. Either this, or they are in the wrong job.

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