The Scalia Myth by Laurence H. Tribe | NYR Daily | The New York Review of Books
***The indeterminacy of Scalia’s methods, as well as the fact that Scalia himself sometimes abandoned their use in cases where they could have cut against the outcome he sensed was right, should particularly remind those responsible for nominating and confirming his successor that brilliant, personally decent, and ethically respectable judges on any side of a complex and controversial issue can quote scripture to their own purposes and, in the rare instances where scripture has nothing to offer, will craft other ways to tip the scales in favor of the results that simply feel right to them. Justice Scalia drew selectively both on his own favored methods and on those of others, often showing a Swiss-cheese-like respect for precedent (following where the logic of precedent led—except when he thought it unwise to do so) to cast real votes on decisions that had real, sometimes enormous, and occasionally tragic human consequences. His successor will likewise have to draw on a broad variety of interpretive tools and will, likewise, in the most significant and controversial cases, ultimately rely—whether expressly or otherwise—on a personal understanding of the values and vision that the Constitution is best understood to embody.
The selection of a justice to serve for life on the nation’s highest court is far too consequential to be treated either as an abstract referendum on legal methodology or as a game to be played for partisan advantage. For literally the first time in American history, the party in control of the Senate is demanding that the president violate his constitutional duty to nominate someone to fill a Supreme Court vacancy. In the process, the Senate is effectively disabling itself from performing its own constitutional duty, its “Advice and Consent” function, thereby undermining the framers’ brilliant design of a government whose separate parts were to check but never prevent one another from performing their assigned missions. The national debate over who should be the next president might in any event include attention to the kind of justice the people want to see fill the currently vacant seat, but that debate will inevitably be far more generalized and lacking in substance if it cannot center around what is revealed by a particular nominee’s background and in that nominee’s responses to probing questions asked in a Senate hearing.
Nothing could more dramatically demonstrate how momentous the choice of a successor to this justice is to the country, and how especially shameful and hypocritical is the Senate’s refusal even to consider anyone nominated by the incumbent president. The pretense behind this unprecedented maneuver is that only the president whom the nation elects this November to succeed President Obama can legitimately reflect the people’s will. Never mind that President Obama was elected in 2008 and reelected in 2012 and still has nearly a year to serve. The claim is that filling the currently vacant seat in ordinary course would unduly politicize the selection process and the Court itself. That is transparently absurd. Whichever president nominates someone to the seat occupied by Justice Scalia, the selection that is made, and the Senate’s vote to confirm or reject that nominee, will reflect a politically legitimate choice about one kind of future rather than another with respect to the powers, responsibilities, and limits of the levels and branches of government and the values government will be permitted, forbidden, or on occasion compelled to preserve. Justice Scalia’s successor will wield enormous influence on the Court’s decisions in years to come on the broadest imaginable range of matters vital to us all: access to court and avoidance of arbitration in civil cases, meaningful access to adequate legal representation in criminal cases, presidential war powers, voting rights, reproductive choice, gay rights and minority inclusion, racial and religious profiling and the separation of church and state, campaign finance and habeas corpus and the future of such extraordinary and deeply debated forms of punishment as solitary confinement, life imprisonment without parole, and the death penalty.
Many of us yearn for the Court to move in a progressive direction and dread a continuation of the rightward drift that Justice Scalia’s three-decade long presence on the Court facilitated. Even if labels like “liberal” and “conservative” are often oversimplifications, it captures more truth than it obscures to say that the Court is currently composed of four liberals (Justices Ginsburg, Breyer, Sotomayor, and Kagan), three conservatives (Chief Justice Roberts, Justice Thomas, and Justice Alito), and one jurist (Justice Kennedy) who leans sometimes in one direction and sometimes the other way. The Court is exquisitely balanced 4-4 on a wider swath of fundamental questions than at any time since the 1930s.
This crucial constitutional moment—this possible turning point in the life of our republic—calls on all of us, across the political spectrum, to drop the pretense that we have nothing in mind but what we deem the theoretically proper judicial methods, come what may, and simultaneously to resist the unfounded claim that only those who applaud right-leaning outcomes while proclaiming strict adherence to text and history can truly claim the mantle of constitutionalists who believe in the rule of law. That mantle instead belongs to those who are most candid about the non-existence of any ironclad “method” that should, or even can, obviate the necessity for human choices about the demands of justice and the meaning of America.
The greatest justices in our history—from John Marshall to Louis D. Brandeis, from Robert H. Jackson to Earl Warren and William O. Douglas and Thurgood Marshall and William J. Brennan, Jr.—have displayed that candor and have thereby helped make the Union stronger, the country better, and our Constitution more enduring and embracing. We should all welcome the opportunity to take part in a national debate over the values and perspectives we want the next justice to bring to the intricate task of interpreting our Constitution and our laws. But if we shut our eyes, ears, and minds to such questions, or reduce them to vague abstractions, as the Senate is now threatening to do, we will leave our nation’s remarkable constitutional system impoverished and our nation’s uncertain destiny imperiled.