In Jeffrey Toobin's recent profile of Justice John Paul Stevens, he recounts a case in which Justice Antonin Scalia went after Stevens with a fury:
Scalia wrote as a “needed response to Justice Stevens's separate opinion.” He criticized Stevens's assertions about the death penalty, but it was Stevens's invocation of his own “experience” that really outraged Scalia. “Purer expression cannot be found of the principle of rule by judicial fiat. In the face of Justice Stevens's experience, the experience of all others is, it appears, of little consequence,” Scalia wrote, adding, “It is Justice Stevens's experience that reigns over all.”
Scalia's mockery gets to the heart of his critique of Stevens's jurisprudence—that his variability simply amounts to a judge's whim. “That flexibility and malleability that Stevens talks about is really just a license for a judge to reach any result he wants,” M. Edward Whelan III, a former Scalia clerk who runs the conservative Ethics and Public Policy Center, said. “Scalia believes in rules.” According to Calabresi, “Stevens gives judges too much freewheeling power, and that’s not the way our system was supposed to work and not the way it works the best.”
The fight over Sonia Sotomayor's confirmation was bitter in large part because questions of race were intertwined with fundamental differences of opinion between liberals and conservatives over the nature of judging. That's not surprising because so much of America's racial turmoil has been hashed out through the courts. Sotomayor's invocation of her experience as a Latina woman rankled conservatives, who want you to believe that there's an objective way to read the law that isn't colored by personal experience. This is why conservatives believe that the rulings they like are legitimate and the ones they don't are "judicial activism." The easy response of course, is that one couldn't imagine black judges ruling the way white judges did in a case like Plessy v. Fergueson.
While the argument isn't settled, it's plain that Sotomayor and Stevens are right that personal experience affects the way a judge rules, and that denying this, as Scalia would prefer, wouldn't prevent the kind of judicial tyranny Scalia thinks he's avoiding by telling everyone he's focused on the "Founder's intent." For example, in one recent First Amendment case, Scalia suggested that Christian crosses are appropriate memorials to the dead of other faiths:
"I don't think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that's an outrageous conclusion," Scalia said, clearly irritated by the exchange.
As the attorney in the exchange pointed out, It's patently obvious from the fact that people of other religions don't put crosses in their cemeteries that crosses are not universal symbols honoring the dead. They are Christian symbols that, in this case, honor dead Christians. Scalia is a Christian and obviously can't imagine it done any other way.
My ouija board skills aren't that great so I won't pretend to know what the "Founder's intent" was, but the Founders "intended" someone of my background to be property even as the ideas that underpin the Bill of Rights would suggest the opposite conclusion. Still, it's pretty clear that Scalia, for all his distaste of Stevens' invoking his "experience" in his opinions, does exactly the same thing. Except he and his supporters deny that he does it, which makes the danger that Scalia's reading of the law will be a matter of "whim" that much more likely. As long as those whims are right leaning, they're fine with it.
-- A. Serwer
