Justice Scalia wasn’t just immoral—he was philosophically confused

This post was contributed by Rob Singh, Professor of Politics at Birkbeck. Prof Singh’s new book, ‘After Obama: Renewing American Leadership, Restoring Global Order’ will be published by Cambridge University Press in May.

This aticle was originally published in Prospect on 16 February.

With the death of Justice Antonin Scalia on 13th February, the United States Supreme Court became a central issue in the raucous 2016 presidential campaign. While President Obama has stated his intent to nominate the next justice, Senate Majority Leader Mitch McConnell has argued that Scalia should not be replaced until after the presidential election — and nominees must be confirmed by the currently Republican-held Senate. These competing claims show how the Court now reflects and reinforces the broader partisan polarisation in Washington.

Antonin Scalia Official SCOTUS Portrait crop

Justice Antonin Scalia (By Steve Petteway, photographer, Supreme Court of the United States[1] (See [2]) [Public domain], via Wikimedia Commons)

On decisions from gun control to campaign finance, the court over the last decade has pursued an outspokenly conservative agenda. But other key rulings—such as upholding the Affordable Care Act and the right to same sex marriage—have also grievously disappointed traditionalists. With the remaining eight justices now split between four progressives and four conservatives, Scalia’s replacement could potentially reshape constitutional law for years to come.

A man of acerbic wit and often scathing venom, Scalia developed an approach to constitutional interpretation—originalism—that many found coherent and compelling (a whole book, Scalia Dissents, was even dedicated to his disagreements with prevailing opinion). In a democracy, how can a Court legitimately strike down the laws passed by the Congress and signed by the president? Originalism offered a simple solution: rather than consider what the writers of laws, or of particular constitutional clauses, intended the law to mean, judges should instead interpret these in terms of how the text was commonly understood at the time it was adopted. That adherence to the values of others seemed to limit the dangers of judges writing their own views into law. It had the happily convenient benefit, to Scalia, of also yielding reliably conservative policy outcomes. But three problems plagued the path Scalia paved, which he never convincingly resolved.

First, the practical outcomes of Scalia’s philosophy are widely regarded as repugnant to contemporary moral values. Take Maryland v Craig (1990), where the Court upheld a state law allowing a victim of child sex abuse to testify over CCTV rather than in court, in the presence of her abuser. Scalia dissented, arguing that the Sixth Amendment provides that in “all criminal prosecutions the accused shall enjoy the right… to be confronted with the witnesses against him.”

The only things that had changed since 1791, he argued, were society’s “so-called sensitivity to psychic trauma” and the judgment of where the proper balance lay between assuring conviction of child abusers and acquittal of those falsely accused of abuse. At the same time, in supporting states’ rights to enact statutes rooted in “moral disapproval,” Scalia opposed striking down laws criminalising gay sex in 2003. Relying on “tradition” and popular sentiment to thwart progress, he selectively transformed the Bill of Rights from a safeguard against majoritarianism into another expression of it.

But beyond specific rulings was a second, broader problem. Central to Scalia’s judicial philosophy was an inherent contradiction: would the original framers of the Constitution whom he so venerated have prescribed an originalist approach? Compelling evidence suggests otherwise. Not only is the language of the document notoriously ambiguous and vague, deliberately open to competing and evolving interpretations, but the Framers expressly rejected freezing the fledgling republic in the conditions of 1787. Iconic figures such as Thomas Jefferson even expected new generations to rewrite the Constitution anew.

Thirdly, in decisions such as that made in court case The District of Columbia v. Dick Heller (2008) (which was presided over by the Supreme Court of the United States, and thus Scalia) the Court hardly exemplified a conservative role; for the first time in American history an individualist reading of the Second Amendment was announced. It was ruled that an individual is entitled to carry a firearm for private purposes, such as self-defence, and that the Amendment doesn’t just apply to the rights of groups such as militias. The result of this ruling was a litigation bonanza centred on exactly what gun regulations offend a citizen’s right to own firearms. But if the US survived more than two centuries without the 2nd Amendment ever conferring such a right, when did this change, and why?

Originalists used to criticise the Court’s progressive rulings of the 1960s and 1970s, when the liberal Justices exercised “raw judicial power” by “inventing” new constitutional rights that weren’t explicitly in the Constitution. Now, the same charge can be levelled at the conservatives, whose recent embrace of judicial activism often appears less philosophical rationale than political rationalisation.

Read the original article in Prospect

Read the original article in Prospect

To be fair, Scalia did frequently abide by his own strictures to act as a judge rather than a legislator, not least on First Amendment cases such as flag desecration, where his reading of free expression trumped his affront at unpatriotic acts such as burning the Stars and Stripes. But it is difficult to disassociate his embrace of originalism from his finding in its cold but confused logic a way to oppose every progressive advance from reproductive rights to affirmative action.

George W Bush declined the opportunity to elevate Scalia to the Chief Justiceship in 2005, but Republican presidential candidates have already solemnly avowed to appoint “another Scalia” to the Court, should they be sworn into office in 2017. The chances of that are increasingly slim. With the Court’s future direction now a key issue in the presidential election, several vulnerable Republican Senators facing uphill battles for re-election in swing states such as Wisconsin and Illinois, and the Grand Old Party likely to seem nakedly partisan in obstructing a new Obama judicial nominee from even coming to a vote, Scalia seems likely to remain a magnet for controversy in death as well as life.

It would be mildly ironic if Scalia’s passing, and controversial legacy, hamper the prospect of a more conservative direction in constitutional law by helping to energise the Democratic Party base and costing the GOP the White House and/or the Senate.  And even more ironic that the remainder of this year’s contentious argument over the Court will itself test the proposition of whether a Constitution designed in and for the 18th century is still fit for purpose in the 21st, or more resembles a noble piece of paper housed in the National Archives.

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YouTube justice UK style

This post was contributed by Professor Leslie Moran, of Birkbeck’s School of Law and Barbara Villez, Visiting Fellow at Birkbeck Institute for the Humanities, Professor Université Paris 8

The UK Supreme Court has launched a new communications initiative.  As of late January 2013 you can watch, on demand, videos of judges in the highest court in the land delivering summaries of their judgments. Who is the audience for these five minute programmes? Is it the hard pressed smart phone/iPad generation law student, lawyer or legal advisor? No; far from it.  The Court’s press release announcing the launch of the YouTube initiative suggests the target audience is much wider. Lord Neuberger, President of the Supreme Court, is quoted expressing his hope that the videos will broaden the audience for the Court’s work. Are they the next hot internet viral sensation educating the public about the work of the highest court in the land? The short answer is ‘no way’. Are these videos a ‘must watch’ offering valuable insights into the decisions of the court? We have our doubts about that too. But they do make fascinating viewing.

The visual challenge of judicial activity

Judicial activity has been described as ‘visually challenging’. These videos do much to confirm this and do little to meet that challenge. Five minutes watching someone with their head down reading out loud from a set of papers is not great telly by any stretch of the imagination. The way the images are put together adds to this static quality, with each video being made up of two basic types of shot. Throughout, the camera’s presence is unacknowledged by the speaking figure.

There is little in the way of props or costume to attract the eye. Judges in the UK Supreme Court don’t wear special robes in court. These judges look very much like ordinary business men. There is only one female judge, Lady Hale. In contrast to this there is much to distract the ear. The microphones, built into the judicial bench, not only pick up the voice of the judge but also the endless rustle of their papers.  Coughing and other background noises regularly punctuate the proceedings. All tend to obscure the words spoken by the judge.

Adaptation from written texts

What are you going to get out of watching the highest judges in the land reading out loud? The judges, so they tell us in the videos, are ‘giving the judgement of the Court’.  But law students and other diligent viewers beware; ‘giving the judgement of the Court’ is not the actual opinion of the court. What you actually get is an image of a judge delivering a speech adapted from a press summary published on the Court’s website to accompany the judgement itself. Written initially by the judicial assistants, the judges approve these summaries and then adapt them for the ‘live’ presentation in Court. The judgment is a written text. And it is written to be read, not spoken. It is available on the Court’s website, as is the accompanying press summary.

As the videos show, the adaptation of the press summaries into scripts for a courtroom performance is problematic. Despite the rearrangements, these scripts are not easy to speak. Judges stumble over the dense text and struggle to incorporate quotations from the trial judge into oral delivery.

The videos do, however, have much to offer. You not only hear the voice of the judge but also the accent which is a marker of their social class. The folding and refolding hands of a courtroom assistant on screen behind the talking head of the judge add an unexpected physical ‘commentary’.

Television trivia?

But are many of these points indicative of the dangers of putting courts and judges on TV? Are we in danger of getting caught up in what some describe as the trivia of the moving image? Our first response is that image making and image management are central to judicial authority. As the 2008 Judicial Studies Board, Framework of Judicial Abilities and Qualities reiterates time and time again, all the core judicial abilities and skills have to be ‘demonstrated’ and communication is central to this demonstration of authority. The courtroom is one long established context in which these abilities and skills have been performed and communicated. Props, wardrobe, voice and the body all have a role to play in demonstrating and communicating judicial abilities and qualities. Video is a new communication format, context and set of challenges. It has characteristics similar to and different from both face to face courtroom encounters and the more formal and enduring qualities of the text of a written judgment.

The current YouTube videos are a return to primitive television. They are simply the result of the presence of the camera in the court. The camera appears to be no more than a tool that records an event. However as the simple editing shows, the record is subject to a degree of manipulation. The resulting image is not just mediated by the technology but has been subject to judicial control. If essential information about the judgement, the press summary and the full judgement are already available what extra is provided by these judicially approved moving images? It may well be just that there is a camera in court and that camera is a symbol of openness, transparency and a form of accountability.

But is that going to satisfy a public that lives in a culture saturated with sophisticated video imagery.  One problem with them may well be that the public is too sophisticated for primitive television. Viewers have expectations acquired from countless hours of watching complex moving images, generating high levels of visual literacy. The primitive visual aesthetics of the UK Supreme court’s YouTube videos are likely to be a real turn off. If the judges of the UK Supreme Court are going to use video available via the Internet as a means of communicating, then they may have to think harder about the moving image that it is being made and adopt a different approach to the use of the moving image as a means of communication.

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