The left has lately been in a panic at the realization that President Donald Trump has so many vacancies to fill on the federal bench, a panic hardly abated by conservative proposals to add a lot more seats. The fear, as one of my Yale colleagues puts it, is that Trump will appoint lots of “little Scalias” — a reference to Justice Antonin Scalia, who died in 2016 and was succeeded on the Supreme Court this year by Neil Gorsuch.
I’m no fan of court-packing, and I’ve long believed that our method for selecting federal judges is absurd. But it’s the method we have, and elections, as they say, have consequences; one of them is that the president gets to nominate lots of judges. (I’m old enough to remember when this was a good thing.) So if a horde of little Scalias indeed looms on the horizon, it might be useful to consider exactly what so curious a creature is.
Let’s dispense with the somewhat illiberal reduction of potential jurists to their rulings, the notion that a good judge is a judge who agrees with my side. I’m not suggesting that it makes no difference how cases are decided. But far more important in selecting the members of the third branch should be the quality of the judge’s mind. How does the potential judge reason? What principles would the nominee apply, and why?
Ah, but how do we get to know a judge’s mind, other than by examining concrete results? In Scalia’s case, we can peruse “Scalia Speaks,” the recently published volume of the late justice’s speeches collated by his son Christopher J. Scalia and his former law clerk Edward Whelan. The book is a fascinating look into the thinking of the most influential justice of recent times.
Scalia was a great believer in writing clearly — an ability every jurist should possess. So much of what nowadays passes for judicial reasoning is shapeless and obscure; many an opinion lauded by partisans on one side or the other is, analytically, a hopeless mess. In accepting the lifetime achievement award from the American Society of Legal Writers, Scalia explains, correctly, that the most important ingredients of good writing are “time and sweat.”
Exactly. Disagree with Scalia if you like, but his opinions always sparkle. So do the speeches collected here. Brilliance and erudition leap from the pages, and it’s easy to see why Scalia, agree with him or not, will likely go down in history as one the greats. We meet Scalia the philosopher, Scalia the humorist, Scalia the devout Catholic. Just as important, we meet a jurist who is able to state his philosophy with clarity and verve.
Scalia valued a form of judicial reasoning tied to what seemed to him the concrete moorings of text and history and precedent. Although such methodology is popularly derided, most judges at least pay it lip service. Indeed, a respect for all three is a prescriptive norm of judging. A nominee who announced an intention to ignore all three and follow the latest intellectual fashion would be laughed out of the Senate.
Is constitutional reasoning different? Most scholars today would say yes, but Scalia famously said no. Several times in the speeches included in the book, he criticizes colleagues who believe that their role is to write contemporary moral standards into constitutional law. But that’s not what Scalia believes the judge who finds the law immoral should do: “His proper course is to resign from the bench, and perhaps lead a revolution.”
As he tells us in another speech, there’s reason to doubt that we’re morally better than the Founders, given “the twentieth century’s evidence of concentration camps and gas ovens in one of the most advanced and civilized nations of the world.” (This is one reason that he so highly values “moral formation” — instruction of the young in absolute standards of right and wrong.) A constitution, he argues, lays out rights specifically “out of a fear that they will be disregarded by a less enlightened or less virtuous future generation.” Besides, the ratchet might turn both ways: once the document is decreed to evolve, a court “can take away old rights as well as create new ones.”
Many of course will disagree with this argument; what’s important in that case is to meet it not with polemic but with counterargument that’s every bit as clear and sharp and principled. Otherwise judging becomes nothing but the continuation of politics by other means; at which point there’s a lot less reason to pay attention to what judges say.
This, perhaps, is what Scalia had in mind when he wrote: “A living Constitution designed by the Court will mean a court controlled by the people.” In a sense, that’s the same warning being sounded by those who fear that the little Scalias are about to take over. Just now, at least, the left shares Scalia’s concern that the passions of a political moment should not pollute the great principles for which the Constitution stands. And that’s a good thing, because Scalia was right.
Liberal presidents should not be trying to fill the courts with little lefties, and conservative presidents should not be trying to fill the courts with little righties. Rather, both should be seeking jurists who care about craft and principle, whose reasoning is sharp and transparent, and whose sense of history and process never allows them to forget the norms of their profession. They should, in short, be searching for little Scalias.
Stephen L. Carter is a Bloomberg View columnist. He is a professor of law at Yale University and was a clerk to US Supreme Court Justice Thurgood Marshall.