Uncertain justice The Roberts court and the Constitution

IN JULY 1977, a law professor and former official in the Nixon and Ford administrations, Antonin Scalia, joined the editorial board of a new magazine called Regulation. It was decidedly not pro-. Its first issue featured an article in which Scalia expressed his contempt for legislation aimed at the "platitudinous goals of pursuing 'the public interest' or preventing 'sex discrimination.'" The use of quotation marks was revealing. Here was Nino Scalia, 41 years old and already fully formed: scathing, self-confident and profoundly at odds with the premises of late-20th-century American law and life. Today, more than three decades later, Scalia's long-held views on regulation - and much else - are entrenched in the Republican Party and ascendant on the Supreme Court, on which Scalia has sat since 1986. It is not a coincidence that the labels that many detractors apply to the court under Chief Justice John G. Roberts Jr. are the same ones they attach to Scalia: "stuck in the past," "pro-business," "disconnected from the real world." With every new conservative ruling - and there has been a run of them in recent years, on a range of issues from campaign finance to affirmative action, religion in the public sphere to gun control, abortion to voting rights - these characterizations of the Roberts court, like those of Scalia himself, are hardening into settled wisdom on the left. But a pair of new books - one on the constitutional changes wrought by the Roberts court, the other a biography of Scalia, its most garrulous member - question these views while, in important respects, reinforcing them. In "Uncertain Justice," Laurence Tribe, the Harvard Law School professor and a pre-eminent authority on the Constitution, and Joshua Matz, a recent graduate of that school and, beginning this fall, a clerk for Justice Anthony Kennedy, refuse to either "stereotype the justices" or draw the familiar, categorical lines between the court's liberals and conservatives, its Democratic and Republican appointees, its "activists" and apostles of "restraint." Instead, Tribe and Matz set out to portray the Roberts court in what they see as its messy complexity. It is no doubt difficult to write with clarity about uncertainty, but Tribe and Matz largely succeed. Surveying a shifting legal landscape, they offer crisp accounts of key cases, looking especially for "points where debate about the Constitution's meaning is particularly intense, the court is torn about its role, the effects of its decisions remain obscure or the justices' goals seem unclear or contradictory." Privacy law is one such point, and a clear example of the "uncertainty" principle. Doctrines in this area are fluid, rulings tend to be narrowly drawn and alliances among the justices appear unsteady. In NASA v. Nelson, a unanimous 2011 decision upholding federal agencies' broad discretion in conducting background investigations, Scalia's concurrence reads as bitterly as a dissent; he assails Justice Samuel Alito's majority opinion for its propensity to "pontificate upon a matter that is none of its business: the appropriate balance between security and privacy." The court's five conservatives may constitute a bloc, but hardly a monolith; on privacy, as well as on free speech and executive authority, Tribe and Matz identify "schisms" - sometimes deep ones. On most other issues, though, the right-leaning brethren (the court has no right-leaning sistren) seem perfectly in agreement as to where they are going, even if they differ on the route to take or the speed to travel. Nine terms into John Roberts's tenure, it is hard to credibly contend that the conservative justices are, to any real degree, confused or divided about their direction. Yet this is the conceit of "Uncertain Justice," and it will strike many court watchers as strangely off the mark. Tribe and Matz themselves seem less than fully sold on the notion; the defense they offer is, at best, inconsistent. Indeed, their own analysis reveals, across the map, a conservative majority on the march, driving toward deregulation. Consider campaign finance law. The Citizens United ruling of 2010 is still scourge No. 1 to political progressives - Senate Democrats have vowed to vote before year's end to overturn the decision by amending the Constitution - but it now has competition; an ever-extending line of campaign finance cases is "moving us ever closer," as Tribe and Matz write, "to a world in which government is stripped of nearly all power over money in politics." The Roberts court has also signaled, in case after case, its eagerness to roll back regulations of economic activity - from a prescription drug law in Vermont to the financing system for a sewer project in Indiana to the provision for Medicaid expansion in the Affordable Care Act. Though the liberals (joined by Roberts) upheld the constitutionality of the A.C.A. under the taxing power, the dissenters (echoed by Roberts) took the most constrictive view of federal power under the commerce clause in 75 years, since the New Deal-era court got out of the business of overseeing economic policy. Taken together, as Tribe and Matz observe, decisions like these "signal a loosely unified project" - to safeguard "individual economic liberty" against the encroachment of government at any level. In civil rights, in consumer rights, in criminal procedure, long-established protections are falling away and barriers are going up. Tribe and Matz note that numerous "low-profile rulings" are rendering many rights impossible to enforce, leaving prosecutors, police and businesses "freer to act without the checks and balances - and burdens and frustrations - of judicial oversight." The overall picture, it turns out, is quite clear indeed, and "Uncertain Justice," despite its title and stated intent, brings that picture into stark relief. For a former editor of Regulation, these ought to be salad days. Like Justice Harlan Fiske Stone, whose dissenting opinions of the 1930 s came to define the jurisprudence of the 1940s and beyond, Antonin Scalia has stuck around long enough to see many of his dissents become law. But Scalia, one suspects, has little taste for salad. No doubt he takes satisfaction in the sweep and success of the Roberts court's deregu- latory campaign. At the same time, he is a man who has spent most of his years on the court in a state of high moral agitation, and he seems disinclined to dial it down - particularly when the majority offends his deepest beliefs, as it did last year in U.S. v. Windsor, which overturned the Defense of Marriage Act. Though most of the closely divided, consequential cases now find Scalia on the winning side, his life's hero remains Sir Thomas More, Catholic martyr. To Scalia's many admirers on the right, his indignation is part of his appeal. But to Bruce Allen Murphy in "Scalia," the justice's perpetual, apparently uncontrollable rage is his Achilles' heel, limiting - perhaps negating - his leverage on and off the court. Murphy's belief is that Scalia, for all his charisma and intellectual prowess, has rendered himself a "court of one," even when he finds himself in the majority. The author of previous books on William O. Douglas and other justices, Murphy is hardly the first to weigh the costs of Scalia's contentiousness. The Supreme Court reporter Joan Biskupic, in her excellent biography of Scalia, "American Original," along with careful observers like Linda Greenhouse, formerly with The New York Times, and Dahlia Lithwick of Slate, all judge the damage - both to Scalia's reputation and to his influence - to be high indeed. But no one has considered that question as fully as Murphy; "Scalia," in fact, may be the most exhaustive treatment of a sitting justice ever written. Yet as Scalia, who is 78, approaches his 29th term on the court, it does not seem too early to mull his legacy. More than any individual decision or dissent, the theory of "originalism" is likely to be his lasting mark. Scalia did not single-handedly invent it, but he has done more than anyone else to advance it. The idea that judges are supposed to - and actually able to - uncover the "original meaning" of constitutional language is so commonplace among conservatives that it is easy to forget how idiosyncratic it is. Murphy locates its roots in Scalia's upbringing: in the credo of "literalness," a mode of strict textual analysis developed by his father, a scholar of European literature; and in "the literal biblical tradition favored by his faith," a defiantly traditional strain of Catholicism. What these methodologies promise is certitude, which is the argument Scalia makes for originalism: It takes the judgment out of judging. "When I find it - the original meaning of the Constitution - I am handcuffed," he insists. Murphy counters, convincingly, that Scalia finds, in virtually every instance, exactly what he sets out to find. Originalism, in this telling, is a wide-open, subjective affair, and the justice a kind of magpie historian, plucking these bits from the 18th century, those from the 19th, whatever it takes to reach his preordained result. Scalia's majority opinion in District of Columbia v. Heller, the 2008 case declaring - perhaps inventing - an individual right to bear arms for self-defense, is overbrimming with handpicked history, making it, in Murphy's assessment, Scalia's "judicial magnum opus." "Scalia" is a skeptical, often critical look at its subject, but free of snark; it does its readers the service of taking Scalia's ideas seriously. Drawing extensively on the speeches, writings and obiter dicta, Murphy tracks the shifts in Scalia's approach and what differentiates it from those of other textual revanchists, whether Justice Clarence Thomas or the legal scholar Robert Bork. It is unfortunate, then, that "Scalia," like "Uncertain Justice," overcommits to an argument it can't quite sustain - in this case, that Scalia is a "court of one." There's no question that, as Murphy argues, Scalia's relationships on the court have been "undermined by his powerful ego." He has never been able to resist lecturing, hectoring and ritually abusing his fellow justices - often by name - in opinions or from the stump. One of his favorite targets was Sandra Day O'Connor. Her views on abortion were "irrational," Scalia wrote in a concurrence in the 1980s, and "cannot be taken seriously." One by one, Scalia has driven away the moderate justices - O'Connor, Kennedy, David Souter - whose votes might have won him cases and made him a leader. "Nino," Chief Justice William H. Rehnquist once reprimanded him in a note, "you're pissing off Sandra again. Stop it!" Nino can't, as this book makes clear. Even so, it is too much for Murphy to suggest that Scalia, for all his years "singing in the shower" and "alone on his ice floe," has been anything short of supremely influential. In fact, few justices in the past century have exerted a wider influence on the public's understanding of the law and of the role of judges. Even some liberal judges - refusing to grant conservatives sole possession of the founders - have adopted his approach, grounding their opinions in Madison's notes on the Constitutional Convention, "The Federalist Papers" and other historical texts. John Paul Stevens's dissent in Heller, in this way, owed much to originalism. As Scalia told an interviewer last fall: "Originalism is now regarded as a respectable approach to constitutional interpretation. And it really wasn't 20 years ago." He is right about that, and even this understates his impact. Scalia has long been a spokesman not only for a judicial philosophy but for an entire worldview - the querulous conservatism that issues forth from Fox News, the Tea Party and much of the Republican Party. For his first 20 years as a justice, Scalia could be said to be winning by losing. Today, setbacks like Windsor aside, he is just winning. JEFF SHESOL is the author, most recently, of "Supreme Power: Franklin Roosevelt vs. the Supreme Court."