Posted by Orin Kerr:
What if It Were Justice Scalia? -- A Response to Commenters:
http://volokh.com/archives/archive_2007_10_21-2007_10_27.shtml#1193341791
There were many interesting comments to my post on [1]Justice Ginsburg
and Legislative Independence. I responded to many of them in the
comment thread late last night, but I wanted to add an additional
response to the many who thought it was perfectly fine for Justice
Ginsburg to use her dissent to try to get Congress to respond by
enacting new legislation more to her liking. In particular, I want to
switch the politics just to make sure we all have the same position of
the merits.
There seemed to be four basic arguments among those who thought
Justice Ginsburg had behaved perfectly properly. First, anyone can try
to influence the legislative process, so it's okay for Justices to try
to do this as well. Second, Justices are smart people "on the front
lines" of the law, so it's good that they are generally interested in
sharing their wisdom to improve it. Third, Justice Ginsburg's remarks
should be read as really just making a comment on the state of the
law, which is something that we generally find unobjectionable.
Fourth, it is appropriate for a Justice to take extra steps to inform
Congress that their will might have been thwarted, just to let them
know so they can take corrective action.
I responded to each of these arguments in depth in the comment
thread, but I wanted to add one more thought experiment into the mix:
What if the politics of the case had been reversed, and it was Justice
Scalia who was engaging in this conduct instead of Justice Ginsburg?
Let's imagine the year is 1987, and the Supreme Court is deciding a
case that is somewhat similar to Ledbetter, [2]Johnson v.
Transportation Agency. In that case, the Santa Clara County government
had enacted an affirmative action plan allowing the government to
provide preferences/affirmative action for women in hiring. A man
challenged the program on the ground that Congress has clearly and
directly stated that " "It shall be an unlawful employment practice
for an employer . . . to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's . . . sex[.]" The Justices
meet at conference and a majority vote to allow the program despite
the plain meaning of the statute. Justice Brennan is the senior-most
Justice in the majority, and he assigns himself the majority opinion.
Now imagine you are Justice Scalia, and you think this decision is a
completely bogus and result-oriented interpretation of the statute.
Congress's statute could not have been clearer, and the Court is
defying Congress's will and trying to gut a very important statute. So
you write a blistering dissent explaining why the majority's
interpretation of the law cannot be squared with what the law actually
says. (And indeed, that is exactly what Justice Scalia did.)
But let's say Justice Scalia decides to do more. Let's imagine that
he decides that he wants to try to "propel" the legislature to pass a
new law banning affirmative action in the workplace. He thinks
carefully about how he can best use his opinion to try to get Congress
to ban affirmative action, and he devises the following plan. First,
he will explicitly call on Congress to ban affirmative action in
response to the Court's decision. Second, he will read his dissent
from the bench to maximize press coverage and draw immediate attention
to his cause.
After the decision is handed down, Justice Scalia follows the
Congressional response with interest. He publicly expresses his
pleasure when Republicans in Congress introduce bills to ban
affirmative action. "That is just what I contemplated when I wrote my
dissent," he tells a sell-out crowd at the annual Federalist Society
convention. But he then notes with apparent displeasure that
Democratic leaders in the Senate have "clouded" the prospects of the
bill by saying that they don't want to bring it to a floor vote.
: I think this hypothetical is pretty much the same as what Justice
Ginsburg is doing, just with the political valance reversed. So let's
return to the defenses of Justice Ginsburg and see if they hold up
with Justice Scalia in the hotseat instead. If Justice Scalia had in
fact taken these steps in response to Brennan's opinion in Johnson,
would we say that Justice Scalia is a smart guy "on the front lines"
of the law, and that we are lucky to benefit from his experience and
learning? Would we say that Scalia's behavior was perfectly okay
because anyone can try to influence the legislative process? Would we
interpret his efforts as being simply to "notify" Congress, just in
case they missed the decision, or that he was simply expressing his
view that affirmative action is a bad idea?
These are questions for each reader to answer. But I suspect many
readers inclined to defend Justice Ginsburg now would share my own
view that the answers would be "no, no, no, and no." Such conduct from
Justice Scalia would be simply outrageous. Scalia's job is to decide
cases, not to try to use his official position to get Congress to pass
laws that he likes. Granted, Justice Scalia is entitled to his own
opinion as to whether affirmative action is good or bad. But I think
it would be deeply troubling if he saw it as within his official role
as a Justice to try to get Congress to pass a new law clearly banning
affirmative action after he didn't have the votes to achieve that
result in the Johnson case.
So here's my question for commenters who defended Justice Ginburg's
efforts: Do you have the same reaction to Justice Scalia's
(hypothetical) efforts to get Congress to overrule Johnson? Or do you
agree with me that such conduct would be quite troubling? If you
support Justice Ginsburg but would oppose the hypothetical Scalia,
what's the principled difference?
References
1. http://volokh.com/posts/1193284491.shtml
2.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=480&invol=616
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