Smirking Scalia

Danny Adkison, Editorialist

June 29, 2008 12:17 am

— If you asked constitutional scholars who the most liberal justice on the U.S. Supreme Court is you would probably find all of them answering Justice Stevens. Most non-experts on the court, if they paid any attention at all to the court’s decisions, would give the same answer. How odd, then, that on the court’s last day, Stevens, while addressing those sitting in the courtroom, begged his conservative colleagues to exercise judicial restraint.
In 46 pages of dissent (out of a 64-page opinion) Stevens ended with this admonition: “It is, however, clear to me that adherence to a policy of judicial restraint would be far wiser than the bold decision announced today.”
Conventional wisdom has it that being a liberal justice means exercising judicial activism; likewise, being a conservative justice means exercising judicial restraint. All of that went down the rabbit hole Thursday when Justices Scalia, Thomas, Roberts and Alito (the court’s known conservatives) were joined by Justice Kennedy (the court’s “swing vote”) in overturning nearly 70 years of precedent concerning the Second Amendment’s right to keep and bear arms.
Scalia’s majority stated that the Second Amendment didn’t mean what the court said it meant in the 1939 Miller decision. That case had, as Stevens noted, been used by “hundreds of judges” to rule that the Second Amendment’s right was inextricably tied to a state’s need for a well-regulated militia. It did not, according to that interpretation, mean that individuals had a right to own a gun. All of that changed on the court’s last day.
Scalia, writing for a majority of five, wrote that the Second Amendment now was being interpreted to “guarantee the individual right to possess and carry weapons.” What had changed? What had produced a new view of the Second Amendment compared with the view given in 1939? That’s easy — the justices had changed, and with it their manner of interpreting the Constitution.
In the end, Scalia failed to historically demonstrate that the court got it wrong in 1939. Scalia has developed a kind of legal rope-a-dope. He is much more comfortable responding to the “blows” of those who disagree with him than he is seeking to persuade them. That is why he devoted so much of his opinion to attacking the dissenting views of Stevens and Breyer. Nearly half of the paragraphs found in his majority opinion refer to the dissenters’ arguments.
Scalia did the same thing the day before the Second Amendment case in a Sixth Amendment “right to confront” case. He wrote the opinion in that case and stated that in spite of the fact that a man killed his primary witness (he shot her six times), her incriminating comments could not be used in court against him.
He ruled this way in spite of traditional exceptions to the “right to confront” requirement which allow such testimony (even though the witness cannot be cross-examined). The Washington Post quoted a distinguished law professor who noted that this case was going to cause a tidal wave of lawsuits (since it is not that uncommon for criminals to want to eliminate evidence of their guilt, including those who can testify against them).
Scalia, himself, all but admitted the same thing would happen with the Second Amendment ruling. He writes, “But since this case represents this court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field — there will be time enough to expound upon the historical justifications — for those exceptions (which) come before us.” Aren’t conservative justices supposed to be seeking to limit litigation instead of encouraging it?
Finally, a personal observation. Sitting in the Supreme Court chamber for the last two days of its 2007 term, I was struck with the degree to which it seemed the court’s leader was not Chief Justice Roberts, but Scalia. Most court analysts know that Scalia wanted to be chief justice. It would appear, for now, that the chief justice is content to let Scalia take the role of the court’s leader. Normally, since Scalia is considered to be ideologically conservative, that would mean the court would exercise restraint in the decisions it faces next term.
Yet, the final days of the court demonstrated that conservative justices can be just as judicially active as liberals. As the elder Stevens read his dissent in the Second Amendment case to those in the courtroom, Scalia sat quietly with just the chief justice between the two. While most of the justices sat expressionless or appeared stoic, Scalia sat with a smirk on his face as if to say, you may have the best argument, be we now have the votes.
Dr. Danny M. Adkison teaches constitutional law at Oklahoma State University.