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12/15/2016

Mary Anne Case: Scalia as Procrustes for the Majority, Scalia as Cassandra in Dissent [Updated with Comment]
Michael Ramsey

Mary Anne Case (University of Chicago Law School) has posted Scalia as Procrustes for the Majority, Scalia as Cassandra in Dissent (Forthcoming in Jahrbuch des öffentlichen Rechts der Gegenwart 2016) on SSRN.  Here is the abstract:      

Using Greek myth to illuminate some of the late Justice Scalia's rhetorical moves, this essay argues that as an author of majority opinions Scalia was often Procrustes, leaving no case behind but forcing all prior doctrine into the shape he needed for the new law of rules he was announcing. In dissent, by contrast, Scalia could be Cassandra: describing what for him are the drastic consequences he foresees from the majority’s logic, he often paints a prophetic picture which in time comes true, perhaps in part because of rather than in spite of his horrified articulation of an opinion’s implications. While the progression of gay rights cases from Romer through Obergefell is the clearest and most sustained example of Scalia as Cassandra, his procrustean majority opinions include Employment Division v. Smith. For each of these cases, the essay examines the structure and unintended consequences of Scalia's approach.

Scalia's own procrustean moves as a federal judge are in some tension with his criticism of similar behavior by non-common law judges in his 1995 Tanner Lectures on Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws. The essay explores whether some of that tension might be reduced by focusing on the fact that Scalia's most procrustean moves come in cases involving the incorporated bill of rights, for which he sees no textual warrant and therefore is of necessity acting as a common law judge, without access to a civil-law-style alternative to the methodologies of the common law.

(Thanks to Michael Perry for the pointer).

The essay makes some fair criticisms, but I think it errs (or at least overstates) on the point made in the second paragraph of the abstract (pp. 8-9 of the essay) -- that Scalia "s[aw] no textual warrant" for "the incorporated bill of rights."  The essay's only cite for this proposition is McDonald v. Chicago, in which Scalia reluctantly acquiesced in the use of the due process clause as the basis for incorporation on the basis of precedent.  I don't think, though, that this proves Scalia rejected incorporation as an original matter -- only that he rejected the due process clause as its basis.  So far as I know, Scalia never directly gave his view on incorporation via the privileges or immunities clause.  True, in McDonald he refused to join Justice Thomas' opinion, which argued for shifting the basis of incorporation from the due process clause to the privileges or immunities clause.  But as Scalia expressly wrote in concurrence, he was reluctant to overturn precedent (and create further uncertainties) on this point.

To the contrary, I speculate that the reason Scalia was generally comfortable with an aggressive application of the bill of rights to the states (not just in McDonald, but in free speech, takings, search and seizure, confrontation clause and trial by jury) lay in his (unexpressed) conclusion that the privileges or immunities clause was a satisfactory textual basis.

UPDATE:  William Baude comments:

I was interested in your recent post on Scalia and incorporation. Since I think that the original meaning of the 14th Amendment did incorporate the bill of rights, I would love it if Justice Scalia agreed. But I worry he didn't.

I haven't researched this fully, but I've seen several reports of Justice Scalia giving remarks criticizing  incorporation as a matter of first principles, even if he accepted it as a matter of stare decisis. For instance:

Speaking just [in February 2009] at the Hoover Institution, Scalia argued (approx. 24:20) that the doctrine of “incorporation,” which holds that the Bill of Rights applies to state governments via the Fourteenth Amendment, is a “mistake” and is “probably false.” 

http://theusconstitution.org/text-history/1391

See also http://www.firstamendmentcenter.org/justices-remarks-prompt-a-review-of-first-amendment-interpretation

But as I say, I'd love to be wrong about this!