Justice Scalia, who passed away a year ago last month, would have been 81 yesterday. Re-reading a number of his opinions while doing some research yesterday – Morrison v. Olson and United States v. Santos being among the best that I was reviewing – I was reminded again of how compelling his writing was. More importantly, I was reminded of how he strived, however imperfectly, to be an evenhanded jurist who followed the law where it led him, even if he disagreed with the outcomes. And most important of all, I was reminded how forceful a defender of the Rule of Law he was, a concept under assault in his day and ours alike from cynics who contend that law is really just politics by another name.†
This last point led me to a lecture he gave shortly after joining the Court, titled The Rule of Law as a Law of Rules.* In this lecture, Justice Scalia explored the dichotomy between “general rule of law,” on the one hand, and “personal discretion to do justice,” on the other. Reading through it, one is reminded of just how much of an impact he had on the Supreme Court and the rule of law. Compare a Scalia opinion to a Warren Court decision, and it is easy to spot the radically different perspective he brought to the Court, a perspective to which he slowly moved the Court over his nearly three-decade tenure thereon. This short talk neatly encapsulates his perspective.
He opened by contrasting the legendary accounts of Louis IX “dispensing justice case-by-case” with the words of Thomas Paine in Common Sense, wherein he stated that “as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other.” Judges empowered to make law – as in common law legal systems such as our own – could view their role as either of these extremes or somewhere in between. In each case, judges have a choice as to the nature of their reasoning, with significant consequences in light of the fact that “not merely the outcome of th[eir] decision, but the mode of analysis that it applies will thereafter be followed by the lower courts within that system, and even by that supreme court itself.” Accordingly, “by making the mode of analysis relatively principled or relatively fact-specific, the courts can either establish general rules or leave ample discretion for the future.”
Both approaches have their respective merits. The discretion-conferring approach to adjudication is understandable given that “[a]ll generalizations . . . are to some degree invalid,” as “every rule of law has a few corners that do not quite fit.” This approach – one where judges “stick close to th[e] facts, not relying upon overarching generalizations, and thereby leav[e] room for future judges” – “is thought to be the genius of the common law system.”
Justice Scalia admitted that this approach is appealing. But then he stated that over the years he “found [him]self drawn more and more to the opposite view.” Among the reasons he mentioned:
1) the importance of “the appearance of equal treatment” that general rules provide which case-by-case adjudication does not;
2) the need for a uniform legal system, which cannot exist in a system with an elaborate, two-track (state and federal), multi-tiered (three in the federal judiciary; anywhere from three to five in the state-court schemes), hierarchical judiciary in which “totality of the circumstances” is the guiding principle;
3) the centrality of predictability to rule of law, which is much harder to achieve with balancing tests than with a generally applicable, bright-line rule of decision;
4) the restraint that clear rules place on judges, which the narrow-decisions approach appears to impose on judges but which in reality does not, as each case can come out however the judge desires since the last case is easily distinguishable/limited to its facts, whereas “by announcing rules . . . we hedge ourselves in”; and
5) the dilemma of the so-called “countermajoritarian difficulty,” which means that judges must frequently decide cases contrary to the popular will, something much easier to do “behind the solid shield of a firm, clear principle enunciated in earlier cases” than it is when the “test” is “on balance” or “the totality of the circumstances.”
He identified other problems with what he elsewhere called “th’ol’ ‘totality of the circumstances’ test.”º When applying this amorphous “test,” appellate judges are really doing little more than fact-finding, which in most areas of law is something committed to juries, not judges, and which usually means there is no “right” answer – a notion contrary to the idea of rule of law as a system of fixed norms by which people can orient their behavior.
An example might help: in tort law, the conceptual standard of the “reasonable person” is frequently used as the metric by which conduct is judged and liability is determined. This is precisely the sort of question that judges instruct juries to answer, both because the concept of “reasonableness” is one of social construction and because application of the concept (i.e., what would a reasonable person do) varies from fact-specific situation to fact-specific situation. Contrarily, the concept of what is a “reasonable” or “unreasonable” search under the Fourth Amendment is not submitted to juries but is decided by judges. Justice Scalia admits that he “do[e]s not know why we treat some of these questions as matters of fact” to be decided by juries “and others as matters of law” to be decided by judges, but he suggests some likely reasons. Most compelling to me is the idea that he only suggests in passing, to wit, that the former is by-and-large of necessity a question for juries to decide given that it is purposefully a variable, fact-intensive, context-specific inquiry, whereas the latter is by-and-large of necessity a question for judges to decide given the importance of having a consistent rule with respect to written, codified, and/or duly enacted law.¹
Quoting Aristotle, Justice Scalia felt that “personal rule” – i.e., what occurs when judges apply “th’ol ‘totality of the circumstances’ test” to matters that come before them – “should be sovereign only in those matters on which law is unable, owing to the difficulty of framing general rules for all contingencies, to make an exact pronouncement.” It is in most instances contrary to “the essence of the judicial craft” to adopt a case-by-case approach in a system such as our own, which is largely built on written laws that judges are to interpret and give “precise, principled content” to. While it may be objected that “reduction of vague congressional commands into rules that are less than a perfect fit” works “a frustration of legislative intent,” Justice Scalia replied that this is really no objection at all “because that is what courts have traditionally done, and hence what Congress anticipates when it legislates.”
Justice Scalia then fit in a defense of both textualism and originalism on these grounds. In both cases, judges are constrained to apply the written law as understood by way of objective tools that shed light on the meaning of ambiguous texts. While not providing answers to every question – e.g., it is hard to ascertain whether the Fourth Amendment in 1791 or 1868 would have prohibited police from flying a drone outside your house 24/7 to track your movements in and out for a full year, even though most people would feel that was incredibly invasive and thus a “search” – these two interpretive methodologies can provide fixed, specific answers to most questions that arise in the application of constitutional provisions and statutes.
Towards the end, he made clear, in Scalia-like fashion, that he does not reject all “factors” or “balancing” tests, but simply that he believed that judges should only resort to them when general rules, which better foster rule of law values, were impossible to apply:
I have not said that legal determinations that do not reflect a general rule can be entirely avoided. We will have totality of the circumstances tests and balancing modes of analysis with us forever – and for my sins, I will probably write some of the opinions that use them. All I urge is that those modes of analysis be avoided where possible; that the Rule of law, the law of rules, be extended as far as the nature of the question allows . . . .
As Ted Olson – former Solicitor General who regularly appeared before Justice Scalia and, fittingly, the protagonist behind the case giving rise to one of Justice Scalia’s most famous written opinions² – said elsewhere, “The wall between the rule of law and anarchy is fragile; if it is penetrated, freedom, property and liberty cannot long endure.”³ Justice Scalia advocated a high and fortified wall between these two opposing forces, knowing that liberty and justice were only secure when the law was perceived as impartial, generally applicable, and evenhandedly enforced. Justice Scalia recognized that defense of the rule of law was chief among the obligations of his office, however imperfectly his execution may have been from time to time. He refused to concede ground to the cynics who deny that Rule of Law exists or who assert that it is unattainable.
Cynicism is easy, especially in our current political environment. But if the ever-fragile Rule of Law is to endure, we must not indulge it. Justice Scalia worked tirelessly to demonstrate that cynicism need not win the day and that Rule of Law was attainable, if somewhat imperfectly in this world of sin and woe. Truly “we . . . are compassed about with so great a cloud of witnesses,”‡ in whose company Justice Scalia now resides. May his memory endure.
† See, e.g., Justin Driver, The Consensus Constitution, 89 Tex. L. Rev. 755, 786 (2011) (“Consensus constitutionalists . . . adopt an exceedingly thin conception of the field of law itself. . . . [T]he consensus school seems to believe that law is simply politics by another name.”); Amanda Frost, Mark Tushnet on Why the Constitution Doesn’t Matter, 14 Green Bag 2d. 99, 99 (2010) (“Tushnet argues that constitutional law is really politics by another name . . . .”); Michel Rosenfeld, The Rule of Law and the Legitimacy of Constitutional Democracy, 74 S. Cal. L. Rev. 1307, 1342 (2001) (“That law is ultimately politics is a position elaborated by the Critical Legal Studies (‘CLS’) movement.”);
* Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989).
º United States v. Mead Corp., 533 U.S. 218, 241 (2001) (Scalia, J., dissenting).
¹ See United States v. Santos, 553 U.S. 507, 523 (2008) (plurality opinion of Scalia, J.) (discussing the Court’s “obligation to maintain the consistent meaning of words in statutory text”).
² Morrison v. Olson, 487 U.S. 654, 697-734 (1988) (Scalia, J., dissenting).
³ Ted Olson, Lay Off Our Judiciary, Wall St. J., Apr. 21, 2005, at A16.
‡ Hebrews 12:1.