January 19, 2006

The Literal Version of Scalia's Literalism

As this article points out, Scalia has criticized his colleagues repeatedly for not sticking to principles in their abortion rulings, but instead pandering to value judgments—"philosophical predilection and moral intuition." I like that—philosophical predilection. Hmmmm.

Anyway, moving on, in Gonzales v. Oregon, the assisted suicide case just before the Court, Scalia dissents from the majority ruling that the federal government (i.e. John Ashcroft and his successor Alberto Gonzales) cannot stick its big nose into Oregon's right to pass a law allowing assisted suicide (Oregon has actually passed this law twice).

Scalia dissents, following Aschcroft's use of the Controlled Substances Act with its clause restricting substances with no legitimate medical purpose as his basis for allowing federal intrusion. His colleagues state sensibly that "legitimate medical purpose" is a value judgment and the intention of the Controlled Substances Act was demonstrably not even close to applying to this circumstance.

Scalia demonstrates that his commitment is not to precedent (even his own) or to consistency or even to original intent, but to his own program, his own agenda. And yet the very conservatives who decry activist judges probably hold up his opinion as a model of jurisprudential sanity.

(The Agenda Gap has more.)


  1. That line is a particularly troubling aspect of the opinion, but I suspect that if you read the whole thing (the actual opinion, not the Slate article), you might be less convinced of the point you're making.

    The opinion is here

    And Scalia's dissent starts at p. 34 of the file.

    Clarence Thomas's dissent is the clearest strike against the majority -- no coherent basis for distinguishing Raich.

    From a brief skim of the opinion, this is my understanding of it:

    The Attorney General is allowed to administer the Controlled Substances Act, which means that he can pass regulations fleshing out the specifics of the statute, and he can further flesh out the specifics of the regulations.

    He can't go beyond the statute and make stuff up, but as long as what he says is a reasonable interepretation, what he says goes. This is the basic thrust of the Chevron case (probably the most important case in administrative law), and the majority and dissent agree on this general proposition.

    The question is whether the AG is clarifying an ambiguity in a statute, or effectively going beyond the authority that Congress gave him. The CSA is concerned with "illicit" drug dealing and trafficking, and there's a regulation that says that Schedule II drugs could only be prescribed “for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.”

    The majority said that it was beyond the AG's authority to say that "legitimate medical purpose" doesn't include assisted suicide.

    Scalia says "yes it is," and the majority has overstepped its bounds by saying what *it* thinks a legitimate medical purpose is, instead of merely deciding whether the AG's interpretation was reasonable, as the law requires. In other words, to the extent that this is a value judgment, it's the AG's to make, not the majority's, and not Oregon's--given Raich v. Gonzales.

    Perhaps unfortunately, Scalia does a slight rhetorical touchdown dance at the end of his opinion. I say unfortunately because his critics always latch onto this part of the opinion and ignore the rest of it.

    I may have made some glaring errors because I haven't read the full opinion. But I don't think that this is an indictment of his commitment to his principles.

    His critics might say it's a fluke, but I think that Scalia's separate opinion in Hamdi makes the strongest case for his commitment to principles rather than results.

    Brian Leiter is as liberal as they come in legal academia, and his analysis is here
    His conclusion is:
    In any case, I will say this for Justice Scalia: unlike some originalists who are purely opportunistic (remember Bork when he was on the D.C. Circuit?), Justice Scalia generally retains loyalty to his theory of constitutional interpretation across a wide range of cases—which leads him to results that don’t always fit his “conservative” reputation.

    He goes on to say that Justice Thomas's opinion in the same case "comes down squarely in favor of fascism."

    Michael Froomkin's is here

    Scalia isn't batting 1.000 in terms of sticking to his principles, but he's a lot closer to that than his critics like to think. In my opinion, the Oregon case is a little strange, but not evidence of a commitment to "his own agenda," or a stick in the eye of conservatives who decry "activist judges."

  2. perhaps I did my own rhetorical touchdown dance at the end of my post; i will concede that he is a great deal more consistent than O'Connor, for example.

    But Bainbridge sure seems to agree with the sentiments of the Slate article, and a Volokher applauds.

  3. Bainbridge has some interesting thoughts. Bernstein's a little strange and I suspect that he's parroting something that he's heard from others.

    I should take my own advice and sit down with the opinion later. There's probably more to the criticisms than I initially suspected. That said, from what I've seen, Scalia has a coherent set of principles and seems to make an honest effort to stay faithful to them. The more fruitful line of criticism might be to question where he got his principles, and to look at opinions like Gonzales v. Oregon as indictments of the principles themselves rather than Scalia's honesty.

    I think his rhetorical flair provokes his opponents, though, to the point where they rub his nose in the little things at every chance they get rather than addressing the bigger picture.

    Stephen Breyer is at least on the right track. He's written a book pushing his own, different principles, and he's had a few public debates with Scalia about some of these things.

    Maybe it's my bias, but I think Scalia's imperfect rather than unprincipled, and that his critics overstate the case in a way that harms their own credibility more than it harms his.

  4. Though this version of Scalia's literalism is pretty funny.