Times v. Scalia
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

A New York Times editorial of October 18 detailed the effects that re-electing President Bush will have on the Supreme Court. The editorial argued that Bush nominees to the Supreme Court can be expected to vote in line with Justices Scalia and Thomas and that, according to the editorial, would be catastrophic. The editorial has become particularly important in light of this week’s news relating to the health of Chief Justice Rehnquist.
The editorial makes the following specific claims: States will be allowed to adopt official religions, thereby becoming “mini-theocracies”; the Supreme Court’s Miranda decision will be overturned; and the rights of women, minorities, and prisoners will be “rolled back.” In addition to these, the editorial makes two general observations: First, Bush appointees will be driven by the same passion for federalism that has motivated Justices Scalia and Thomas, and second, that what underlies the decisions of Justices Scalia and Thomas is a “cruelty” that will also guide those whom Mr. Bush appoints to the Supreme Court. Owing to the limits of space and because Justice Scalia is the more influential of the two justices, this column will be restricted to an analysis of Justice Scalia’s jurisprudence.
Let us begin with the claim that Justice Scalia is a “judicial activist, eager to use the fast-expanding federalism doctrine to strike down laws that protect people’s rights.” What the Times is saying here is that Justice Scalia is willing to further the objective of dismantling the national government by using any legal rationale to strike down federal statutes that support the apparatus of national government or that further the rights of the disenfranchised. There is no doubt that there are judges in this country who are motivated by this strategy. The question is whether the editorial is right in stating that Justice Scalia is one of them. The answer is certainly no.
One might begin with Justice Scalia’s own opinion on the subject, as quoted in a study of Justice Scalia’s decisions by the legal scholars David Schultz and Cristopher Smith: “[Scalia]has nevertheless warned other conservatives against reflexively condemning the federal government. In a speech to the Federal Society about political conservatives’ penchant for criticizing the federal government, Scalia said, ‘I urge you, then – as Hamilton would have urged you – to keep in mind that the federal government is not bad but good. The trick is to use it wisely.'”
This view of Justice Scalia has been confirmed by others, including Richard Brisbin Jr., who has written an exhaustive analysis of Scalia’s jurisprudence. In that study, Mr. Brisbin observed that the “lesson of [Scalia’s] opinions has been that the primary generation of beneficial policies and the protection of liberties should come from the Constitution and federal law. State governments can create or supplement policies that improve persons’ lives, but the ordering of liberty preeminently rests in the hands of Congress.” Mr. Brisbin then concludes that “Scalia’s position has been noticeably more favorable to the exercise of federal power than have the positions of most other justices appointed by Republican presidents, including Chief Justice Rehnquist and Justices Kennedy, O’Conner, Souter, and Stevens.”
Messrs. Brisbin, Schultz, and Smith are not admirers of Justice Scalia. They are, though, scholars who have carefully considered Justice Scalia’s jurisprudence and have had the integrity to report their findings.
As to the editorial’s statement that Justice Scalia would permit the states to adopt official religions and then impose those religions on the citizens of the state – the “mini-theocracies” argument – there is absolutely no basis for the claim.
Stephen Goldberg, a professor of law at Cardozo, writes in an article on Justice Scalia’s decisions in Establishment Clause cases: “Scalia, after all, would never dispute that the Establishment Clause prevents the government from formally designating a state religion….” Kathleen Sullivan, the former dean of Stanford Law School and a critic of Justice Scalia’s jurisprudence in this area, admits that the “erection of a Latin cross on the roof of a state capital or city hall would not present a hard case, and would not divide the Court.” She does not even bother with the suggestion that Justice Scalia would permit the creation of mini-theocracies.
Also misleading is the editorial’s statement that Justice Scalia is in favor of overturning the court’s decision in Miranda. While Justice Scalia believes that prosecutors should be allowed to use evidence that is the result of a voluntary waiver of known rights, he is opposed to using testimony that has been compelled or that is given by a defendant who is unaware of his or her rights.
But what of Justice Scalia’s position on criminal rights generally? Mr. Brisbin, who, again, is critical of Justice Scalia, states that Justice Scalia’s “criminal law opinions have been not inattentive to defendants’ rights. He has supported some bans on warrantless searches, the Miranda requirements, the physical confrontation of witnesses, and the protection against double jeopardy. In some opinions he has imposed discipline on the way in which the government can prosecute cases, and he has required police and prosecutorial professionals to respect the privacy and body of the defendant.”
What of the editorial’s statement that a Bush nominee, following Justice Scalia’s decisions, would “roll back” the rights of minorities, gays, and the poor? This too fails to present Justice Scalia’s views accurately. When the legal claims of these groups (or any other groups, for that matter) are based on judicial decisions interpreting ambiguous statutes or precedent, the editorial is correct. But when the rights of these groups are drawn from clear statutory authority or are strongly implied from statutes or the Constitution, the editorial is wrong. Justice Scalia, for example, added his vote to those of the liberal justices in upholding flag burning as constitutionally protected and he struck down the government’s effort to impose mandatory drug testing on the employees of the U.S. Customs Service.
Finally, there is the Times’s observation that Justice Scalia’s decisions are characterized by “cruelty.” It need be pointed out that few cases that come before the Supreme Court are easy cases: more often than not, they are cases in which federal circuits and district courts have divided; too often, they are cases in which a decision either way has terrible consequences – Roe is such a case, so too the Ohio voucher case (both of which are cited in the editorial). In the voucher case, for example, the vouchers were aimed at providing assistance to needy children suffering the collapse of the public schools of Ohio. Justice Souter himself, while writing against the voucher program, conceded that if there were ever a reason to allow vouchers, the children of the Ohio school system were it.
As to another case cited by the editorial as an example of Justice Scalia’s cruelty (a case in which the Court recognized a constitutional right to have the state subsidize a parent’s appeal from a hearing which terminated parental rights), there is a real question as to whether it is fair to attach the label of cruel to those justices who voted in dissent:
The general law is that the Constitution does not require appellate review of criminal or civil cases. The courts have, however, held that if a state does provide for an appeal, it must not put up obstacles that preclude indigents from being able to appeal. This latter rule, which had been interpreted by the court to require state assistance in the appeal of criminal cases, had not been applied to parental termination hearings, which are by their nature civil. When the question came before the court, it was a case of first impression and a difficult one at that.
The thrust of the dissent, which Justice Scalia joined, was that the woman whose rights were terminated had received such extraordinary due process protections – including notice, the right to counsel, a hearing in which she could present witnesses and confront witnesses against her, a neutral and legally trained decision maker, the right to have her rights terminated only if there was clear and convincing evidence against her, and the right to appeal – that the Constitution did not require that she be given the further benefit of having her appeal paid for by the state. That dissent may be wrong – I, for one, believe it to be wrong – but is it cruel?
A close reading, or any reading, of Justice Scalia’s opinions or the commentary written about Justice Scalia would have disclosed to the Times that its broadest and most disturbing claims – that Justice Scalia is a judicial activist intent upon subverting the national government or that he is prepared to permit state governments to become theocracies – are wrong and that the more specific statements in the editorial are wrong or misleading. It is unfortunate that such an editorial should appear at such a time.
Mr. Rips, who was a law clerk to Justice Brennan, practiced law in New York.