Stevens v. Scalia: a case of supreme dyslexia

Justice John Paul Stevens, who will be 90 years old on April 20, has announced that he will be retiring at the end of his term, after serving on the U.S. Supreme Court for 34 years.

Recently, the TV-viewing American public was treated to a significant debate on constitutional law between Supreme Court Justices Antonin Scalia and Stevens. There was little meeting of the minds, on either substance or process of thought, and this does not bode well for significant cases coming before the court later in 2010.

From an intellectual standpoint, there just wasn’t any comparison. Justice Stevens won the debate hands down. He demonstrated extraordinary sophistication, clarity and consistency of reasoning on complex legal issues. Scalia exhibited an agile mind, but a frankly disordered one. He seized on arguments, almost randomly, and then proceeded to contradict his own arguments, without pausing to note the inconsistency in his positions. Viewing the debate, one could see why there has been such remarkable incoherence in recent majority opinions of the court.

Justice Scalia’s hallmark line of thought is that the meaning of the Constitution, and indeed the meaning of most congressional legislation, is to be understood on the basis of “the plain written words� that anyone can see. So far, we agree. But then Scalia goes on to assert that the ordinary meaning of the words somehow cannot be understood by ordinary people, and it is the judge — and only the judge — who can really see and interpret the meaning.

How the judge does this, Scalia does not say. In short, he does not present a convincing theory or practice of judicial analytical thought. The court, it seems, is a kind of black box, into which arguments are poured, but out of which the majority result is essentially irrational and unpredictable.

 In contrast, the leading minority thinker, Justice Stevens, livened the debate with examples of actual cases where legislated terms, such as “costsâ€� or “other law enforcement officials,â€� were vague and completely undefinable on the basis of the words alone. In such case, Stevens said, judges have to look at first, the historical record, second, the context of the intended law and third, the overall purpose of the constitutional article or law under consideration to arrive at a convincing determination of the meaning of the specific text.

Scalia tried to deny the relevance of these considerations, which are bread and butter for first-year students in most law schools. Thus it was Stevens, not Scalia, who demonstrated a rational theory and practice of intelligent jurisprudence.

How did the two come out on actual cases and controversies of significance?

As could be expected. Scalia expressed his total opposition to Roe v. Wade (1973) and he did not conceal his intention in the future to overturn it, if given the chance. Meanwhile, he would support any legislation that whittled away at a woman’s “right to choose.� Scalia argued essentially on the grounds that the specific words “right to abortion� appear nowhere in the language of the U.S. Constitution. He’s right on that, of course, but is that the last word?

Stevens would look for broader purpose in the Constitution. The Roe v. Wade court actually decided the case on the broader basis of a woman’s “right of person,� consistent with the overall constitutional purpose of ensuring personal dignity and liberty — what Louis Brandeis referred to as “the right to be let alone.� The Roe court affirmed a woman’s right of “personhood� or “privacy� (in the deepest sense) emanating from the due process clause of the 14th Amendment, also known as “substantive due process,� consequently applicable to all states and the nation.

One can be for or against abortion, but that’s beside the point in deciding this case. Also, one can argue for or against a finding of a right of “personal privacy� in the Constitution, which tells government to stay out of these personal decisions.

But the point to make here is that one cannot decide such an actual case by simple application of the judge’s preferred or instinctive sense of the meaning of the plain written language of the document, or his observation that the specific language he would like to see, or would not like to see, is missing from the document. This should be obvious to Scalia, in view of the position he has taken on the next case.

Scalia defended the recent decision in the case of Citizens United v. FEC (2010), which gives corporations, including foreign-owned corporations, unlimited right to spend tens of millions of dollars on unregulated political campaign advertising and attack ads. This decision overturned 150 years of precedent, not to mention legislation, including the recent McCain-Feingold Act.

This “judicial activist� Supreme Court majority, including Scalia, reached their decision on the grounds that (1) the important words “freedom of speech� appear in the First Amendment, (2) corporations are “persons,� with all rights of persons, including speech, and (3) money is a form of “speech.� This time, however, Scalia conveniently overlooks the obvious facts that (a) corporations are nowhere described in the Constitution, (b) the term “person,� repeatedly used in the document, most clearly refers to actual, natural, human persons, and (c) corporations are not mentioned in connection with either the “equal protection� clause or “freedom of speech� in the Constitution. (For more on this, see “Voting Rights, Free Speech and Corporate Personhood� in The Lakeville Journal, April 8, 2010.)

Watching the Stevens v. Scalia debate, one realizes that these two justices could never reach agreement on significant, complex cases such as Roe v. Wade or Citizens United, not just because of differences in the justices’ starting preferences, philosophies or ideologies, which are well-known, but also because of profound differences in the way they do or don’t think. The same can probably be said of the entire court.

The result of this divide is a Supreme Court, whose black-robed members are appointed for life, who can only talk at cross purposes, and who therefore vote 5 to 4 on most significant cases without possibility of reasoned consensus.

So, it’s more than a question of choice of preferred ideology. It’s whether justices can think together. A dysfunctional Supreme Court cannot develop a consistent pattern of jurisprudence, let alone achieve justice for all Americans. This should be part of the consideration of President Barack Obama as he determines his choice to fill Justice Stevens’ seat on the court.

Sharon resident Anthony Piel is a former director and general legal counsel of the World Health Organization.