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Why I Am a Scalia Skeptic

The Contemplation of Justice. Gary Blakeley / Shutterstock.com

Too much of movement conservatism amounts to an inverted leftism. If the left is caricatured as pacifistic, the movement right doubles down on militarism. If the left is caricatured as socialistic, the movement right doubles down on free-market ideology, which turns out only to disguise corporatism. (Laissez-faire libertarians have as many grounds for complaint here as prudential conservatives do.) Sound policy is not merely the opposite of whatever the left happens to favor.

Quite often right-wing reactions to the left start out as common-sense responses to ideological overreach by progressives. But those common-sense responses then get abstracted and expanded into pseudo-principles or polarized attitudes. Thus, while there certainly were America-haters in the Vietnam-era antiwar movement, the idea that antiwar sentiment in general is anti-American is an ideological exaggeration, one that had tremendous political potency until a Republican president’s war in Iraq caused an overwhelming realignment of public opinion. Republicans and movement conservatives who should have known better before the Iraq War—hint: they’re often the ones who decided it was a bad idea around 2006—were nonetheless so conditioned, like Pavlov’s dogs, to respond to ideological cues about anti-American antiwar sentiment that they shut down their brains and for years supported a policy that was harmful to their country as well as their party.

What was true in foreign policy—and still is, to some extent—remains true in economics, where we’ve seen a cartoon approach to smaller government and freer markets taken up by the Tea Party and some of its champions in Congress, much to the chagrin of, say, traditionalist Distributists and anti-corporatist libertarians alike. And to the chagrin as well of temperamental conservatives who these days are reviled as RINOs and moderates. Caricatures and publicity stunts prevail, and the results are Republican and movement-conservative policies that are deeply confused: Romneycare one minute; pitched resistance to Obamacare the next. Medicare Part D and the Bush deficits one minute; battles over the debt ceiling the next. The governing idea or image in the minds of movement conservatives is one in which a Republican fights the left through whatever policies he enacts, and a Democrat advances socialism through anything he does—even if the Republican and Democrat do pretty similar things. The intensity of the movement’s commitment to this false dichotomy seems almost inversely proportional to the concrete differences between GOP and Democrats. (The Iraq War, of course, was supported by Democrats as well as Republicans.)

It would be surprising if this systematic flaw in movement-conservative thinking only applied to foreign policy and economics. Might it also apply to jurisprudence?

Scalia’s interview with New York provides several signs that it does. But first, the reflexive adulation that greets Scalia among movement conservatives is a warning in itself. It’s a response that has the same emotional resonance as the “free market vs. socialism” and “troops vs. anti-Americanism” triggers. The reverence is automatic and unquestioning. One shouldn’t make the mistake of raising cynicism to a virtue; sometimes a simply good thing should simply be celebrated. But when movement conservatism is wrong about so much else, skepticism here is warranted.

That’s what’s troubling about the movement’s view of Scalia. The justice reveals in his interview with Jennifer Senior that he feels about the movement roughly the way it feels about him. The newspapers he reads are movement organs:

We just get The Wall Street Journal and the Washington Times. We used to get the Washington Post, but it just … went too far for me. … It was the treatment of almost any conservative issue. It was slanted and often nasty. And, you know, why should I get upset every morning? I don’t think I’m the only one. I think they lost subscriptions partly because they became so shrilly, shrilly liberal.

So no New York Times, either?
No New York Times, no Post.

And while he gets a little NPR, he prefers to tune into the voices of the movement:

And do you look at anything online?
I get most of my news, probably, driving back and forth to work, on the radio.

Not NPR?
Sometimes NPR. But not usually.

Talk guys?
Talk guys, usually.

Later on Scalia tells Senior, “I read newspapers that I think are good newspapers, or if they’re not good, at least they don’t make me angry, okay?”

The trouble here is not that Scalia doesn’t read the newspapers that make him angry—he’s old enough that he doesn’t need any civics lectures about the merits of hearing another side—it’s that he excludes them while including movement organs that are chiefly going to tell him what he wants to hear. What he wants to hear is what the movement has to say. If the conservative movement in America were a more edifying thing, that wouldn’t be so bad, but again, consider its recent record.  What does it say about a man that he identifies with the movement in this way?

None of this relates directly to jurisprudence. Except perhaps it does: Supreme Court opinions are drafted by men and women, not by some segregated part of a justice’s mind that is strictly concerned with law beyond the context of culture and life. This is a point that clashes somewhat with the very foundations of originalism, the whole point of which is to minimize the human element on the part of judges in their rulings. Whether that’s an altogether proper ideal or not, it’s an ideal that one must acknowledge cannot be perfectly fulfilled: judges can hardly stop being who they are while they render opinions. There’s a difference, of course, between acknowledging this and contemning impartiality itself, which even apart from any specific legal doctrine is a quality judges are expected to cultivate.

One danger of originalism is that in putting so much emphasis on a form—perhaps even a brand—it can disguise a rather different substance. In the same way that right-wing blather about socialism on the part of the Democrats disguises the extent to which Republicans habitually deviate from their professed devotion to market freedom, it’s possible that originalism can disguise judicial activism. Another difficulty, or at least dimension, is that originalism purports to be a neutral doctrine when in fact it’s a right-wing doctrine whose popularity was directly related to the political reaction to the left-wing judicial activism that preceded it. It can be the case, in this or any other matter, that neutrality—just the facts, ma’am—favors one side or another. But we’re talking about some very rarified political-intellectual activity here, laden with assumptions about epistemology, philosophy of history, hermeneutics, political theory, psychology, ethics, and much else. A legal theory touches some very deep waters, where objectivity is far from obvious.

Which is another reason to be skeptical—a simple doctrine here disguises tremendous, ineradicable complexity. Again, that provides plenty of room in which to hide (or unconsciously import) exertions of will: personal preferences, party politics, and so forth.

As a guideline, originalism clearly has merits: it leaves most politics to the political branches, even if it might not succeed in leaving all politics to them; and it may encourage, at least up to the point, a degree of modesty on the part of the judge—relative, that is, to theories that loudly assert the scope that judges actually have in rendering opinions. In some ways, originalism and the broader backlash against the activism of the pre-Rehnquist court may have disguised just how bad the alternatives could be: the Supreme Court has been less adventurous in the last 30 years, and conservatives who remember how adventurous it was earlier in the 20th century may be frustrated that the danger they perceive isn’t felt as strongly by someone like me.

But I remain skeptical. Jurisprudence is an area where I find very little conservative self-examination as searching as that on display in various schools of economics and foreign policy. Indeed, traditionalists and libertarians who reject conservative-movement talking points on economics or foreign policy sometimes sound like just like Rush Limbaugh or Bill Kristol when it comes to the courts. This consensus may exist for a good reason—because it’s formed around a correct doctrine—but it may just mean that the best minds of the right have yet to turn sufficient attention to this area.

about the author

Daniel McCarthy is the editor of Modern Age: A Conservative Review, and Editor-at-Large of The American Conservative. His writing has appeared in the New York Times, USA Today, The Spectator, The National Interest, Reason, and many other publications. Outside of journalism he has worked as internet communications coordinator for the Ron Paul 2008 presidential campaign and as senior editor of ISI Books. He is a graduate of Washington University in St. Louis, where he studied classics. Follow him on Twitter.

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