Justice Scalia as judicial statesman.

OF ALL THE MAXIMS of Chief Justice John Marshall, perhaps the most misleading is this: "It is emphatically the province and duty of the judicial department to say what the law is." Read literally, the maxim amounts to a mere tautology, for to decide a case is nothing other than to announce what the law is. Many, however,--and most especially those legal theorists called originalists,--have misread Marshall. They take his maxim to mean that the only duty of a judge is to say what the law is. Judges should not "make" law, they argue, and hence, confronted with an opinion of which they do not approve written by some disfavored judge, they find that judge in dereliction of his duty.

In actually deciding cases, however, appellate judges must frequently do more than simply state what the law requires. Suppose, for example, a judge sitting on a three-judge panel divines with absolute certainty "what the law is" in a particular case. Do his duties end when he writes an opinion to that effect? No. His opinion will not become law unless one of his colleagues joins it. If they refuse, the judge necessarily faces a dilemma: he can dissent, in which case his opinion will not become law, or he can compromise, in which case his true opinion of "what the law is" will not be published. In deciding which course to take, that a judge knows "what the law is" will not help him. He has no choice but to rely on normative commitments to some authority beyond the law itself.

The suggestion that judges must follow authorities other than the written law piques many commentators, especially on the Right. Supreme Court Justice Antonin Scalia, for example, has tirelessly evangelized on behalf of "textualism," a philosophy that purports to erect a rigid distinction between making law and saying what it is. On closer inspection, however, textualism does no such thing. Kevin A. Ring, the editor of Scalia Dissents, a recent volume of Scalia's opinions, describes Justice Scalia's approach as follows:

  [W]hen interpreting the Constitution, Scalia thinks judges should
  focus on the text. If someone claims he or she is being denied the
  exercise of a right or if the government asserts it has authority to
  take a given action, courts must make certain there is specific
  textual support for each assertion. If the proper meaning of the text
  is clear, judges should then determine whether it provides support for
  the claimed individual right or governmental authority. If so, the
  claim is valid; if not, it should be rejected. The analysis is
  complete.

In reaching this surprisingly pat conclusion--"the analysis is complete"--Ring reveals the limitations of textualism. An appellate judge has not decided a case just because he has completed his analysis. On the contrary, he must first persuade his colleagues to agree with him, and then, should that fail, he must decide how to achieve the best result under the circumstances. Judging, like legislating, necessarily requires rhetoric, and more broadly, statesmanship. The most that textualism can tell us is what the law is; it cannot tell us what a judge should actually do.

In practice, even the most committed textualists will not always decide cases in a textualist way. Scalia himself has occasionally abandoned textualism in the interests of prudent statesmanship. In Bush v. Gore, for example, he joined a per curiam opinion that contained nearly everything that textualists hold anathema, including even an invocation of nebulous equal protection rights. Nonetheless, by joining the per curiam opinion, Scalia wisely prevented a crisis of succession of the kind that has always plagued monarchical regimes. In doing so, he implicitly recognized that a judge should not always simply "say what the law is." Other considerations sometimes override the need to follow the law.

This does not mean that Scalia is a hypocrite. On the contrary, he has explicitly rejected textualism as the right approach for every case. He has denied, for example, that the Ninth Amendment authorizes the courts to protect rights unenumerated in the Constitution, despite the fact that the Ninth Amendment's text--"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"--apparently does exactly that. Scalia observes instead that reading the Ninth Amendment as a "charter for action" would require the courts to substitute "philosophical predilection and moral intuition" for reliance "upon text and traditional practice." In other words, the Ninth Amendment's open-ended language does not sufficiently constrain judicial discretion, and so it behooves judges to ignore it. For Scalia, the rule of law itself--an evident constitutional value--trumps the constitutional text: and the rule of law would appear to be his fundamental or overriding normative commitment.

The Constitution, however, may also embody other values that are in tension with the rule of law. The Fourteenth Amendment, for example, contains sweeping protections of "privileges or immunities" and rights to "life, liberty, [and] property." These abstract and expansive declarations belie Scalia's preference for clearly delimited rules. To mitigate them, Scalia has appealed to other authorities not cited in the constitutional text, such as the "long-standing traditions of American society." Scalia's celebrated respect for the rule of law, in other words, does not follow neatly and simply from respect for the Constitution, as written. Instead, Scalia wisely recognizes that the Constitution, as written, has imperfections that could fatally undermine its virtues. In deciding cases, a judge must hold in view not only what the Constitution does look like, but also what it should look like, at least to a judge. As Edmund Burke taught, the actual constitution of a people cannot be written down in full; no rational judge, therefore, will expect the constitutional text to resolve all controversies.

To achieve any constitutional vision, much less one as controversial as Scalia's, a judge needs rhetoric and statesmanship as well as legal skill. Surprisingly, however, though many have praised Scalia as a rhetorician, few have ventured to analyze the implications of his rhetoric. Scalia's judicial philosophy continues to attract floods of comment, yet we know little about Scalia's strategy for achieving his constitutional vision, much less whether it is working. Scalia Dissents therefore presents an opportunity to evaluate Scalia's unusual, if not unprecedented, judicial statesmanship.

The first thing that must be observed is that Scalia is only the second judge in American history to have had his opinions anthologized during his lifetime: a volume of dissents by Oliver Wendell Holmes, Jr., appeared in 1929. Ordinarily, judicial opinions do not make for great (or even very good) literature. To increase his chances of commanding a majority, after all, an appellate judge typically hews to rigid stylistic conventions, blunts disagreements, avoids sharp points, and masks controversy. Judicial rhetoric, in other words, deliberately stupefies the reader, lest he question the illusion that an opinion derives from the Law itself rather than from actual persons.

Scalia, by contrast, has transcended such rhetoric. When writing for the majority, his opinions exhibit a lucidity much prized by practicing lawyers and legal scholars. As one otherwise unsympathetic scholar put it, he has a codifier's mind. Yet, while Scalia's majority opinions may read well in a law student's casebook, they will not excite laymen. Not surprisingly, Scalia Dissents contains none of them. Rather, as the title of the book would suggest, Scalia has won renown by emphatically rejecting the views of his colleagues. A justice famously at loggerheads with his colleagues, he has, in a series of notorious dissents and concurrences, relentlessly excoriated them for their perfidies.

In a sense, therefore, Scalia has written memorably precisely because he has failed to influence the court. Freed from the obligation to write for a committee, he has taken stylistic liberties not available to the majority. He has had the advantage of dramatic suspense: whereas majority opinions present each outcome as if it followed ineluctably from established premises, dissents attempt to unmask the majority's reasoning as something other than it appears. Indeed, they not only do not have to stifle controversy, but also may instead foment it.

Yet even dissenting judges usually write for their colleagues rather than for the public at large. On the inferior courts, a dissenting judge usually tries to convince a higher court or another circuit to adopt his reasoning; on the Supreme Court, a dissenting justice usually tries to convince a future court. He will not, therefore, defy convention or do anything smacking of lese-majeste.

Oliver Wendell Holmes, Jr., for example, wrote perhaps the most devastating dissent in Supreme Court history in Lochner v. New York (1905). In response to the majority's holding that maximum work-hour rules violated a constitutionally protected "freedom of contract," he observed, "The Constitution does not enact Mr. Herbert Spencer's Social Statics." This mordant line eventually turned Lochner from settled law into an abusive epithet. Yet Holmes never actually accused the majority of setting aside the law in favor of laissez-faire ideology; the very outrageousness of the charge would have rendered his dissent nugatory. Rather, his "Social Statics" aphorism relies on suggestio falsi: though Holmes himself may not have said as much, later justices quickly concluded that the majority in Lochner had allowed their ideological interests to cloud their reasoning.

Scalia, by contrast, has written far more bluntly, and many of his memorable lines have been strictly ad hominem. "Seldom has an opinion of this Court," he wrote in Atkins v. Virginia, "rested so obviously upon nothing but the personal views of its Members." In Planned Parenthood v. Casey, he wrote, "It is difficult to maintain the illusion that we are interpreting a Constitution rather than inventing one, when we amend its provisions so breezily." And in Lawrence v. Texas: "It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed." Other examples abound.

At the same time, Scalia has not just flouted stylistic conventions but often spurned them altogether. In Planned Parenthood v. Casey, for example, he scandalized the legal establishment by taking apart the plurality's opinion, line by line. Scalia writes not as an artful seducer but as Jeremiah, sent not to save Israel but to condemn it.

Consequently, as Ring puts it, Scalia "cannot attract a majority because his sharp pen and biting comments have alienated so many of his colleagues." Ring, however, excuses Scalia's "exasperation and even anger" as understandable in light of the other justices' lack of "any discernible concern for the value of the rule of law and the need to have a guiding principle." In other words, Scalia does not need to moderate his rhetoric, given how irredeemable the rest of the Court has shown itself to be.

It should be clear, however, that this argument does not exonerate Scalia entirely. Just because the current stiff-necked Court has rejected his calls for repentance does not mean that all future courts will. Holmes's dissent in Lochner did not bear fruit until thirty years after the case was decided. Scalia's dissents, by contrast, seem calculated to disgruntle justices well into the indefinite future.

None of this should be taken to mean that Scalia's rhetorical strategy is irrational. In fact, Scalia's constitutional vision has little hope of ever winning support from Supreme Court justices. As he ruefully observed in Lawrence v. Texas, which struck down Texas's anti-sodomy statute, "So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously 'mainstream.'" The problem, in other words, is not the Court but the entire law profession--and perhaps, too, that class of the highly educated from which the legal professional is drawn. Supreme Court Justices will always, necessarily, hail from that portion of the population most hostile to Scalia's vision. The corollary is left unstated: the only way to defeat the Court is to rouse other portions of the populace to action.

As a judicial statesman, therefore, Scalia has adopted a novel strategy. Rather than appeal to the legal profession, as other justices have done, Scalia has addressed the public at large. As Ring revealingly writes, Scalia's feelings about the Court "are the same feelings shared by millions of Americans who wonder what guides the Supreme Court at times." Scalia writes for them as much as for professional readers of Supreme Court opinions. Many of his opinions have thus become culture-war landmarks. With respect to homosexuality, abortion, capital punishment, public expression of religion, and other controversies, they have insured that some significant portion of the American public will never accept the Supreme Court's rulings as legitimate. Scalia aims less to persuade than to galvanize.

Scalia sometimes even telegraphs what tactics opponents of the Court should adopt. In Grutter v. Bollinger, which upheld Michigan Law School's affirmative action program, for example, he outlined six separate ways in which litigants could challenge affirmative action in the future, and even described which types of public institutions would make the most "tempting targets." He then added, with some irony, "I do not look forward to any of these cases," despite the fact that, by describing them, he vastly increased the odds that those very cases would come before the Court.

The most famous example of Scalia's constitutional statesmanship remains his dissent in Planned Parenthood v. Casey. In that case, a three-judge plurality upheld the "core holding" of Roe v. Wade that a woman has a Fourteenth-Amendment right to abort her unborn child. Although the plurality all but conceded that the Court had decided Roe incorrectly, they nevertheless held that stare decisis demanded they not reverse. In other words, to paraphrase the plurality's reasoning, there is a constitutional right to abortion for no other reason than that the Supreme Court has said so. Having announced its implacable resolve, the plurality then "call[ed] the contending sides of the national controversy to end their national division by accepting a common mandate rooted in the Constitution."

Scalia would have none of it. He mercilessly mocked the Court's stare decisis rationale: "It seems to me," he wrote of the plurality's decision to preserve only Roe's "core holding" rather than its trimester scheme, "that stare decisis ought to be applied even to the doctrine of stare decisis, and I confess never to have heard of this new keep-what-you-want-and-throw-away-the-rest version." He insinuated that the Court was not only wrong but corrupt, perhaps even corrupt absolutely: "The Court's statement, that it is 'tempting' to acknowledge the authoritativeness of tradition in order to 'cur[b] the discretion of judges' is, of course, rhetoric rather than reality; no government official is 'tempted' to place restraints upon his own freedom of action, which is why Lord Acton did not say 'Power tends to purify.'"

Most importantly, Scalia prophesied that the plurality's opinion would not mend America's national division over abortion. "Roe did not," he observed, "as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level, where it is infinitely more difficult to resolve." In a famous passage, he invoked the ghost of Roger Taney, author of the majority opinion in Dred Scott v. Sandford:

  There comes vividly to mind a portrait by Emanuel Leutze that hangs in
  the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82nd
  year of his life, the 24th of his Chief Justiceship, the second after
  his opinion in Dred Scott.... [T]hose of us who know how the luster of
  his great Chief Justiceship came to be eclipsed by Dred Scott cannot
  help believing that he had that case--its already apparent
  consequences for the court, and its soon-to-be-played-out consequences
  for the Nation--burning on his mind. I expect that two years earlier,
  he, too, had thought himself "call[ing] the contending sides of
  national controversy to end their national division by accepting a
  common mandate rooted in the Constitution."

Scalia concluded, ominously, that Casey would no more end the abortion controversy than Dred Scott had ended the slavery controversy.

Scalia did not say that this controversy should continue or that its "contending sides" should remain divided. He merely predicted that the controversy would continue. Nonetheless, by comparing abortion to slavery, he implied with a deftness that Holmes would have appreciated that just as resistance to Dred Scott is now considered legitimate, so resistance to Casey will also one day be considered legitimate. Unsurprisingly, it did not take long for opponents of Casey to conclude that they had a moral duty to resist Casey (never mind that, unlike in the case of abolitionism, no serious movement to criminalize abortion nation-wide exists, or, moreover, could possibly succeed). Scalia's dissent may not have exacerbated the abortion controversy, but it did extinguish whatever hope the plurality had of ending it.

Scalia Dissents usefully collects nearly all the opinions written for Justice Scalia's ideological followers. As a guide to the Constitution, constitutional theory, or constitutional law, however, it is almost entirely useless. For one thing, the volume contains none of the other justices' opinions, without which the reader cannot even see what Scalia is criticizing. The reader must simply take it on faith that what Scalia says about the other justices' opinions is true. This is plainly a book for the already convinced.

Ring tries to hide the tendentious character of his editing by arranging Scalia's opinions programmatically, as if Scalia's opinions added up to a treatise on jurisprudence. Thus, he begins the book with a chapter-length encomium to "Scalia's philosophy," and introduces each opinion as if it were an application thereof. The opinions themselves, however, do not amount to a treatise on judicial philosophy. Rather, they expose fallacious arguments made by the majority, whether Scalia agrees with the premises of those arguments or not. Readers seeking a deeper appreciation of Scalia's judicial philosophy would do better to consult his scholarly works, such as his monograph A Matter of Interpretation (1997).

Those who take Scalia as their paladin will enjoy Scalia Dissents. For better or worse, however, they will learn little about constitutional law, and may even come away with their misunderstandings reinforced. More importantly, they will not learn from Scalia Dissents how to convert their anger and exasperation at the Supreme Court into an effective strategy for defeating it. Justice Scalia has already performed his service to them; it will take another prophet to lead them to the promised land.

BOOK DISCUSSED in this ARTICLE Scalia Dissents: Writings of the Supreme Court's Wittiest, Most Outspoken Justice, edited by Kevin A. Ring. Washington, D.C.: Regnery Publishing, 2004.

AUSTIN W. BRAMWELL is an attorney practicing in New York City.