Monday, April 22, 2013

Scalia's Symphony



            Antonin Scalia rose to the position of Supreme Court Justice in 1986. In twenty-seven years as a member of the only American court to have both original and appellate jurisdiction, Justice Scalia has consistently argued for his method of determination he calls “textualism”. Scalia’s major essay and responses were published in his 1998 book A Matter of Interpretation[1], this book also features objections from Gordon S. Wood (Professor, Brown), Laurence H. Tribe (Professor, Harvard) Mary Ann Glendon (Professor, Harvard) and Ronald Dworkin; who passed away on Valentine’s Day 2013, after a long battle with Leukemia at the age of 81. Textualism can be defined as a process of defining language and deducing the meaning based on “text and tradition” not “intellectual, moral, and personal perceptions”, which according to Justice Scalia would constitute a government of laws not men.
          Scalia opens his essay commenting on how when one begins to study general law it initiates a mental shift manifest in the methodology of analysis of information, and gives full sense to the cliché of “thinking like a lawyer”. Scalia marvels at some of the interesting ways common law can be contorted and combined with other statutes till the desired outcome is achieved. However, Justice Scalia’s job on the Supreme Court is not to judge common law but provide statutory interpretation.
            This is the first key distinction Scalia makes at the beginning of the essay; and it is the difference between common law, used more in smaller courts and most criminal trials; and statutory/regulatory interpretation which Scalia states is the primary job of the Supreme Court. This distinction plays a key role because textualism attempts to objectify, as much as possible, the text within the context to draw a conclusion that is logically consistent, even if circumstantially difficult. Justice Scalia provides the example of the case of Maryland vs. Craig[2]. The case had reached the Supreme Court level because of the appeal to the Sixth Amendment; the case was against an alleged child sex offender and the child was said to be so traumatized that they could not face the accused in court and thus set up a one-way television set for the testimony. That special accommodation directly conflicts with the clear language of the Sixth Amendment “...to be confronted with witnesses against him...”
           Scalia dissented in this case because it seemed so clear that text of the Sixth Amendment had been contradicted. The inherent nature of this case namely, child abuse, exponentially magnifies the emotional public response; however the prosecution did not want to put the child on trial, thus could not sufficiently satisfy the Sixth Amendment rights of the accused. Implied within his dissent is a harsh truth of constitutional and statutory interpretation, that Justices should not allow personal feeling of a case factor in the decision, to the point where the defendant is assumed guilty.
Supreme Court Justices are not moral arbiters but interpreters of legal language, same as a musician in a symphony interprets prewritten musical language. Within this analogy the Legislator and Constitution (Supreme Law) would be composers of the music being played by the symphony. It is true that the piece of music may have a solo; implying an individual’s interpretation, but a good musician will solo in key with the song so that the two remain fundamentally connected. Likewise judges read legal language and Justice Scalia believes they should stick to the script as much as possible; without the metaphorical solos. The intrinsic purpose of the Supreme Court however, is to be the highest court of the Republic. So it comes as no surprise that the cases they generally receive are not cut and dry decision, and even if we agree with the accommodation that was made in this case it is beyond any doubt a violation of the Sixth Amendment.        
            Justice Scalia goes on to warn about cases of this nature because they can seem innocent and even morally exemplary; but any case has the potential to grow insidiously and be spread into common law and throughout the legal system, to the point where false victims can make allegations without ever facing the accused. The preservation of liberty requires diligence and to contradict the language is in effect creating new statutes, this decision expands the influence of unelected judge’s decisions into a legislative role. Scalia fiercely rejects any type of legislative judiciary view and believes that his job is to officiate and know the rule book, not continually change the game as it goes. Without the core essence of textual intent the document is rendered completely useless, we might as well draft a new constitution every generation if we believe the application of the text to be dynamic.   
            Critics of textualism often say that strict interpretation of the Constitution slows down societal progress, instead of leading for social justice and other democratic ideals. This of course is hardly a coherent objection if one understands the purpose of the language in the Constitution to form a Republic, with certain individual rights guarded from popular legislation; acting as a stabilizing mechanism and underpinning the core values of the Republic.  Innovation of technology through creativity leads the trajectory of a society; the court’s job is to interpret the Constitution along the same lines as was textual and contextually implied. For example, the First Amendment has no mention of the internet or telephones among many others; yet when Congress attempted to pass the SOPA bill[3] the people killed the bill before it could even get to the Supreme Court. Again, Scalia seems to be pointing out the very nature of the role as Supreme Court Justice because if the people believe a bill violates their rights it generally will not make it the whole way to the Supreme Court. That is why the cases they do receive concerning Constitutional or statutory law must stay in tune with the Constitutional language and precedent.
            Throughout the essay Scalia makes the point that because the Supreme Court has such an odd relationship in respect to the notion of democracy, the Supreme Court has the potential to grow further away from the Judicial Review paradigm (which was not bestowed upon the Supreme Court at the conception of the constitution, and many framers were against the court having the power of Judicial Review). Reliance on Legislative History or Legislative Intent in Justice Scalia’s view is insufficient means to take a stance on a vote, and will inevitably lead to an even messier maze of cognitive dissonance and moral ambiguity.
            Justice Antonin Scalia has a very polarizing effect, recently I watched Rachel Maddow go on The Daily Show with Jon Stewart and accuse Scalia of “trolling” and just saying outrageous things for the publicity or shock value. One thing that must be acknowledged is his consistency in his methodology of a decision; which is the greatest quality one can look for in a person whose job it is to make interpretive decision, such as a referee. All that can be truly asked for is that a foul in the first quarter is called the same in the second quarter; likewise for judges a violation of a statute is a violation of a statute regardless of circumstance.
                            



Bibliography

"Maryland v. Craig." Supreme Court Ruling, Washington D.C., 1990. http://www.law.cornell.edu/supct/html/89-478.ZD.html

House of Representatives. "Stop Online Piracy Act." House Resolution 3261, Washington D.C., 2011.
                http://www.govtrack.us/congress/bills/112/hr3261

Scalia, Antonin. A Matter of Interpretation. New York: Princeton University Press, 1998.


[1] A Matter of Interpretation. Written by Antonin Scalia. 1998. New York City, NY. Princeton University Press
[2] Maryland v. Craig, 497 U.S. 836 (1990).
[3] Stop Online Privacy Act. H.R. 3261. Introduced October 26th, 2011 in the House.

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