Scalia and the Advent of the Celebrity Justice

Given the most recent public controversy involving statements made by Justice Scalia on torture, this prior column may be of some interest:

HEADLINE: The high court’s enfant terrible

Antonin Scalia appears to have every gift and advantage that a jurist could possess. He is brilliant, in robust health and has a personality so engaging that few (even among his critics) can resist liking him. Indeed, from the day he was appointed to the U.S. Supreme Court he seemed to lack only one essential element: adult supervision.

The increasing list of controversies surrounding Scalia reinforces his image as the enfant terrible of the court: precocious, unpredictable and impetuous. This month, Scalia has been dealing with a combination of such episodes ranging from a recusal from one case, the near recusal from another and an accusation of strong-arm censorship.

The latest controversy occurred during two speeches Scalia gave in Mississippi. Scalia often insists on no recordings at his speeches, including one controversial ban on television and radio recording at a speech when he received an award for supporting free speech. In Mississippi, however, no such rule was announced so two reporters proceeded to record the speeches, only to be confronted by a federal marshal demanding their tapes and then erasing them. This scene was made all the more bizarre by the subject of Scalia’s speech: the Constitution and the failure of people to have proper respect for its freedoms.

This week, Scalia issued a rather belated apology to the reporters after a week of criticism, including calls in Congress for an investigation. Scalia insisted that he never personally ordered the destruction of the tapes. Scalia further stated that he was reconsidering his no recording policy at future speeches. In a letter to one of the reporters, Denise Grones of the Associated Press, Scalia defended the deputy marshal involved in the incident. Scalia explained that his insistence that the speech not be recorded was never publicly announced as intended and that “the marshals believed [with good reason] that the same policy was in effect.” Scalia vowed to be more careful in the future to ensure that announcements are made at each speech.

The Scalia apology misses the point. First, he seems to believe that, if the announcement had been made, federal marshals would have the authority to seize or destroy the tapes. However, the use of a federal marshal in this fashion constitutes a form of censorship. Whether there was an announcement is irrelevant–the marshals had no authority to act in the matter. The marshal was present as part of a protective service detail, not Scalia’s personal praetorian guard. If Scalia is obsessed with such recordings, he must make arrangements with the host of the speech to enforce the rule and not use public personnel to carry out his private desires. Second, the greatest problem for Scalia has not been his ban on the recording of his speeches but the speeches themselves. Historically, many justices have refused to give any speeches beyond an occasional graduation speech containing the equivalent of a legal Hallmark card address. Scalia, however, has openly courted such events, often speaking before groups with strong conservative political agendas. Scalia has a following and these speeches appear to be an effort to maintain his base–like a type of judicial stump speech. However, justices are not supposed to have a “base” outside of Article III of the Constitution that gives them independence from political influence.

In fairness to Scalia, he is not the only one engaging in such questionable stump speeches or pandering to liberal and conservative bases. A few years ago, Justice Sandra Day O’Connor was accused of openly campaigning for the chief justice position in a series of speeches on hot-button issues like the death penalty. Recently, Justice Ruth Bader Ginsberg, along with Sen. Hillary Rodham Clinton (D-N.Y.), spoke to the American Constitution Society, a group created to offer liberal interpretations of constitutional law. Justice Clarence Thomas regularly appears before conservative groups, including a 2001 speech at the conservative American Enterprise Institute where he encouraged conservatives to join the fight in the on-going cultural war and not be deterred by notions of civility.

Scalia’s speeches have been a more serious problem. In 1996, he was criticized for giving a speech railing against the claimed constitutional right to die at a time when there were two euthanasia cases pending before the court. It was also such a speech last year that led to Scalia’s recusal from one of the biggest cases of this term: the constitutional challenge to the Pledge of Allegiance. Scalia gave a speech in front of a Religious Freedom Rally, where he effectively announced his intended vote on the case before it was even heard by the court. And a few weeks after this serious failure of judgment, Scalia gave another controversial speech to a different conservative group in which he lashed out at his colleagues for ruling against anti-sodomy laws.

This month, Scalia also faced intense calls for recusal after he went on a duck-hunting trip with Vice President Dick Cheney, despite the fact that Cheney is a named party in one of the cases that Scalia will hear this month. While Scalia may have been correct in not recusing himself, he showed a colossal lack of judgment in going on vacation with Cheney before the argument in the case.

It was not long ago that Scalia seemed almost a shoo-in for chief justice. Yet in a remarkably short period of time, Scalia has done irreparable damage to any claim for promotion. Ironically, Scalia’s greatest friends and fans may have sealed his fate. They could not resist inviting him to their events and Scalia appears unable to resist their invitations.

Despite my disagreement with many of Scalia’s decisions, he is an irreplaceable asset to the Supreme Court. He is a rarity. Scalia has a largely consistent and deep judicial philosophy on a court often populated with less than inspiring jurists. The current nomination process winnows out candidates who have had a single controversial thought in their lives and instead favors vanilla-flavored jurists with little intellectual substance.

Scalia can legitimately claim a legacy on the Supreme Court but, like former President Bill Clinton, he is frittering away that legacy due to a lack of self-control. He must decide whether he wants a legacy or whether he wants to be liked. An enfant terrible can be tolerated, even charming, in an academic setting, but it has no place on the highest court of the land.

LOAD-DATE: April 16, 2004 Chicago Tribune

16 thoughts on “Scalia and the Advent of the Celebrity Justice

  1. I am not sure where you are getting your information, but great topic.

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  2. The shooting occurred somewhere around 17:30 hours and 18:30 hours.
    ————————
    When did the bird fly, exactly? It’s important to speak with specificity.

  3. “Turley – who seems to think that chanting the word “torture” repeatedly substitutes for moral and legal argument – chiding one of his betters as in need of adult supervision.”

    Actually, JT has published quite a few scholarly pieces that make the ethical and legal arguments against torture. Just because you can’t bother to read them or – more than likely – understand them if you did doesn’t mean he doesn’t have a well reasoned and oft stated legal and ethical argument against the use of torture. Your statement also commits the logical fallacy of begging the question that Scalia is anyone’s “better”. Such logical fallacies are common tools of Internet propaganda trolls, those unable to argue in a proper manner, and/or the chronically stupid. Those three conditions are not mutually exclusive by the way. Many people think Scalia’s a moral reprobate and ideologically driven clown who is an embarrassment to the bench and bar unsuitable for duty as a traffic court judge much less a Supreme Court Justice. But that, like your seeming respect for the man so much you consider him other’s “better”, is just an opinion.

    So if you’ve got an argument for torture? Please feel free to come back and get your argument throughly dismantled like all torture apologists before you.

    As for your Scalia worship? Who someone admires says much more about them than about the object of their adoration.

  4. Scalia and the Advent of the Celebrity Justice
    Published 1, February 14, 2008 Columns , Constitutional Law , Justice , Lawyering , Politics , Society , Supreme Court 10 Comments

    Given the most recent public controversy involving statements made by Justice Scalia on torture, this prior column may be of some interest:

    HEADLINE: The high court’s enfant terrible

    Antonin Scalia appears to have every gift and advantage that a jurist could possess. He is brilliant, in robust health and has a personality so engaging that few (even among his critics) can resist liking him. Indeed, from the day he was appointed to the U.S. Supreme Court he seemed to lack only one essential element: adult supervision.

    The increasing list of controversies surrounding Scalia reinforces his image as the enfant terrible of the court: precocious, unpredictable and impetuous. This month, Scalia has been dealing with a combination of such episodes ranging from a recusal from one case, the near recusal from another and an accusation of strong-arm censorship.

    The latest controversy occurred during two speeches Scalia gave in Mississippi. Scalia often insists on no recordings at his speeches, including one controversial ban on television and radio recording at a speech when he received an award for supporting free speech. In Mississippi, however, no such rule was announced so two reporters proceeded to record the speeches, only to be confronted by a federal marshal demanding their tapes and then erasing them. This scene was made all the more bizarre by the subject of Scalia’s speech: the Constitution and the failure of people to have proper respect for its freedoms.

    This week, Scalia issued a rather belated apology to the reporters after a week of criticism, including calls in Congress for an investigation. Scalia insisted that he never personally ordered the destruction of the tapes. Scalia further stated that he was reconsidering his no recording policy at future speeches. In a letter to one of the reporters, Denise Grones of the Associated Press, Scalia defended the deputy marshal involved in the incident. Scalia explained that his insistence that the speech not be recorded was never publicly announced as intended and that “the marshals believed [with good reason] that the same policy was in effect.” Scalia vowed to be more careful in the future to ensure that announcements are made at each speech.

    The Scalia apology misses the point. First, he seems to believe that, if the announcement had been made, federal marshals would have the authority to seize or destroy the tapes. However, the use of a federal marshal in this fashion constitutes a form of censorship. Whether there was an announcement is irrelevant–the marshals had no authority to act in the matter. The marshal was present as part of a protective service detail, not Scalia’s personal praetorian guard. If Scalia is obsessed with such recordings, he must make arrangements with the host of the speech to enforce the rule and not use public personnel to carry out his private desires. Second, the greatest problem for Scalia has not been his ban on the recording of his speeches but the speeches themselves. Historically, many justices have refused to give any speeches beyond an occasional graduation speech containing the equivalent of a legal Hallmark card address. Scalia, however, has openly courted such events, often speaking before groups with strong conservative political agendas. Scalia has a following and these speeches appear to be an effort to maintain his base–like a type of judicial stump speech. However, justices are not supposed to have a “base” outside of Article III of the Constitution that gives them independence from political influence.

    In fairness to Scalia, he is not the only one engaging in such questionable stump speeches or pandering to liberal and conservative bases. A few years ago, Justice Sandra Day O’Connor was accused of openly campaigning for the chief justice position in a series of speeches on hot-button issues like the death penalty. Recently, Justice Ruth Bader Ginsberg, along with Sen. Hillary Rodham Clinton (D-N.Y.), spoke to the American Constitution Society, a group created to offer liberal interpretations of constitutional law. Justice Clarence Thomas regularly appears before conservative groups, including a 2001 speech at the conservative American Enterprise Institute where he encouraged conservatives to join the fight in the on-going cultural war and not be deterred by notions of civility.

    Scalia’s speeches have been a more serious problem. In 1996, he was criticized for giving a speech railing against the claimed constitutional right to die at a time when there were two euthanasia cases pending before the court. It was also such a speech last year that led to Scalia’s recusal from one of the biggest cases of this term: the constitutional challenge to the Pledge of Allegiance. Scalia gave a speech in front of a Religious Freedom Rally, where he effectively announced his intended vote on the case before it was even heard by the court. And a few weeks after this serious failure of judgment, Scalia gave another controversial speech to a different conservative group in which he lashed out at his colleagues for ruling against anti-sodomy laws.

    This month, Scalia also faced intense calls for recusal after he went on a duck-hunting trip with Vice President Dick Cheney, despite the fact that Cheney is a named party in one of the cases that Scalia will hear this month. While Scalia may have been correct in not recusing himself, he showed a colossal lack of judgment in going on vacation with Cheney before the argument in the case.

    It was not long ago that Scalia seemed almost a shoo-in for chief justice. Yet in a remarkably short period of time, Scalia has done irreparable damage to any claim for promotion. Ironically, Scalia’s greatest friends and fans may have sealed his fate. They could not resist inviting him to their events and Scalia appears unable to resist their invitations.

    Despite my disagreement with many of Scalia’s decisions, he is an irreplaceable asset to the Supreme Court. He is a rarity. Scalia has a largely consistent and deep judicial philosophy on a court often populated with less than inspiring jurists. The current nomination process winnows out candidates who have had a single controversial thought in their lives and instead favors vanilla-flavored jurists with little intellectual substance.

    Scalia can legitimately claim a legacy on the Supreme Court but, like former President Bill Clinton, he is frittering away that legacy due to a lack of self-control. He must decide whether he wants a legacy or whether he wants to be liked. An enfant terrible can be tolerated, even charming, in an academic setting, but it has no place on the highest court of the land.

    LOAD-DATE: April 16, 2004 Chicago Tribune
    =======================================
    What is freedom of speech? Ask a Waukesha Circuit Court Judge. Ask a Milwuakee Circuit Judge as well. Then ask a West Allis, WI Municipal Court Judge as well. Oh, wait, the municipal court judge comes first. You’re guilty. You’ll get the same answer.

  5. I’ll simply note, for the 2 or 3 people who might see this late comment, that it’s pretty funny to see the TV camera-whore Turley – who seems to think that chanting the word “torture” repeatedly substitutes for moral and legal argument – chiding one of his betters as in need of adult supervision.

  6. And one last time (I promise you)

    Watts v Indiana, 338 U.S. 49 (1949)

    Mr Justice Frankfurter announced the judgment of the Court and an opinion in which Mr. Justice Murphy and Mr Justice Rutledge [two sainted souls] join: [excerpts follow]

    “There is torture of mind as well as body; the will is as much affected by fear as by force. And there comes a point where this Court should not be ignorant as judges of what we know as men. See Taft, C.J., in the Child Labor Tax Case, 259 U. S. 20, 37.”

    “A confession by which life becomes forfeit must be the expression of free choice. A statement, to be voluntary, of course need not be volunteered. But if it is the product of sustained pressure by the police, it does not issue from a free choice. When a suspect speaks because he is overborne, it is immaterial whether he has been subjected to a physical or a mental ordeal. Eventual yielding to questioning under such circumstances is plainly the product of the suction process of interrogation, and therefore the reverse of voluntary. We would have to shut our minds to the plain significance of what here transpired to deny that this was a calculated endeavor to secure a confession through the pressure of unrelenting interrogation. The very relentlessness of such interrogation implies that it is better for the prisoner to answer than to persist in the refusal of disclosure, which is his constitutional right. To turn the detention of an accused into a process of wrenching from him evidence which could not be extorted in open court, with all its safeguards, is so grave an abuse of the power of arrest as to offend the procedural standards of due process.”

    Now comes the heart of Frankfurter’s analysis:

    “This is so because it violates the underlying principle in our enforcement of the criminal law. Ours is the accusatorial, as opposed to the inquisitorial, system. Such has been the characteristic of Anglo-American criminal justice since it freed itself from practices borrowed by the Star Chamber from the Continent whereby an accused was interrogated in secret for hours on end. See Ploscowe, The Development of Present-Day Criminal Procedures in Europe and America, 48 Harv.L.Rev., 433, 457-58, 467-473 (1935). Under our system, society carries the burden of proving its charge against the accused not out of his own mouth. It must establish its case not by interrogation of the accused, even under judicial safeguards, but by evidence independently secured through skillful investigation. “The law will not suffer a prisoner to be made the deluded instrument of his own conviction.” 2 Hawkins, Pleas of the Crown c. 46, § 34 (8th ed., 1824). The requirement of specific charges, their proof beyond a reasonable doubt, the protection of the accused from confessions extorted through whatever form of police pressures, the right to a prompt hearing before a magistrate, the right to assistance of counsel, to be supplied by government when circumstances make it necessary, the duty to advise an accused of his constitutional rights — these are all characteristics of the accusatorial system and manifestations of its demands.”

    “Protracted, systematic and uncontrolled subjection of an accused to interrogation by the police for the purpose of eliciting disclosures or confessions is subversive of the accusatorial system. It is the inquisitorial system without its safeguards.”

    Now this is the common-law, due process accusatorial system that the distinguished jurists of the previous generation left us.

    And which if Scalia had his way, would be dismantled under the name of State security, and a new edifice of inquisitorial law erected.

  7. For those who think Scalia is a second Frankfurter, we offer the following:

    Rochin v California, 342 U.S. 165 (1952)

    Mr. Justice Frankfurter delivered the opinion of the Court: [excerpts follow]

    “Applying these general considerations to the circumstances of the present case, we are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically. This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents – this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.”

    “To attempt in this case to distinguish what lawyers call “real evidence” from verbal evidence is to ignore the reasons for excluding coerced confessions. Use of involuntary verbal confessions in State criminal trials is constitutionally obnoxious not only because of their unreliability. They are inadmissible under the Due Process Clause even though statements contained in them may be independently established as true. Coerced confessions offend the community’s sense of fair play and decency. So here, to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us, would be to afford brutality the cloak of law. Nothing [342 U.S. 165, 174] would be more calculated to discredit law and thereby to brutalize the temper of a society.”

    Now compare that jurist with the current fellow and his talk of “slaps to the face” in the BBC interview.

  8. Oops, I forgot to add in my previous post that I KNOW we’re stuck with Scalia until he dies, but I don’t have to be happy about it.

  9. Regarding AS, I’m in complete agreement with D.W. Anyone who can consider torture, that peculiar form of barbarism, to be a “good” thing isn’t someone I want on the USSC. And I definitely with Mr. Keith Olbermann’s placing him as the “Worst Person in the World” on last night’s COUNTDOWN.

  10. Now Stevens, there is someone to admire.

    So far as Scalia goes: “nihil magnum nisi bonum” decidedly applies.

  11. To add to DW’s comments: Thomas and Scalia have only been rigorous about their judicial philosophy when it suits their polito-social goals. They completely abandoned their philosophy in Gore v. Bush. As did O’Connor, maybe most notably.

  12. Consistency of judicial philosophy was never admirable when the philosophy bore jurisprudential fruits so repellent as has been Scalia’s legacy.

    He and Thomas are two of the worst Justices for the legal values I hold dear that we have seen since the 30’s. He is smart, but no second coming of a Frankfurter.

    Sorry for the ipse dixit, but the man and his chamber of eager climbers cared nothing for human life..so his taking up of torture doesn’t surprise.

    Goes well w/Thomas’s little exegesis on corporal punishment in Morse v Frederick.

    The jurisprudence of pain and punishment….we need to outgrow this kind of juvenile stuff.

    I know JT doesn’t agree with my comments above, but I really look at AS unfavorably.

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