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The Originalist Sins of Justice Scalia

All human beings are seething cauldrons of bias and prejudice based on both rational and irrational reasons. Those of us who have been honored to wear the other black robe (as judges rather than priests) are not exceptions to the rule that children are taught biases from a very young age and then roll though life gathering more biases as they go.

What is supposed to distinguish the job of judging is an ability to set aside bias and decide cases on neutral principles. That is, when a principle leads to a result we like, it should also apply to results we do not like. Every legal sword has at least two edges.

This is why I was incensed in 2000 when the U.S. Supreme Court wrote an opinion in Bush v. Gore that offered up an interpretation of the equal protection clause of the 14th Amendment that was, to put it kindly, innovative.

The result of that new interpretation was to stop the state of Florida from recounting ballots. Bush v. Gore made George W. Bush the fourth POTUS in history to win the White House after losing the election. Al Gore won the 2000 election by ballot totals but Gore lost the only election that counted, 5-4. Bush’s name went on the short list of fortunate losers who served anyway: John Quincy Adams (Andrew Jackson won in 1824), Rutherford B. Hayes (Samuel J. Tilden won in 1876), and Benjamin Harrison (Grover Cleveland won in 1888).

After coloring outside the equal protection lines to which practicing lawyers were accustomed and tacking Al Gore on the bottom of the list of popular vote winners who lost the election, the SCOTUS had the gall to admonish the Bar that Bush v. Gore could not be used as precedent in future equal protection cases. A foolish consistency is the hobgoblin of little minds, I guess, and the big heads had decided that George W. Bush should be POTUS.

The just departed Justice Antonin Scalia was rightly criticized for being part of the farce that was Bush v. Gore. He has also been criticized—with less convincing reason---for not being consistent in his claim that the Constitution is a “dead document” and acquired all the meaning it can have the day it was ratified.

Scalia’s inconsistency can be demonstrated, but it comes not so much from Scalia’s troglodyte politics as from the goofy idea that 21st century problems can be addressed rationally with 18th century solutions. Originalists hold that every judge required to hear modern disputes about an old document has to examine the issue as if he or she were in the 18th century looking forward rather than in the 21st century looking back. Reasonable people can differ about what that vantage reveals but the attempt is absurd on its face.

This is why the argument that textualism or originalism leads to more consistent outcomes is a load of bull, as is the argument that it fences out individual biases.

We who are given the task of deciding other people’s disputes, it seems to me, have a duty to account for our biases. To the extent we can, we should cite neutral principles and apply them evenhandedly whether or not we like where they lead in a particular case.

Scalia’s bias worked in favor of Indians in the Baby Veronica case, because he just could not get his head around the government taking a child away from her biological father for a reason not having to do with abuse. In oral argument, Scalia interjected, “He’s the father!”

Scalia was fairly consistent in his reading of the First Amendment, which any textualist has to notice begins, “Congress shall make no law…” He read that to mean no law that makes disrespecting the U.S. flag a crime and no law saying people can’t criticize U.S. policy in profane terms at the funeral of a fallen G.I. No law.

For the record, I do not hold with Justice Scalia’s theory of interpreting text, and my own methods would have acquitted the flag burners but convicted the Westboro Baptist Church. This does not mean I think burning the flag is a good idea or that I hate the Westboro Baptist Church enough to torture the First Amendment to the end of striking a blow against them.

All judges fall back on analogy and analogy introduces wiggle room and provides an entry point for personal values. While I consider myself an “absolutist” on the First Amendment and the phrase “no law” does not seem to me ambiguous, I am not allowed to ignore the numerous exceptions that were recognized before I was born.

What this means to me as a judge is that in a First Amendment case I will recognize the ambiguities introduced into “no law” that bind me. If I were sitting on a multi-judge court that had the authority to overrule precedent, I would argue for doing so.

If forced to rule against free speech, I would write an opinion as narrowly as possible, demonstrating why I have no choice, and probably air my reasons for disagreeing with the outcome on which I’m about to sign off.

It’s simply not the case that judges get to decide whatever pleases them. Fidelity to the law is not an open question, but what the law requires in a particular case is.

The Fourth Amendment, banning “unreasonable” searches and seizures, is more difficult from Justice Scalia’s theoretical position because technology has changed even more than habits of speech. A very old but important Fourth Amendment case involved law enforcement tapping a public phone booth without a warrant.

(For our younger readers, a public phone booth used to be a coffin sized box where a coin operated device substituted for the phone in your pocket, less the ability to reach the Internet because there was no Internet. It was also a place for Superman to change clothes back when you did not show your underwear in public.)

So, what does a document that died in 1788 say about tapping telephone booths without a warrant? It’s clear the document prefers that law enforcement officers get a warrant before a search or seizure. It’s just as clear that getting a warrant in advance of every search or seizure is not possible and the document does not require that.

I agree with Scalia that cops should have to get a warrant to attach a GPS tracker to your car or to use an infrared scanner on your house. I just disagree that the reason is the opinion of the people who ratified the Bill of Rights. I don’t think the people who ratified the Bill of Rights had an opinion one way or the other about infrared scanners or GPS trackers.

The closest analogy would be if your horse kept a journal of where it took you. Could law enforcement seize the horse’s journal without a warrant? Even a literate horse does not get you there, though, because a journal would not locate you in real time like a GPS tracker would. Still, I think Scalia did the right thing regardless of whether a journal keeping horse ever crossed his mind.

In another case with broader social import, Scalia was with the majority in a 7-2 decision that upheld the authority of the Environmental Protection Agency to regulate CO2 emissions.

There are originalists hardcore enough to say that every presumption lies against federal power and the idea that the Founders intended the federal government to have the authority to regulate a gas emitted by every campfire and every human exhalation is silly. As silly as the idea that the federal government could charge grazing fees for running cattle on public land or set aside land in Oregon to protect birds. Oops.

Scalia believed that the very existence of Indian tribal governments with sovereign powers in the 21st century is an anachronism, and he limited those powers every chance he got. But the people who wrote and ratified the Constitution in the 18th century had no doubt that tribal governments had sovereign powers.

A government might make a contract with a social club or a corporation, but a government can only sign and ratify a treaty with another sovereign. Treaties with Indian nations would continue to be signed and ratified for almost a hundred years after the Constitution became, in Scalia’s word, “dead,” fixed in meaning.

If that version of the dead documents argument could help Indians, the living documents argument could also be twisted to hurt Indians. It is a fact that many Indian treaties purport to govern a relationship that bears no resemblance to the one that existed when the treaty was made. Solving problems that arise under a treaty that does not account for change will require analogy and when analogies are formed, biases have room to roam.

Neither the text of the Constitution nor the text of a treaty that might be over 200 years old is going to decide modern disputes without a human judge to bridge the gap in time and account for what has changed.

If a proposed Supreme Court nominee has pursued a legal career in Indian country, chances are he or she will have a track record showing an attitude toward Indians and Indian sovereignty. Lawyers not from Indian country seldom have reason to encounter federal Indian law and so their biases are not likely to be visible.

Every judge---every human---has biases, so the question becomes what the biases are and how the candidate intends to deal with them. Indians differ from other people in the degree to which our lives are directly affected by SCOTUS decisions and in the fact that federal Indian law is like a separate sandbox where most lawyers never get to play.

When President Obama puts forward a nominee to replace Justice Scalia, Indians would do well to inquire of other Indians living in the nominee’s legal stomping grounds whether the nominee’s biases run for us or against us.

If there are no Indians in the nominee’s history, then the best we could hope for is a lawyer who understands the role of a judge and is so honest you could shoot craps with her on the telephone and is not afraid of learning history outside of legal history.

Her? Would Obama have the nerve to put up a third woman after having put two on the SCOTUS? Why not? There are nine seats and women occupy three. Three is an all time high, but four would still not make a majority. All I want is a smart person with no anti-Indian bias.