Death and Justice Scalia

It is startling to find that Justice Scalia was frail, and perhaps he himself did not realize that this was so. He seemed so vital and dynamic, often maddeningly so if you didn’t agree with him. (I disagreed with him fairly often, while also admiring his bravura skill in legal argument, but this is not the occasion to revisit any of those disagreements.) A man as devoted to family as he was would not have gone on a solo vacation far from home if he thought he was in failing health. It is good to lead an active and productive and long life up till the very end, as he did, but I hope that he died in his sleep and did not have to know that he was dying alone.

No one knows what awaits us on some other plane after death. Justice Scalia, a devout and traditionalist Catholic, may have died with confidence in life everlasting. What Judaism says about this matter, according to one of my Reconstructionist synagogue’s rabbis, is quite unsatisfactory; that is, apparently the sages just haven’t sorted this one out. In the King James Bible, David says in the Twenty-third Psalm that he “will dwell in the house of the Lord for ever”; in the Reconstructionist prayerbook, he says only that “I shall come to dwell inside the house of The Eternal for a length of days.” 

But Justice Scalia’s death makes crystal clear what awaits us here. Within less than three hours of the news of Scalia’s death reaching the media, Senator McConnell had decided to go public with his objection to President Obama nominating anyone to fill Scalia’s seat, and the Republican candidates for President all concurred in their debate a little later that same evening. In other words, here on earth the living take note of the absence of the deceased, and proceed to business. The New York Times reports that official Washington “paused” yesterday to remember Justice Scalia, and that pause was respectful, but meanwhile life emphatically goes on.

Yet Justice Scalia will be remembered by many, and that certainly counts for something. He was, it seems, a gregarious man who travelled widely and spoke in many venues; his biographer will have a lot to do collecting the stories of what he said and to whom. I happened to meet him twice, once at Columbia Law School and once, more recently, at the banquet of the New York Law School Law Review, at which he was the featured speaker. Before his talk, Teresa and I went to say hello. He didn’t remember having met me before, which I thought was perfectly reasonable. But he went on to surprise us: he said something to the effect that he admired people who devoted their lives to law teaching, and recalled, self-deprecatingly, that he had felt he was growing bored in his last years of teaching, and I think he said that that weakened him as a teacher. Teresa and I felt he was very gracious to us that evening. His son’s remarks at his funeral make clear that Scalia saw himself as an imperfect person, a sinner like everyone else, and perhaps we encountered that humility that night.

I’ve read recently that he believed that he was waging a war of ideas, not a war against people. In his words, “I attack ideas. I don’t attack people.” That’s a distinction that isn’t always easy to adhere to, since it is people who hold ideas, and when ideas are attacked as silly or stupid, those who hold them not unreasonably suspect that they too are being assailed as silly or stupid. Justice Scalia’s dissents were often harsh, and I think that diminished his influence within the Court. But in principle the idea that one can sharply disagree about ideas, yet still respect and like the people with whom one disagrees, is a humane and democratic one. It must also be part of what enabled Justice Scalia to be such good friends with Justice Ginsburg.

I can’t resist adding that the distinction between ideas and those who hold them is also rather South African.  "Play the ball and not the man," Michael Corbett – the last chief justice of the old South Africa and a respected and quite progressive jurist -- urged, and that soccer metaphor made the same point. The more we play the ball, or in other words the more we engage with the ideas and reasoning of those with whom we disagree, the more we implicitly affirm that there are in fact right answers to our problems and that we are engaged in a good-faith effort, along with our adversaries, to find them. The more we affirm that there are right answers, in turn, the more we maintain that the legal (or moral) world rests on, or seeks, objective truth. Scalia certainly believed that there were right and wrong answers to legal questions; many of South Africa’s greatest lawyers and judges have believed that too. The fact that on many points Scalia and his South African counterparts today might have believed in almost diametrically opposite answers doesn’t prove that any of them were wrong in believing that right answers exist.

Anguish in the Supreme Court about the death penalty -- Part III

The opinion in Glossip v. Gross by Justice Breyer, joined by Justice Ginsburg, lays out their reasons for believing that the Supreme Court should address head-on the issue of whether the death penalty is constitutional in any circumstances. To my mind, the case the opinion makes is cogent. I think Breyer and Ginsburg are right to say, in particular, that a penalty applied so inconsistently, both failing to systematically punish "the worst of the worst" and on occasion likely falling on people who are actually innocent, can't be justified, especially outside the context of war. (War may be different, essentially because life is so often taken in war anyway. But the Guantanamo war crimes investigations and prosecutions have been so emphatically problematic that I am inclined to say that here too the arguments against the death penalty are persuasive.)

The impossibility of running a death penalty system fairly, reliably and consistently means that the death penalty should be unconstitutional. But it doesn't quite mean that it is unconstitutional.

Justice Scalia responds to Breyer's argument with this observation (among others): "It is impossible to hold unconstitutional that which the Constitution explicitly contemplates." (Scalia, J., concurring, at 2.) (Emphasis in original.) There's no disputing that both the Fifth and Fourteenth Amendment do "contemplate" capital punishment. The Fifth Amendment addresses the requirements for trial of a "capital ... crime," and both Amendments forbid the government from depriving anyone of "life" without due process of law.

But while the Constitution certainly “contemplates” the existence of capital punishment, no one claims that it mandates that capital punishment be one of the penalties American jurisdictions employ. Clearly, also, some things the Constitution did not contemplate have come to be part of our world. The Framers in 1787 did not contemplate an Air Force. Nor, I’ve read, did they contemplate (that is, expect the rise of) political parties.

Here’s one more example: The Framers did not anticipate the development of an economy that was so massively interconnected that the power to regulate interstate commerce, which they explicitly granted to Congress in the Constitution, could come to encompass the regulation of almost anything. Whatever the exact limits on a proper modern interpretation of the reach of the interstate commerce clause (a question still, and perhaps forever, under debate), the changes of the past two centuries – only dimly foreseen, if at all, by the framers, have added to congressional power and reduced state authority.

That last point is of particular importance here, because what has happened is not only that federal power has grown but that state power has contracted. That’s striking, because the Tenth Amendment of the Constitution can be said to “explicitly require,” not just “contemplate,” the preservation of state power.  The Tenth Amendment provides that: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This language, although its exact meaning becomes elusive as soon as it is carefully parsed, nevertheless plainly is asserting not only what the Framers “contemplated” but what they meant to mandate. Yet the authority of the states has in fact been reduced by the uncontemplated impact of social change, as transmuted into constitutional understanding. Clearly we can only see this evolution as constitutionally acceptable if we believe that the meaning of the constitution’s words can evolve over time – but I do believe that, and in fact believe that a constitution as hard to amend as ours can only remain meaningful over centuries of time if its words’ meaning can evolve with the circumstances they govern.

So I don’t think that what the Framers “explicitly contemplated” is necessarily constitutional today. Justice Breyer writes, and I agree, that “‘the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.’” (Breyer, J., dissenting, at 40.) (Emphasis added.)

But what Breyer says doesn’t directly address the question of how to read the Constitution if it “contemplates” two opposing things – in this case, the potential unconstitutionality and the assumed constitutionality of capital punishment. I want to turn to this question of what to make of a possible self-contradictory constitution in a coming post.

Anguish in the Supreme Court about the death penalty - Part I

Glossip v. Gross, the Supreme Court's latest encounter with the death penalty, confirms -- if any confirmation was needed -- how difficult an issue capital punishment is for the justices of the Court. The actual issue in the case was the constitutionality of a particular three-drug "protocol" used for execution by lethal injection. But the case also provoked several of the justices to a debate about the constitutionality of the death penalty itself, and I want to start with that.

Perhaps the most distressed of the justices is Scalia (whose separate opinion Justice Thomas joined). Scalia is so upset by the long dissent from Justice Breyer (with whom Justice Ginsburg concurred), in which Breyer suggested that the death penalty might in fact be unconstitutional in all applications, that he descends to insult. He declares that Breyer's opinion "is full of internal contradictions and (it must be said) gobbledy-gook." (Scalia, J., concurring, at 2.) While Scalia is known for epithets like this, this one is hard to defend: Breyer's opinion can certainly be criticized but it's a notably sober and thorough discussion.

Then, responding to Breyer's argument that the death penalty probably does not actually operate as a significant deterrent, Scalia argues that "[t]he suggestion that the incremental deterrent effect of capital punishment does not seem 'significant' reflects, it seems to me, a let-them-eat-cake obliviousness to the needs of others" (id. at 5), those who are more exposed to danger than the members of the federal judiciary are. That's an assertion not only of elitism - a familiar criticism from Scalia - but of a malign indifference to the needs of others.

Then, in the next paragraph, Scalia addresses Breyer's argument that the death penalty may be unconstitutional because of the long delays between sentencing and actual execution. Scalia, not unreasonably, blames this delay on the Court's own complex death penalty jurisprudence, developed over past decades. Then he writes: "Indeed, for the past two decades, JUSTICE BREYER [the capitals aren't for special emphasis - they're a Supreme Court convention] has been the Drum Major in this parade." (Id. at 6.)

Scalia, in short, finds Breyer's dissent just unbearable - and his short dissent makes that clear in ways that aren't just sharp but quite personal.

The other justices don't write that way, but as I'll try to show in coming posts, many of them are distressed too.

Preserving Obamacare with a prescription of common sense

It was a busy week for the Supreme Court, and a very good one for liberals.

But let’s not focus on human rights, including the profound and welcome decision to recognize a right to same-sex marriage. Instead let’s discuss statutory interpretation!

In the Affordable Care Act (Obamacare) case, Kingv. Burwell, the Court had to decide whether a provision of the statute, which allowed tax credits – essential for the overall plan’s viability – to be paid to a taxpayer who had purchased insurance through “an Exchange established by the State,” actually authorized tax credits not only for taxpayers in the states that did establish these Exchanges but also for taxpayers in the many states – a large majority – that did not. In those states, as the statute provided, the federal government had filled the void left by state inaction and established an Exchange itself.

So the precise statutory question was “does ‘Exchange established by the State’ mean “Exchange established either by the State or the federal government’”? It might seem obvious that the answer is "no" – the federal government is not a state. For Justice Scalia, the answer was obvious, and it was indeed "no." Scalia says that the Court's answer -- "yes" -- "is of course quite absurd, and the Court's 21 pages of explanation make it no less so." (Dissenting opinion at 1.) That's pretty sharp -- though not the sharpest language Scalia has ever used. 

Despite Scalia, six justices said "yes," in an opinion by Chief Justice Roberts. In fact the question wasn’t quite as obvious, even as a technical matter, as Justice Scalia believed. For example, as Roberts says, the statute “defines the term ‘Exchange’ to mean ‘an American Health Benefit Exchange established under section 18031.” Section 18031 is the section telling states to set up these exchanges, but the states weren’t obliged to do so, and another section, 18041, tells the Secretary of Health and Human Services to “establish and operate such Exchange” if the state doesn’t. Then, since “Exchange” is defined as an Exchange established under section 18031, and section 18041 tells the Secretary to establish “such Exchange,” actually the Secretary is being told to establish “an exchange … under section 18031,” which, again, is the section authorizing states to set up exchanges. So it’s possible to parse the language to say that the federal government has been instructed to set up state exchanges. (Majority opinion at 11-12.)

It turns out there are a number of anomalous sections like this. Perhaps the most striking is the one that says that all exchanges are to report to the IRS the information necessary for the calculation of each person’s tax credit – a provision hard to understand if in fact people who purchased insurance on federal exchanges couldn’t get any tax credits at all. (Majority opinion at 13-14.)

But the real point, I believe, is not these technicalities, though they help Chief Justice Roberts to establish that the statute has enough ambiguity to be open for interpretation. The real heart of the Court’s decision is evident in this penultimate paragraph:

            Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. [The relevant section] can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt. (Majority opinion at 21.)

Roberts appears to believe that where the constitution does not set the courts at odds with the other branches of government, then the courts and those other branches are partners in governance. This is an old idea, dating back to the “legal process” school of the mid-twentieth century. It is by no means a charter for unchecked, freewheeling judicial rewriting of the statutes enacted by Congress; there will surely be many, many cases where the clarity of a statute’s words overwhelms arguments for reinterpretation that are less cogent than those in the Obamacare case.  

But this case does indeed create a precedent for the proposition that language by itself, however seemingly clear, should not be understood in a way that “destroys” what Congress meant to do. To this extent Scalia is clearly right: this case “will be cited by litigants endlessly,” though I don’t share his belief that the result will be “the confusion of honest jurisprudence.” (Dissenting opinion at 21.)

In fact the case is already not unique – this is at least the third decision Roberts has written or joined in the past two years in which the Supreme Court has departed from what arguably was the clear import of statutory words if read by themselves. The earliest  was Bond v. United States, decided in June 2014; there the Court decided, in an opinion written by Roberts, that a woman’s effort to cause a romantic rival to “develop an uncomfortable rash” by putting “two toxic chemicals” on the rival’s doorknob did not amount to the use of a “chemical weapon.”  The next was Yates v. United States, decided in February 2015, in which the Court held (though without a majority opinion) that a statute aimed at financial fraud, one of whose provisions punished the destruction of a “tangible object” with the goal of interfering with a federal investigation, did not cover the destruction of illegally-caught oversize fish.  The Supreme Court appears to be experiencing an epidemic of common sense!

These common-sense decisions reject an alternative approach that almost taunts Congress for its imprecisions. Instead, they tell us that we can, at least broadly, understand what Congress seeks – despite the skepticism with which some have come to greet this proposition. Just as clearly, they say that when we understand it we should support it (of course within the bounds of the constitution) even if the words Congress used don’t readily lend themselves to such a supportive reading. 

Thank goodness.