...Norman Pearlstine's new book about anonymous sources, Off the Record... lays out the long American tradition of the free press and then—smack in the middle of discussing the landmark libel ruling of New York Times Co. v. Sullivan—he tosses in quite a parenthetical. He notes that '(In an interview, Justice Antonin Scalia told me that given the chance, he would probably vote to reverse New York Times Co. v. Sullivan.)' That's it. Next graf. ...
This case represented a turning point in our speech law. While still hotly debated on the merits in law schools, it is 40-plus-year-old settled law. And while Scalia's certainly criticized the decision publicly before, it's quite something to see him allegedly going on the record to offer that he'd probably vote to overrule it, "given the chance." ...
I, too, have some problems with freewheeling discussions about reversing specific cases in advance. But in light of the court's recent term, I can't help but find Scalia's candor vastly preferable to the loaded silence of his colleagues.
Scalia has long been the exception to the silence rule. In 1996, with two euthanasia cases pending before the high court, he gave a speech claiming there was "no constitutional right to die." In 2003, he recused himself from hearing a landmark Pledge of Allegiance appeal (Newdow's case), probably because of a speech he'd given arguing that it had been wrongly decided by the court of appeals. Scalia knows a badly decided case when he sees one, and he just can't understand why he shouldn't get to say so. ...
This isn't to say that there aren't worrisome aspects to Scalia's candor. When justices announce in advance and in the abstract which cases they'd like to overturn, the idea that they decide matters on a case-by-case basis is shattered. Abstract discussions with reporters about which cases might be fun to overrule in the future not only undermine the principles of judicial humility and minimalism, they also suggest that the all-important requirements of standing—the need for an actual "case or controversy" is convenient legal formalism. It signals that the justices are operating according to some broad ideological agenda, rather than confining themselves to deciding cases.
But maybe some of the justices really are operating according to some broad ideological agenda. Maybe the new Roberts Court is in fact committed to overruling decades' worth of "bad cases." If Scalia is willing to confess to that kind of project, I'd rather hear the battle plans than not. It's precisely the sort of candor that has been most lacking at judicial confirmation hearings, where each nominee instead takes the fashionable line that precedent is all but sacred. ...
I've not always been totally kind to Justice Scalia, but more and more, I do enjoy his defiant public honesty. If the Roberts Court is poised for a protracted seek-and destroy mission, better to operate in Scalia's sunshine than in the dark.
It's been a very long time--more or less since 1938--since political liberals/progressives have had this much reason to fear activist courts, and the Supreme Court in particular, or to rethink their commitment to venerating the special legitimacy of judicial action (or the moral leadership provided by the Court). For me, the critical moment was 2000's Bush v. Gore decision; for many others, perhaps even more reluctant than I to face the turn of an era, the term just past did the trick.
There can be little doubt that the formalisms of the Court's conservative majority are empty of principle; they mostly provide cover for what is, indeed, a broad ideological agenda to remake our law (or, if you prefer, to return to the pre-New Deal dispensation, or that of a century ago). Despite the rhetoric of minimalism favored by Justices Roberts and Alito (eviscerating precedents without explicitly overruling them), there is no "judicial modesty" in this gang of four (mostly now five); they are out to wipe away the legacy of evolutionary progressive change that has characterized the past three generations of American life, since the Great Depression.
Much academic commentary is cloaked in elaborate institutional deference to the Court. I believe that deference is unwarranted, and increasingly counterproductive. When the Court acts in ways that are nakedly political, the legal professoriate should not pretend the imperial judiciary is attired in splendid finery. We should call it as we see it, in all its naked ugliness, and without the pretense that "law", as currently practiced by the majority of this Court, is beyond politics. There may be some room to debate the past (although persuaded by the realist critique, I was not a member of CLS, and was long reluctant to give up on law as a potential force for good, rather than primarily an instrument of oppression). But the present is blindingly clear to those who can read. It is past time to let the public in on the secret; this Court has hijacked the law as we have known it, and it is our obligation to say so.
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