Sunday, February 14, 2016

Justice Scalia, RIP

I will greatly miss reading his brilliant dissents, even if I often disagreed with them. Let me challenge Tom Van Dyke's post here on what I see as a bit of a conundrum with Scalia. Quoting Scalia:
 "If there was any thought absolutely foreign to the founders of our country, surely it was the notion that we Americans should be governed the way that Europeans are - and nothing has changed."
Yet, as Scalia concedes the Founders were more than willing to cite one form of foreign law, and that was the British Common Law which was predicated on notions of 1. the brooding omnipresence in the sky and 2. the doctrine of Stare Decisis, both of which Scalia, for the most part, rejects.

When I say "for the most part" I mean as it relates to Stare Decisis. As far as I can tell, Justice Scalia rejects Stare Decisis when none of the other (even very conservative Justices) do. Thus, when Scalia writes a majority or a dissent that has any other of the Justices joining him, he can't say "let's dump Stare Decisis." He can only do such when he writes a sole dissent.

But as far as I can tell from his books and articles (where he speaks on behalf of he himself only), that's what he would do in his first best world. The most Scalia can do when he writes an opinion with others joining him is downplay as oppose to categorically reject Stare Decisis.

But if Justice Scalia's first best judicial world were adopted then America would look, juridically speaking, from a procedural perspective, a lot more like those "other" European nations who are not "common law nations." (Having a "common law" legal heritage means you either are 1. Great Britain, or 2. a former British colony. Given how big the British Empire once was, this encompasses many nations.)

The other European "civil law" systems (and their former colonies) do not use Stare Decisis, but rely more on laws or codes passed by democratic majorities, not judicial precedent.

Justice Scalia wanted America's judicial system to look more "European" in that sense.


Tom Van Dyke said...

Until America had its own system of laws, English common law was our law. I think you'll find that Scalia believed that we now that have a comprehensive body of duly legislated laws by duly constituted legislatures, anything else--esp a "living constitutionalism" imposed by judges--is anti-democratic, anti-constitutional and anti-American.

The whole speech--tying living constitutionalism with invoking foreign laws--may be found here.

Tom Van Dyke said...

Better put, in his own words--and it has always been an American Creation blog tradition to cite source documents, a man in his own words instead of some blogger or historian's filters and paraphrases:

" those days, any common-law decision of one state would readily cite common-law decisions of other states, because all the judges were engaged in the enterprise of figuring out the meaning of what Holmes called "the brooding omnipresence in the sky" of the common law.

Well, I think we've replaced that with the law of human rights. Which is a moral law, and surely there must be a right and a wrong answer to these moral questions -- whether there's a right to an abortion, whether there's a right to homosexual conduct, what constitututes cruel and unusual punishment, and so on -- surely there is a right and wrong moral answer. And I believe there is, but the only thing is, I'm not sure what that right answer is. Or at least, I am for myself, but I'm not sure it's the same as what you think.

And the notion that all the judges in the world can contemplate this brooding omnipresence of moral law, cite one another's opinions, and that somehow, they are qualified by their appointment to decide these very difficult moral questions . . .

It's quite surprising to me, but I am sure that this is where we are.

And indeed we were in 2006, and in 2016, even more so.

Tom Van Dyke said...
This comment has been removed by the author.
Tom Van Dyke said...

Thus, when Scalia writes a majority or a dissent that has any other of the Justices joining him, he can't say "let's dump Stare Decisis."

Stare decisis, “to stand by things decided,” is a rule of prudence only, of stability. To change the understanding of the laws every year [or every morning] is a radicalism of the French Revolution sort. It does not end well--indeed it ends with Napoleon, who though a tyrant, was a tyrant of some great consistency.

Any reasonable man prefers to wake up under a tyrant of consistency before a capricious democracy any morning.

That Dred Scott, Plessy v. Ferguson, once ruled, are immutable law for all legal eternity is Scalia never said nor would. Stare decisis and the "rule of law' are not the same thing atall atall, especially under our Constitution.

Brian Tubbs said...

The death of Scalia removes from the High Court one of the jurists who most admired the Founders. A sad day for the nation.