The Ironies of the Law

Not mentioned in accounts of Trump's statements calling for prosecution of flag burners is the concurrence of the late Justice Antonin Scalia in Justice Brennan's majority opinion in Texas v. Jackson, the 1989 flag-burning decision. Scalia did not write himself but apparently supported this decision in one of the occasional instances of his libertarian spirit emerging from his usual originalism which generally was synonymous with conservatism. This put him at odds in that court with dissenters Rehnquist and Stevens, both of whom in this instance put patriotism above freedom of expression. 

We also have been invited to review Scalia's majority opinion in D.C. v. Heller, the gun rights decision. I suggest that if you place Scalia's text up against Stevens's dissent, which was the principal dissent in the case, Scalia's analysis of the history of 2nd Amendment interpretation comes up as thin and unconvincing compared to Stevens's solid presentation of more than 200 years of clear understanding that was now being ignored. Some of Scalia's partisans have compared his majority opinion in this case to Breyer's dissent, which called for balancing. I find myself in agreement with the critics of balancing, for Scalia did have that right in arguing that any time a judge calls for use of a balancing test, the balance seems to come out along the lines the judge prefers.

While no one can doubt Scalia's clear conservatism, his libertarian streak makes me feel that the way Supreme Court justices now are selected, especially by conservative, i.e., Republican, presidents, makes it less likely that we will have strong-minded justices who are not bound to one side or one theory. 

Obama's behavior in appointing or trying to appoint justices stands in stark contrast to the GOP practice. He selected Sotomayor and Kagan, who while clearly tending to emerge on the "liberal" side of the bench, are not entirely predictable in their views. Garland, of course, was the perfect nominee from the standpoint of those who want a fair, even-handed justice, who may have tilted slightly toward the progressive side but also whose temperament was tempered by his many years as a Justice Department attorney representing the government.

We are likely to get more predictable appointments like those of Alito or Thomas. Justice O'Connor reportedly was dismayed by Alito's being named to replace her; she sensed he was a doctrinaire conservative but she had precipitated the situation by adhering to the party loyalty rule of retiring during an administration of her party. The most egregious act in Alito's appointment was the appearance before the Judiciary Committee of a legion of Third Circuit judges rounded up by the late Chief Judge of that circuit, Edward Becker, who was an outright Republican even when on the bench.

Now we may get appointments from the somewhat notorious list of judicial conservatives put together by Trump's campaign. Given the partisanship that has now subsumed the process--Clinton and Obama tried to name justices closer to the center, which means that the center has moved rightward as Republicans named solid right-wingers: Breyer and Kagan, for example, are no Brennan or Marshall--we should expect to see judges in lockstep with right-wing opinion being named. 

We are also likely to be stuck with the practice of naming judges to the court rather than some others with legitimate practical experience gained from being legislators or practicing lawyers. O'Connor was the last legislator and Marshall the last justice with a distinguished background in practice.