Monday, December 13, 2004

"Scalia Dissents:" New Scalia Book.

A new book is out from conservative Regnery Publishing, Inc., titled Scalia Dissents: Writings of the Supreme Court’s Wittiest, Most Outspoken Justice, edited and with commentary by Kevin A. Ring, Esq. I just got a copy, and I commend attorney Ring for a job well done. Scalia Dissents is a highly readable introduction to Justice Scalia’s judicial philosophy. Ring selects and edits excerpts from Nino’s most representative opinions (not just dissents, though), and provides a non-legalistic discussion of Scalian jurisprudence. Ring omits many citations from his commentary, and Scalia’s edited opinions, to avoid clutter and to make the text more readable for non-lawyers. I highly recommend Scalia Dissents for lawyers and laypeople alike.

Scalia Dissents contains twelve chapters. Chapter one presents Scalia’s judicial philosophy in a nutshell. Axiomatic to Scalia is the rejection of a “Living Constitution” (ala Justice Brennan.) To Scalia, the “Living Constitution” movement permits judges to reject the plain text meaning of the Constitution, and opens the door for judicial interpretation that follows fashionable ideological whim. Noteworthy is Ring’s readable explanation of the distinction between Scalia’s “textualism/originalism,” and the “strict constructionism” embraced by conservatives, including President Bush. Citing to Scalia’s essay, A Matter of Interpretation, Ring writes:

where a strict constructionist might see the First Amendment as protecting “speech” and “press” and only activities that fit into one of these categories, Scalia says the First Amendment covers communication more generally. Thus, while a handwritten letter might not fall under “speech” or “press” for strict constructionists, he [Scalia] thinks such a letter is undoubtedly protected by the First Amendment. (Scalia Dissents at 9.)

A Scalian textualist/originalist may look to historical sources for guidance on word meaning, but would not use these materials to garner the Framers’ intent. Rather, Scalia looks for “the original meaning of the text, not what the draftsmen intended.” (See Matter of Interpretation at 38.)

Ring concludes the first chapter defending Scalia from popular criticism. Ring doesn’t hide his intense admiration for Justice Scalia, or his philosophical kinship with Nino. For example, in the introduction, Ring writes of something he calls a “Scalia moment.” When reading a Nino-penned opinion, that “moment” arises with “ a witty line or turn of phrase that makes you laugh aloud, an insight or observation that makes you nod your head in agreement, or a caustic barb that makes you wince for the target.” Ring wrote a recent (11/25/04) op-ed piece in the conservative Washington Times, arguing in favor of a possible Chief Justice Scalia. Ring has also appeared on several radio talk programs, describing himself as a Scalia Uberfan and admirer. If you’re looking for fuel to stoke the fire of burning hatred for conservatives, you won’t find it in Scalia Dissents. But hey, what do you expect?! Scalia Dissents is published by Regnery, the publisher of books like Shut Up & Sing, by Laura Ingraham, and Legacy: Paying the Price for the Clinton Years.

My only real gripe with Scalia Dissents is that I wanted Ring to provide more evidence to counter Scalia’s numerous critics. Ring does an admirable job arguing that Scalia consistently applies his textualist/originalist methodology, but I wanted more examples. He fends off the criticism that Scalia is really a stealth conservative judicial activist, hiding behind a veil of non-activism, by citing to Nino’s dissent in BMW, Inc. v. Gore, 517 U.S. 559 (1996)(arguing to uphold a state court’s $2 billion punitive damages award). Ring could discuss more instances where Scalia remains true to his textualism, even if it runs counter to conservative political opinion. For example, in Kyllo v. U.S., 533 U.S. 27 (2001), Scalia shocked the law enforcement community by holding that thermal imaging scans of a home constitute a search within the meaning of the Fourth Amendment. Scalia rendered Kyllo before the events of 9/11, but I believe he would still rule the same in our security-obsessed times. Ring only cites Kyllo once in a bibliography of Scalia’s opinions at the end of the book.

But in all fairness, Ring mentioned in a interview that he wants Scalia Dissents to be a “Scalia’s greatest hits.” And Ring does an admirable job of giving us Nino’s chart toppers. Chapters two through twelve are arranged topically, with brief comments and introductions to the well-selected Scalia opinions. Here’s the breakdown of topics and excerpted opinions:
Chapter Two: “Intepreting Laws,”P.G.A. Tour, Inc., v. Martin, 532 U.S. 661(2001) (dissenting);
Chapter Three: “Separation of Powers,” Morrison v. Olson, 487 U.S. 654 (1988) (dissenting);
Chapter Four: “Race,” Richmond v. J.A. Crosson Co., 488 U.S. 469 (1989)(concurring); Adarand Constructors, Inc. v. Pena,515 U.S. 200 (1995) (concurring); Grutter v. Bollinger, _U.S.__ (2003)(concurring & dissenting);
Chapter Five: “Abortion,” Webster v. Reproductive Health Services, 492 U.S. 490 (1989) (concurring); Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833 (1992)(concurring & dissenting); Stenberg v. Carhart, 530 U.S. 914(2000)(dissenting);
Chapter Six: “Death Penalty,” Callins v. Collins, 510 U.S. 1141 (1994)(concurring); Atkins v. Virginia, 535 U.S. 304 (2002)(dissenting);
Chapter Seven: “Religious Freedom,” Lee v. Weisman, 505 U.S. 577 (1992)(dissenting); Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993)(concurring);
Chapter Eight: “Gender Equality,” U.S. v. Virginia, 518 U.S. 515 (1996)(dissenting)
Chapter Nine: “Free Speech,” McConnell v. Fed. Election Comm’n., __U.S. __(2003)(concurring & dissenting);
Chapter Ten: “Non-Speech and Un-Free Speech,” Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991)(concurring); Nat’l. Endowment for the Arts v. Finley, 524 U.S. 569 (1998) (concurring);
Chapter Eleven: “Homosexuality,” Lawrence v. Texas, __U.S.__(2003)(dissenting)
Chapter Twelve: “Other Rights,” Cruzan v. Missouri Dept. of Health, 497 U.S. 261 (1990)(concurring); Troxel v. Granville, 530 U.S. 57 (2000)(dissenting).

Ring concludes Scalia Dissents with a short, utopian epilogue, titled “Scalia’s America.” In “Scalia’s America,” Ring writes, “freedom, democracy, and diversity would be ably protected by, among other institutions, courts that respect the rule of law.” I don’t disagree with the Scalian thesis that the judiciary occasionally usurps legislative power. Since Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803), however, courts have the authority to review the constitutionality of legislative action. As such, there will always be some judicial overstepping into the province of legislators. But, for the most part, judges do apply the plain-meaning text of statutes and constitutions to resolve real life legal disputes. One need not travel to a fictive “Scalia’s America” to find workaday judges respecting the text of laws as written.

In sum, Ring has thoughtfully selected and edited “the best of Scalia.” And Ring’s commentary is well-written in a pithy, unadorned style, reminiscent of Nino himself. Scalia Dissents belongs on the shelves of all those who admire Justice Scalia’s verbal craftsmanship and intellectual integrity.


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