Covering the Front and Back Pages of the Newspaper
January 2, 2004
LAW: Scalia, Misunderstood
I meant to get to this one when it ran in November -- this column by liberal legal commentator Michael Dorf criticizes Justice Scalia for writing "what he regards as parade-of-horribles dissents that risk becoming self-fulfilling prophecies." Dorf observes:
Why does Justice Scalia repeatedly characterize decisions from which he dissents in ways that will likely give ammunition to those with whom he disagrees, enabling them to extend what he regards as improper precedents even further?
Dorf concludes that the "problem" is that Scalia so fundamentally differs in his outlook from his colleagues as to regard their decisions "as not merely different from his own, but as fundamentally illegitimate." (Emphasis in original).
That's one way to put it, although I doubt that Scalia really believes that the cases are always that cut-and-dried. But I think that, at bottom, Dorf just doesn't understand Scalia's concept of the role of a judge, which is not "tactical" in any sense, but rather that a judge should be trying to derive the right answer to a question -- and should, when he sees his colleagues get it wrong, criticize them in the strongest terms. Admittedly, no judge - even Scalia - can avoid having his or her reasoning in reaching such decisions colored by policy preferences, but the point is that Scalia simply doesn't look at it as his job to do anything but give the answer to the question posed. And if that's impolitic or un-tactical, so be it; tactics and politesse are the job of legislators and litigants.