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?
One possibility is tactical. Justice Scalia may think that if he doesn’t point out the logical consequences of his colleagues’ decisions, somebody else will. Our nation faces no shortage of creative lawyers who know how to read a Supreme Court opinion for all it’s worth. Perhaps Justice Scalia reasons that he does his own causes no harm by skewering his colleagues with what he regards as the plainly undesirable consequences of their decisions.
But such tactics–if that is what they are–seem ill-advised. There is a world of difference between a lawyer arguing that a precedent entails some result and a Supreme Court Justice doing so. In the latter case–especially if the majority does not specifically respond to the dissenting Justice’s parade of supposed horribles–it is a plausible inference that the majority accepts those results as consequences of the principle it has announced (and may not even find them so horrible after all).
Ultimately, Justice Scalia’s pointed dissents in the Texas sodomy case and the Denver affirmative action case seem more the product of ill temper, than of careful tactics.
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.