An Empirical Test of Justice Scalia's Commitment to the Rule of Law

Article excerpt

On January 13, 2001, barely one month after the Supreme Court's decision in Bush v. Gore, (1) a group of 554 legal academics calling themselves "Law Professors for the Rule of Law" took out a full-page ad in the New York Times that essentially accused the Court's majority of being faithless to the rule of law. In full, the advertisement read:

   BY STOPPING THE VOTE COUNT IN FLORIDA, THE U.S. SUPREME
   COURT USED ITS POWER TO ACTAS POLITICAL PARTISANS, NOT
   JUDGES OF A COURT OF LAW

   We are Professors of Law at 120 American law schools, from
   every part of our country, of different political beliefs. But we
   all agree that when a bare majority of the U.S. Supreme Court halted
   the recount of ballots under Florida law, the five justices were
   acting as political proponents for candidate Bush, not as judges.

   IT IS NOT THE JOB OF A FEDERAL COURT TO STOP VOTES FROM
   BEING COUNTED

   By stopping the recount in the middle, the five justices acted to
   suppress the facts. Justice Scalia argued that the justices had to
   interfere even before the Supreme Court heard the Bush team's
   arguments because the recount might "cast a cloud upon what
   [Bush] claims to be the legitimacy of his election." In other words,
   the conservative justices moved to avoid the "threat" that
   Americans might learn that in the recount, Gore got more votes
   than Bush. This is presumably "irreparable" harm because if the
   recount proceeded and the truth once became known, it would
   never again be possible to completely obscure the facts. But it is
   not the job of the courts to polish the image of legitimacy of the
   Bush presidency by preventing disturbing facts from being
   confirmed. Suppressing the facts to make the Bush government
   seem more legitimate is the job of propagandists, not judges.

   BY TAKING POWER FROM THE VOTERS, THE SUPREME COURT HAS
   TARNISHED ITS OWN LEGITIMACY. AS TEACHERS WHOSE LIVES
   HAVE BEEN DEDICATED TO THE RULE OF LAW, WE PROTEST. (2)

The advertisement singled out Justice Scalia by name for specific condemnation

The charge of faithlessness to the rule of law leveled by the Law Professors for the Rule of Law was made in the context of a single case. An assessment of the charge in that context would require a detailed discussion of Bush v. Gore, and that is not my project here. Instead, I use the allegations of the Law Professors for the Rule of Law as an opportunity to take a broader view of Justice Scalia's nearly two decades on the Supreme Court. Specifically, l propose an empirical test of Justice Scalia's commitment to the rule of law measured over the course of his career. Of course, someone who is generally committed to the rule of law could lapse from the path in particular cases, and someone who is generally unconcerned about the rule of law might hew to it, either deliberately or accidentally, on some occasions. My focus is on Justice Scalia's general commitment to the rule of law, not to whether any such commitment was instantiated in Bush v. Gore.

The threshold problem with such an inquiry is that the charge, as it appears in the January 13, 2001 advertisement, is too vague to admit as either proof or disproof. The phrase "the rule of law" is one of the most contested concepts in the legal lexicon; there is serious question whether the term even admits of a verbal definition. (3) Indeed, in 1989, Justice Scalia wrote a short article about his philosophy of judging entitled The Rule of Law as a Law of Rules, (4) which never defined, either directly of indirectly, what Justice Scalia meant by (5) the rule of law. Accordingly, the 554 signers of the advertisement may each have had a different conception of "the rule of law" in mind when they accused Justice Scalia of disregarding it.

At least one member of the Law Professors for the Rule of Law, however, has specified a conception of the rule of law that permits empirical investigation. …