Antonin Scalia, Benchslaps, Constitutional Law, John Roberts, Politics, SCOTUS, Supreme Court

Righteous Indignation: Conservatives Benchslapping Conservatives

Ed. note: This is the latest installment of Righteous Indignation, our new column for conservative-minded lawyers.

On Monday, the Supreme Court decided City of Arlington v. FCC. The question before SCOTUS was whether courts must defer to a federal regulatory agency’s interpretation of a statutory ambiguity even when that ambiguity involves the scope of the agency’s authority — its own jurisdiction.

Justice Scalia wrote for the majority, holding that even in cases such as this one, agencies are entitled to the usual deference established in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. — aka Chevron deference. Chief Justice Roberts dissented, joined by Justices Kennedy and Alito.

The outcome of City of Arlington should be noteworthy to Court watchers — and conservatives in particular — for several reasons. First, the Scalia-Roberts split quiets the simplistic refrain that SCOTUS decides cases down rigid liberal-conservative lines. Second, it highlights an ongoing debate among conservative members of the Court about fundamental issues concerning the separation of powers and constitutional governance. Third, the Scalia and Roberts opinions demonstrate that, far from reserving their barbs for the left, conservatives can be pretty darn snarky amongst themselves.

So, let’s have a closer look….

As we enter the season of sexy 5-4 decisions, it’s worth noting some facts about SCOTUS. Last Term, the justices decided 44% of merits cases unanimously, 11% by an 8-1 majority, and 8% by a 7-2 majority. Only 20% of decisions in OT 11 split 5-4. All of these figures comport with percentages from other recent terms. In recent terms, an average of 66% of merits cases were decided by majorities consisting of at least seven justices.

It’s easy to forget how often justices agree. It’s also easy to forget how often, when justices disagree, they don’t always do so by simply lining up according to who was nominated by a Republican president and who was nominated by a Democrat.

The nose count in City of Arlington illustrates this point. The case was decided 6-3 — a relatively close vote, even if not an ultra-contentious 5-4. Justice Scalia, conservative flag-bearer, wrote the opinion for a majority that included fellow conservative Justice Thomas, but also liberal Justices Breyer, Ginsburg, Sotomayor, and Kagan. Chief Justice Roberts, himself of course a conservative, dissented from Scalia’s majority, bringing with him fellow Republican nominees Justices Kennedy and Alito. (Let us leave aside for the moment the question of whether Kennedy actually counts as a reliable conservative….)

The opinions in this case should remind us of fundamental divisions within contemporary conservative thought. Scalia, a former admin law professor (joined by Kagan and Breyer, the Court’s other two former admin profs), envisions a well-ordered system where agencies play nicely alongside Congress and the courts. In this case, he thinks the dissent would generate chaos by trying to distinguish between “jurisdictional” and “non-jurisdictional” statutory ambiguities. I guess that good fences might still make good neighbors, even if you have a sinking suspicion that your neighbor might occasionally try to build the fence a few inches over the rightful property line.

The Chief, on the other hand, paints a darker picture of an unbounded, unaccountable federal bureaucracy that will likely only become more dangerous if it is allowed to decide the scope of its own power. His argument may suffer from the lack of a clear, workable limiting principle for Chevron cases like this one. Nevertheless, the fact that he and two other conservative justices articulated their deep differences with Scalia’s majority signals that a real debate is afoot — one that crosses party lines.

Then there’s the snark amongst conservatives. First, there’s general cattiness in City of Arlington. On the Volokh Conspiracy this week, a mild kerfuffle erupted over Justice Scalia’s “really dumb footnote,” in which he jabs at petitioner CTIA’s “unpronounceable” name. In footnote 1, Scalia writes:

This is not a typographical error. CTIA—The Wireless Association was the name of the petitioner. CTIA is presumably an (unpronounceable) acronym, but even the organization’s website does not say what it stands for. That secret, known only to wireless-service-provider insiders, we will not disclose here.

This needless, un-clever footnote sounds like some exhausted and irritable Scalia clerk, half-blind from reading acronym-riddled briefs for the past eleven months, decided that he or she just couldn’t resist bitching about one more acronym and mistook his or her irritation for wit. Now, why that silliness made it out of a memo and into a final draft of an opinion without anyone else objecting suggests that clerks in the other five chambers who signed on must be (1) too damned busy with their own crushing work, (2) just as world-hating by now that this footnote actually seemed funny to them too, or (3) perfectly content to let Scalia look like a bit of a jerk. That secret, known only to SCOTUS clerks and their bosses, we will not disclose here.

Scalia directly pokes too at the dissenting conservatives. In footnote 4 of the majority opinion, Scalia offers the Chief a primer in the separation of powers:

THE CHIEF JUSTICE’s discomfort with the growth of agency power, see post, at 2–4, is perhaps understandable. But the dissent overstates when it claims that agencies exercise “legislative power” and “judicial power.” Post, at 2; see also post, at 16. The former is vested exclusively in Congress, U. S. Const., Art. I, §1, the latter in the “one supreme Court” and “such inferior Courts as the Congress may from time to time ordain and establish,” Art. III, §1. Agencies make rules [ . . . ] and conduct adjudications [ . . . ] and have done so since the beginning of the Republic. These activities take “legislative” and “judicial” forms, but they are exercises of — indeed, under our constitutional structure they must be exercises of — the “executive Power.” Art. II, §1, cl. 1.

Did Scalia write this footnote because the Chief might be unfamiliar with the text of Section 1 of Articles I through III of the Constitution? One need not agree with the dissent’s point that the modern administrative state’s quasi-legislative and quasi-judicial powers have run afoul of the Constitution in order to see that the dissent has probably, actually seen the underlying few lines of text. The thrust of their argument is that in practice we permit agencies to exceed their powers under the Constitution.

Since a theme here appears to be criticizing the reading skills of the dissenting justices, that brings us to footnote 5 of the majority opinion. Scalia writes:

The dissent—apparently with no attempt at irony—accuses us of “misunderstand[ing]” the question presented as one of “jurisdiction.” Post, at 5. Whatever imprecision inheres in our understanding of the question presented derives solely from our having read it.

This definitely has the vibe of “We get the question ‘cause we f**king read it. You clowns obviously didn’t do the former, but did you even do the latter?” Way to keep it classy.

While City of Arlington might not be the highest-profile case of the Term, it is an interesting one. Whether you find it heartening that SCOTUS isn’t always divided by partisan politics, you are intrigued by differing conservative views of the separation of powers, or you just like to watch conservatives be mean to each other, the case is worth a look.

Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. She has clerked on the U.S. Court of Appeals for the Fifth Circuit and worked as a researcher for multiple projects on the intersection of cognitive science and law, including Baylor College of Medicine’s Initiative on Neuroscience and the Law. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at

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