Constitutional Interpretation

The media has toppled a barrel of digital ink on the issue of Justice Ginsburg’s insistence on retaining her seat on the Supreme Court. Above the Law has even mentioned it once or twice or thrice. Like any other conventional wisdom story emanating from inside the Beltway, someone raised the issue, Justice Ginsburg said “no,” and then scores of pages were written explaining how she was wrong. And now, as that’s played itself out, scores of pages are going to be written taking the stance that maybe Justice Ginsburg… isn’t wrong?

Well, she is wrong, and bucking the trend of conventional wisdom makes for fun thought experiments, but isn’t as helpful when it comes to discrete, short-term decision-making. The thinking is all too clever by half and should be heaved onto the bonfire of civil liberties Scalia has cooking in his mind….

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Over the last two decades, a dedicated Supreme Court bar has gained prominence, focusing on arguing the increasingly few cases before the justices each term. These lawyers face fierce competition in persuading clients to hire them, participating in a not-so-glamorous competition known in the industry as a “beauty contest.” At these lawyerly pageants, attorneys competing to take the case make their pitch and try to persuade the client that their firm is the best suitor.

In my new book, Unprecedented: The Constitutional Challenge to Obamacare (affiliate link), I go backstage and look at two of the most high-profile beauty contests in Supreme Court history: who would represent (1) the National Federation of Independent Business (NFIB) and (2) twenty-six states in their respective challenges to the constitutionality of Obamacare.

How did these litigants go about choosing their counsel? Which lawyers and law firms got passed over?

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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….

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Justice Antonin Scalia

In the light of the evolving standards of decency, somehow we at the Supreme Court, we Harvard and Yale lawyers, we somehow can perceive these evolving standards of decency because we learned all this stuff at Harvard Law School.

– Justice Antonin Scalia, joking about the justices of the Supreme Court bench and their ability to interpret constitutional law based solely on the prestigious law schools they attended.

If you’re trapped in the office on this Friday after Thanksgiving — or, just as bad, stuck at a distant relative’s house with nothing to do — Professor Hadley Arkes of Amherst College and Chief Judge Alex Kozinski of the Ninth Circuit are here to help.

Last weekend, at the National Lawyers Convention of the Federalist Society, Professor Arkes and Chief Judge Kozinski debated whether natural law should inform constitutional law. Let’s check out their most interesting debate….

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Justice Antonin Scalia

Congress has its job and we have ours…. They can’t tell us to set aside rules of logic!

– Justice Antonin Scalia, speaking over the weekend at the National Lawyers Convention of the Federalist Society. He was responding to a question as to whether Congress could pass laws dictating how judges interpret the law.

(Additional highlights from Justice Scalia’s speech, after the jump.)

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This past Wednesday, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit delivered the Madison Lecture on Judicial Engagement at Columbia Law School. The lecture series, sponsored by the CLS chapter of the Federalist Society, brings distinguished jurists to Columbia to discuss topics relevant to the federal judiciary and the administration of justice.

(Perhaps we should put “at” Columbia Law in quotation marks; Judge Posner actually appeared via video conference. That shouldn’t surprise, coming from a judge who lists The Matrix as one of his favorite films.)

In his talk, entitled “How I Interpret Statutes and the Constitution,” Judge Posner was his usual candid self. He offered commentary on two recent books about statutory and constitutional interpretation — books that he’s not a fan of.

Yes, readers. There will be benchslaps….

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Justice Scalia (left) and Judge Posner

Responding to a Supreme Court Justice who calls one a liar requires special care in expression.

– Judge Richard Posner, in a cover email introducing his written response to Justice Antonin Scalia’s recent “You lie!” accusation.

(More about this tiff, which we’ve been covering quite closely here at Above the Law, after the jump.)

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Justice Scalia (left) and Judge Posner

I’m not going to get into this whole thing written for a glossy magazine.

– Justice Antonin Scalia, responding to a question about his thoughts on Judge Richard Posner’s somewhat critical review, in the New Republic, of the justice’s new book, Reading Law (affiliate link).

(We attended Scalia’s talk, which took place this afternoon and was sponsored by the New York City Lawyers Chapter of the Federalist Society. Additional highlights from the eminently quotable justice’s remarks, after the jump.)

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Justice Scalia (left) and Judge Posner

Over the past few months, Justice Antonin Scalia and Judge Richard Posner have been trading benchslaps. The most recent clash got going a few weeks ago, when Judge Posner wrote a harsh review for the New Republic of Justice Scalia and Bryan Garner’s new book, Reading Law (affiliate link).

Scalia surrogates rushed to the justice’s defense. One of his former clerks, Ed Whelan, wrote a series of posts for the National Review’s Bench Memos blog in which he criticized the Posner review. Justice Scalia’s co-author, Professor Garner, also responded forcefully to Judge Posner (who in turn responded to Garner, again in the New Republic).

But the justice himself remained silent on all of this. When we reached out to both judges about the apparent tiff, Judge Posner denied any personal animosity, but Justice Scalia declined to comment.

Now Justice Scalia has broken his silence. And His Honor seems none too happy with Judge Posner’s book reviewing skills….

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