Not dumping on anyone’s living tree: Scalia visits UK

3 July 2015 by Jim Duffy

Photo credit: Guardian

Last week’s decision of the United States Supreme Court in Obergefell v Hodges has been lauded across the world as a quantum leap for equality and human rights – “a victory for America”, according to President Obama. The Court held by a 5-4 majority that, pursuant to the 14^th Amendment, same-sex couples across the United States have a constitutional right to marry. You can read my colleague Matthew Flinn’s analysis of the ruling here.

The previous week, the Court had held by 6-3 in King v Burwell that tax subsidies that make health insurance affordable for those on low incomes could continue. In doing so, it preserved an important plank of the Obamacare programme, ensuring the ongoing provision of subsidies to some 8.7 million Americans who would otherwise be unable to purchase health insurance.

Last night, the loudest dissenting voice in those cases – Justice Antonin Scalia – was in London to take part in an event hosted by the Federalist Society, an organisation he helped set up in 1982. The Society describes its aims as seeking to “promote the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our [the US] Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”

Obergefell

While the debate was wide-ranging, there was no getting away from the dramatic backdrop created by Obergefell and King. It is not very often that a passage from a court judgment goes viral, but Justice Kennedy’s final paragraph in the same sex marriage case heralded a new chapter in the history of the United States:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Not everyone was enveloped in a warm and fuzzy feeling. Seated just along the bench from Justice Kennedy was the brooding presence of the Court’s biggest character, a judge known throughout America and the world for his conservatism, his staunch belief in constitutional originalism, and his mighty judicial wit.

Justice Scalia’s assessment of the moving thesis advanced by his colleagues was characteristically cutting, likening their prose to “the mystical aphorisms of the fortune cookie.” In the sort of tirade unlikely to be replicated in any dissenting judgment in our own Supreme Court, he attacked the “pretentious” style of the majority opinion, describing its content as “egotistic”, adding:

“One would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie.”

The same sex marriage case was the metaphorical red rag to the originalist bull, and Scalia pulled no punches in lamenting what he saw as his Court’s invasion into the rightful territory of Congress in a manner that had effectively ended a public debate on same sex marriage that he felt had “displayed American democracy at its best.” The opinion of his colleagues – Justices Kennedy, Ginsburg, Breyer, Sotomayor and Kagan – lacked “even a thin veneer of law”. Scalia issued his dissent “to call attention to this Court’s threat to American democracy.”

His exasperation was equally apparent in King, describing the majority’s reasoning as “interpretive jiggery-pokery” and “pure applesauce”. He called for Obamacare to be renamed “Scotuscare” in a nod to the Supreme Court’s acronym.

Was there anything left to say? A gathering of lawyers was about to find out during an interview conducted by Professor Adam Tomkins. Scalia was not here to talk about Obergefell specifically, but there was only one subject on the lips of those who awaited his arrival.

Originalism

It turned out he did have bit more to say. Scalia explained what he sees as the simple concept behind originalism – the idea that the Constitution’s meaning was fixed at the time of its enactment. It can be distinguished from the types of constitutional approaches seen elsewhere on the US Supreme Court bench, as well as in other jurisdictions such as Canada and the European Court of Human Rights which often apply a ‘living tree’ or ‘living instrument’ approach to determining what constitutions or conventions mean today.

Frustrated at constantly being asked to justify his approach, Scalia explained that “the justification is the Constitution”. He reads that Constitution “the same way I read Shakespeare”. ‘Living constitutionalists’ rarely have to explain their position, he said, but it is they who ought to justify the idea that “from this old document we can have all sorts of new things, like same sex marriage”. Scalia emphasised that the constitutional convention did not decide that the Constitution should have the meaning ascribed to it by members of the Supreme Court “from time to time.” Proponents of living constitutions, he explained, believe the constitution means whatever you think it ought to mean – “it’s a wonderfully seductive judicial theory.”

According to Justice Scalia, his colleagues were wrong to utilise the due process clause to ground their judgment that there was a constitutional right to same sex marriage. They had ascribed to that clause a “substantive due process” right, whereas all it really relates to is procedure. By doing so they had brought about a reality that Scalia believes a majority of Americans would be unlikely to support. (The evidence may be against him on that. In March 2015, a Wall Street Journal poll found that 59% of Americans were in favour of same sex marriage. This followed a Human Rights Campaign poll in February which found 60% support and 37% opposition and a CNN poll in the same month which found that 63% of respondents believed same-sex marriage was a constitutional right.)

‘Cross-sterilisation’

It was pointed out by Professor Tomkins that, as an originalist, Scalia finds himself in a judicial minority, not only on his own court, where only Justice Thomas shares his approach, but also when one looks at other constitutional courts around the world. It was suggested that international judicial dialogue might present an opportunity for the cross-fertilisation of ideas.

Scalia didn’t think so, referring to the process as “cross-sterilisation”. He sees himself as an American judge who applies the American constitution. He never cites foreign law, apart from “very old” English cases, and only reads foreign judgments – of the Supreme Court of Israel, for example – “when I want to be really shocked, when I want to see that my court is not really so bad after all.” On his exchanges with UK judges he said “I don’t think we have a whole lot to teach each other. I like meeting with your Lord Justices but I can’t say I’ve learned anything.” He continued:

If I’m [Justice] Stephen Breyer and I’m writing the Constitution then of course I would consult with these people. But I’m not writing one – I’m reading one, and your Justices are not going to help me on that question… If my job is to revise the Constitution and keep it up-to-date, then of course – the world is my oyster.

Somewhat unconvincingly, he dismissed Professor Tomkins’ point that the framers of the Constitution themselves visited other countries, France in particular, mingling among a global elite and learning from the likes of Montesquieu and Locke. For Scalia, the framers were really breaking away from what had gone before, “taking the best of what was available”. Equally, he made clear that when he visits other countries he does not evangelise as to the virtues of an originalist approach: “I don’t go to Canada and dump on their living tree.”

A UK Bill of Rights

The discussion ended with Scalia being asked whether he had any advice for David Cameron on the possible replacement of the Human Rights Act with a British Bill of Rights. Leaving aside questions of international judicial diplomacy, had such a question been asked of a British judge it is hard to imagine any substantive comment in response.

Justice Scalia clearly felt unhindered by such concerns: “You can’t do any worse than the situation you’re in now”. He pointed to the importance of being specific when agreeing to a Convention. He noted that sometimes Conventions contain some general provisions, which creates “the chance for mischief”. Alluding to the ECHR, he said that the worst of all worlds was a situation in which a country had a general convention with some international group interpreting its meaning – “so it’s not even your own people sending you to hell.” As bad as the situation is where a domestic court is interpreting a convention comprised of general provisions, “at least it will be visited on you by Englishmen… or Scots!”

American democracy under threat?

Reading Scalia’s dissent in Obergefell and listening to him speak last night, one cannot doubt that his concerns about what the case means for the democratic process in the United States are deeply held. The system of Presidential appointments and Senate ‘confirmations’ in the American system – often baffling to international observers – is always likely to lead to divisions along ‘political’ lines. Such divisions were particularly stark in Obergefell, with the Court’s ‘liberal’ wing of five forming the majority  and its four conservatives comprising the minority. It cannot be such a surprise that the link between the political and the judicial spheres of American government will, for better or worse, lead to a blurring of the boundaries between the two.

The debate that might ensue in the long Presidential election campaign ahead could feature similar concerns about ‘unelected judges’ to those seen in the UK. For some in a country as passionate about politics as it is deeply divided over them, the court in Washington might seem almost as foreign as the courts in Strasbourg and Luxembourg appear to some British voters.

The role of the US Supreme Court might, as a consequence, assume a prominence at the crux of political life that even it has not had before.