Wednesday, October 25, 2006

Rattling SABRs at Antonin Scalia

Alfonso SorianoI had the recent pleasure of teaching Chisom v. Roemer, 501 U.S. 380 (1991), in statutory interpretation, which of course is the most useful subject law schools can teach, even though most of them don't. This remarkable case reinforces my belief that Antonin Scalia, notwithstanding his reputation (in certain quarters, at least) as a meticulous judicial craftsman, is one of the most careless jurists ever to sit on the Supreme Court.

The issue in Chisom, stripped of all its complexities, hinged on the inclusion vel non of elected state judges within § 2 of the Voting Rights Act, which as amended in 1982 condemns voting rules whose effect is to abridge the right of members of protected classes. Section 2 is triggered when minority voters "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." The crucial question was whether the term representatives included elected judges.

Six Justices, led by John Paul Stevens, concluded that § 2 of the Voting Rights Act does indeed cover judicial elections. Justice Scalia violently disagreed. The portion of his dissent that caught my attention, 501 U.S. at 410-11 (some citations omitted), reads as follows:
There is little doubt that the ordinary meaning of "representatives" does not include judges, see Webster's Second New International Dictionary 2114 (1950). The Court's feeble argument to the contrary is that "representatives" means those who "are chosen by popular election." On that hypothesis, the fan-elected members of the baseball All-Star teams are "representatives" -- hardly a common, if even a permissible, usage. Surely the word "representative" connotes one who is not only elected by the people, but who also, at a minimum, acts on behalf of the people. Judges do that in a sense -- but not in the ordinary sense. As the captions of the pleadings in some States still display, it is the prosecutor who represents "the People"; the judge represents the Law -- which often requires him to rule against the People."
In the grand tradition of the great baseball fable, Casey at the Bat, I'd like to strike out Justice Scalia with three hard, fast ones:
  1. Strike oneIn construing the meaning of a term added to the Voting Rights Act in 1982, how could Justice Scalia defensibly rely on a single citation to a single dictionary that predated the disputed amendments by 32 years? Not to put too sharp a point on it, but a person born the year of the Webster's Second cited by Justice Scalia could have served as a legislative page to the Congress that passed the original Voting Rights Act. The entire affair reeks of dictionary-shopping. What an unseemly way to establish the "plain meaning" of a controverted term.

    Strike one.

  2. Strike twoYeah, yeah, the legislative and executive branches can be said to represent "The People," while the judiciary can be said to represent instead "The Law" . . . in a federal system that gives judges life tenure and salary protection in order to insulate them from the rough and tumble of electoral politics. But Louisiana in Chisom, along with many other states, chooses to have an elected judiciary. A healthy respect for the policymaking prerogatives of the states demands that states and their subdivisions be given the freedom to structure their judiciary without regard to the federal model. And a healthy respect for the Voting Rights Act, especially after that statute's overtly expansionist 1982 amendments, demands that judicial elections be held to the same standard as other elections under state and local law

    Strike two.

  3. Strike threeJustice Scalia's final misstep is, from the sabermetric perspective that permeates the entire Jurisdynamics Network, utterly unforgivable. How could Justice Scalia even think of suggesting that members of baseball's All-Star teams are not representatives? I have searched in vain for Major League Baseball's official word on this, but the word of Wikipedia makes an adequate substitute: "One of the most controversial aspects of the player selection process is a rule that each team has to have at least one representative on its league's All-Star roster." Not knowing the infield fly rule, the balk rule, or (gag, ack, choke) the designated hitter rule can be forgiven. Indeed, the despicable DH rule renders most of my students unable to appreciate the intricacies of the double switch and the sheer beauty of the suicide squeeze. But muff the All-Star Game's representative rule? Unbelievable.

    Strike three, Justice Scalia. Yer out!
With apologies to baseball's deep store of literary treasure, Justice Scalia's lame performance in Chisom inspires me to abuse Casey at the Bat
Somewhere in this favored land the sun is shining bright;
The band is playing somewhere and somewhere hearts are light,
And somewhere folks are laughing and somewhere children shout;
But there is no joy in Washington -- mighty Scalia has struck out.
Justice Antonin Scalia? Don't look for him in Cooperstown.


Anonymous Steve Lubet said...

you would preserve the original meter if your last line read,

"Mighty Nino has struck out."

10/25/2006 3:47 PM  
Anonymous Anonymous said...

I think either the ump needs glasses or we've got a hometown hack calling balls and strikes.

You might notice that Justice Scalia's reference to the baseball All-Star team referred to fan-elected members of the All-Star team. His analogy was meant to make the point that the players do not represent the fans, not that they do not represent their teams.

I don't have time to read up on your other points, but I'll add that in the same post in which you criticize Justice Scalia for using a 1950 dictionary for the definition of "representatives" (as if the meaning had changed between then and 1982), you cite Wikipedia to support your contrary definition of representatives without a hint of irony.

I hope you're a bit more evenhanded in the classroom.

10/26/2006 10:06 AM  
Anonymous Anonymous said...

Chisolm isn't the only time Scalia has badly butchered statutory interpretation re: the Voting Rights Act to achieve his desired ends -- see also Reno v. Bossier Parish Sch. Bd., 528 U.S. 320 (2000), discussed in McCrary, 11 Mich. J. Race & L. 275 (2006).

10/27/2006 1:18 PM  
Anonymous Anonymous said...

Scalia makes an analogy and gets a strike.
Breyer may as well be basing his wavering policy driven decisions on the representative advocate of the team he favors more. At least then there would be some consistancy.
your favorite back row student.

10/27/2006 7:16 PM  

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