Scalia Needs to Recognize the Use and Abuse of Principle

As his nomination to become an associate justice of the U.S. Supreme Court moves into the confirmation stage, the speculation about Antonin Scalia continues to center on just how conservative he will be.

The question that should be asked, however, is what conservatism means in the context of the judicial politics of the court. A nominee’s judicial and political philosophy can undergo subtle but significant alterations once he or she is confirmed as a lifelong member of the court.

These changes can occur for a variety of reasons, ranging from interpersonal dynamics within the court to infectious shifts in the nation’s political climate. Changes can happen because of the impact of unanticipated issues. The questions facing a sitting justice may be far different from those envisioned by a nominee or by the President who proposed him or her.

Most important, because they are the most common, are the changes that occur as a new justice internalizes the full implications of his or her institutional role. It is a role that demands the most astute balance between the rule of law and the equity of particular litigants and cases, between principles of legality and the exigencies of final and unappealable power. It takes years to learn the meaning of this unique and awesome role.

Justices undergo subtle but important changes as they deepen and expand their appreciation of the institutional situation. When Chief Justice Warren E. Burger first came to the court, he wrote or joined a number of strikingly liberal opinions, ranging in subject matter from freedom of religion to school desegregation to abortion. As Burger matured as a justice, his votes became consistently more conservative and he has had to disavow his own earlier opinions. Burger’s development seems to have stemmed in part from his growing realization that his role as a chief justice was not simply that of a statesman whose purpose was to shape and conserve the heritage and prestige of the Warren Court. His role also required him to acknowledge and be true to his own conservative legal instincts and to attempt to find principled legal expression for them.

By contrast, we can expect Scalia’s growth as a justice, should he be confirmed, to follow a quite different path. Scalia will come to the court from a distinguished academic background. By profession and temperment, he is a man who deeply enjoys finding legal articulation for his conservative instincts. If his performance as a federal appellate judge is any indication, Scalia will be armed with a quiver full of pointed and steel-edged principles and he will not hesitate to use them, letting the cases fall where they may.

Scalia’s principles are fundamental and sophisticated and they will have far-reaching constitutional consequences. One is his belief that we must rid ourselves of the “obsession” that “the first line of defense against an arbitrary executive is do-it-yourself oversight by the public and its surrogate, the press.” This has led Scalia to the conclusion that the Watergate “expose,” ordinarily viewed as the clearest illustration of the importance of a vigorous press, was in fact “primarily the product of the institutionalized checks and balances within our system of government.”

Another such principle is Scalia’s conviction that courts should curtail their review of executive action, because “when all executive action becomes challengeable in court, the duty to ‘take care that the laws be faithfully executed’ is entirely converted from the ultimate responsibility of the President to the ultimate responsibility of the courts.”

One can expect Scalia, unlike Burger, to begin immediately upon confirmation to press for adoption of such considered and elaborated legal principles. But in so doing Scalia will be forced to test his principles against the cultural and political realities that surround the court. He will have to reconcile his view of the First Amendment with what Justice Sandra Day O’Connor recently stressed is a “basic assumption of our political system,” that “the press will often serve as an important restraint on government.” And he will have to accommodate his view of executive action with our tradition of agency accountability to law, a tradition that stretches back to 1803 and Chief Justice John Marshall’s decision in Marbury vs. Madison.

In this process of accommodation lies an insight central to the institutional role of a justice: that the Supreme Court sits not merely to announce the law but also to wield unappealable power of immense national consequence. This is a difficult insight for an intellectual justice, for it implies that while principles are necessary for the court’s decisions, they are not all that is necessary. Detached from wisdom and history and human empathy, abstract principles, however brilliant, can become brittle and merely academic. They can trammel and abuse power. As the late constitutional scholar Alexander Bickel once observed, “No good society can be unprincipled; and no viable society can be principle-ridden.”

This insight is as fundamental as it is dangerous. One hopes that, for all his intelligence and ideological intensity, it will not be lost on Justice Scalia.