II. WRITTEN OPINIONS vs. OFF-THE-CUFF TELEVISION INTERVIEWS
Chief Justice Roberts has boasted that his Court is unique because “[w]e give a reasoned explanation …We have to spell out in our opinions exactly why we’re doing what we’re doing…. Everybody else can look at it [sic].” On February 5, Justice Sotomayor chimed in, claiming that justices “completely explain to the public the basis of their decision.”
In truth, as Roberts and Sotomayor well know, “everybody else” and “the public” do not look at opinions. Most people do not even know how to find them. Thus, few in the public ever see or hear about the considered scathing assessments written by Justices Thomas and Scalia, in official published opinions. They hear biased media caricatures intended to ridicule; but they are unaware of the actual assessments.
The Overriding Value Judgment: Noble Ends Justify Dishonest Means
On television, Scalia vouches for all justices’ honesty and fairness, while Thomas gives them credit for “trying to get it right.” If this is insupportable, there is no basis for public trust and legitimacy accorded the Supreme Court – and it becomes easy to understand Scalia’s written objection to “unelected lawyers[’] policy-judgment[s]-couched-as-law,” widely criticized as judicial activism.
Chief Justice Roberts asserts that “[i]t’s really quite wrong to view it as we decide it, then we write an opinion to explain what we’ve decided.” This squarely contradicts Chief Justice Hughes and Justice Douglas, who asserted that opinion writing is a quest to rationalize ideological predilections.
In non-ideological cases, Roberts is probably correct; but surely not in those involving the most critical, and bitterly divisive issues, e.g.: abortion, religion, political speech, race, public safety from crime, the economy and economic freedom, national security and terrorism, education, etc.
Scalia rues that “constitutional adjudication consists primarily of making value judgments.”
Underpinning all others is the conviction that dishonesty is moral when advancing the “greater good.” Professor Graglia writes that “the most liberal-activist Justice,” Brennan, “never let law, fact, or logic stand in the way of a decision he wanted to reach.” Attorney Joel Jacobsen explains that, because Brennan “was committed to a vision of a nation ruled by judges[,] he viewed any sort of intellectual dishonesty as a justified means to that all-worthy end.”
Exactly! The end justifies the means for justices who are so deeply committed to their personal and political values that they have no scruples about misstating, distorting and rewriting the Constitution or any other law to the point of emasculation, even inventing their own law. In so doing, they often craftily turn crystal clear language into confused incoherence euphemized as “interpretation.”
Dishonesty about Clarity. In addition to asserting that “everybody else” can look at the Court’s “exact reasoned explanations,” Chief Justice Roberts declared that everybody can “understand” them. Justice Sotomayor added: “Every … majority opinion … carefully analy[zes] the case and why the end result was reached. Everyone fully explains their views.”
To use Justice Scalia’s expression, “sheer applesauce.” It is fanciful and/or disingenuous to claim that “everybody” can understand opinions, which are “fully explained.” Forget “everyone”! Even many justices and lower court judges have called high court opinions incoherent and incomprehensible. A “confused patchwork” exasperated Justice White. In 2007, Roberts himself decried the Court’s “dog’s breakfast of divided, conflicting, and ever-changing analyses” and, this year, he complained of an opinion giving police officers “no idea” what was required of them. Scalia protested “a mess—entirely of our own making” caused by replacing a “clear” statute “with a hodgepodge … hav[ing] no evident basis even in common sense… If this muddle [is] welcome … the world is mad.” In the last two years, Scalia scorched other justices for “sow[ing] further confusion” to the point of insanity, while Justice Thomas blasted justices’ refusal to provide “clarity to an Establishment Clause jurisprudence in shambles [that] has confounded the lower courts.”
Thus, to assert, with a straight face, that “everybody” can “understand” the court’s “full … reasoned explanations” illustrates the low value placed on honesty by many justices, including the Chief. Moreover, confusion and incoherence are sometimes deliberately used to advance ideological predilections.
Scalia and Thomas on Dishonesty
Understandably in their rarified atmosphere, Justices Thomas and Scalia can’t use charged words like “fraud,” “liar” or “dishonesty” to describe colleagues. But nearly two decades ago, Thomas came very close when he harshly faulted his fellow justices for using a “conjurer’s trick” to “hide” what they were really doing, engaging in “perva[sive]” “dissembling,” which “should not continue. Not for another Term, not until the next case, not for another day. The disastrous implications … are too … too damaging to the credibility of the Federal Judiciary.”
Although Thomas and Scalia usually don’t go that far, they go far enough. In last year’s ObamaCare case, so momentous that the Court devoted to it six hours of oral argument over three days (unheard of in modern times), they participated in a dissent accusing five justices of being “sophists” engaging in “verbal wizardry.” Days earlier, in a case continuing what Scalia long ago called justices’ “campaign against the death penalty,” Thomas and Scalia joined a strong dissent accusing fellow justices of making “false promises.” And years earlier, Scalia (joined by Thomas) attacked fellow justices’ “habit of disclaiming the … consequences of [their] … Constitution-making opinions. Each … abridgment of the people’s right to govern themselves is portrayed as extremely limited….”
When five justices seized from the elected branches significant control over national security matters, the orally effusive duo joined a dissent accusing them of perpetrating “constitutional bait and switch,” while Scalia wrote his own dissent (joined by Thomas, Roberts and Alito) again reproving the bare-majority for playing a “game of bait-and-switch … upon the Nation’s Commander in Chief,” as well as “just kidding,” when they gave their word in a prior case.
Rewriting, Arrogance, Usurpation and Illegitimacy Go Hand in Hand
Thus while Justices Thomas and Scalia largely avoid the ultimate taboo words, their thrust is clear. For many justices, often a majority, credibility is of little concern because the key to their judicial dictatorship and imperialism is fraud: false assurances and broken promises, misstating and making up law, dissembling, sophistry and sharp practices.
If the law means whatever justices want it to mean rather than what it actually says, if words have no meaning that can be relied upon (or no meaning at all), if promises mean nothing, if facts are ignored or suppressed – why then justices can do anything. And they do just that, with monumental arrogance in two respects. These “supremes” have supreme confidence in their own moral superiority. In turn, this inspires them to unabashedly grasp and exercise powers they do not have, trampling upon the domain of officials who do have those powers, illegitimately usurping, without Constitutional authorization, the functions of both the states and co-equal branches of the federal government.
In sum, judicial dishonesty, rewriting, usurpation, illegitimacy, arrogance and value imposition are inextricably intertwined. These motifs appear repeatedly in the writings of Thomas and Scalia.
The Dishonesty of Rewriting. Justices take two oaths to support and apply the actual Constitution and laws of the United States. They do not take an oath to rewrite laws conflicting with their political beliefs, write new laws or even apply laws they acknowledge do not exist. Indeed, John Marshall cited the oaths in justifying judicial review.
Yet during the televised interview in which Justice Scalia called his colleagues “honest,” he also complained about their “revising” and “rewriting” the Constitution – despite the fact that their only power is to “apply” it. It defies logic to say that justices who do this are anything but dishonest. They are fully aware that they have no authority to rewrite the Constitution, as evidenced by their repeated denials (e.g., by Justice Kagan) that they ever do any such thing. Even Justice Brennan claimed merely to be “interpreting” the Constitution in declaring that it prohibited capital punishment despite explicit written authorization in four clauses.
Scalia accuses such justices of convincing themselves that words mean whatever they want them to mean. In other words, they deny they are rewriting because they claim sincerity in assigning meanings to language that would be unrecognizable to its drafters.
The only way for this to be honest would be if such justices actually believe their own deceptions. But in that case, it must be remembered that self-deception is still deception.
Scalia and Thomas have repeatedly accused “fabulous” justices of rewriting the law and the Constitution. Judge Bork wrote a book with a title adapted from Justice Scalia’s wistful lament: “While the present Court sits, a major, undemocratic restructuring of our national institutions and mores is constantly in progress…. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize.” That is scarcely an expression of confidence that the other justices are honestly applying the actual Constitution.
Succinctly, Thomas accused justices of “not interpreting the Commerce Clause, but rewriting it.”
Arrogance and Values. Realizing they can get away with dishonest rewriting and outright disregard of the duly ratified Constitution and duly enacted laws, there is nothing to prevent arrogant justices from forcing their own idiosyncratic values upon an unwilling populace. Thus, Justice Scalia objects to “self-righteous” justices, “acting on [their] personal view of what would make a ‘ “more perfect Union, ” ’ … impos[ing their] own favored social and economic dispositions nationwide … [progressively narrowing the] sphere of self-government reserved to the people ….”
Some justices accept no limit. Scalia (joined by Thomas and Rehnquist) has chastised them for thinking that no issue, however trivial, is beyond their sense of superiority: “[U]nelected federal judges have been … illegitimate[ly] … usurping th[e] lawmaking power” of elected officials for decades. “This Court seems incapable of admitting that some matters—any matters—are none of its business.” Scalia (joined by Thomas) sarcastically criticized justices who “confront[ed] … an awesome responsibility … the solemn duty … to decide What Is Golf. I am sure that the Framers of the Constitution … fully expected that … this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them[.]”
Of course, what agonizes critics of judicial abuse is that justices have not confined themselves to the trivial. All too often, in service of their personal moral values, they have shanghaied the power to decide the gravest and most contentious issues. Consider a few examples.