I really like the Curmudgeonly Clerk. If I were looking for legal advice in areas that are within the Clerk's sphere of expertise, I would ask the Clerk and trust the advice I get.
Last week the Clerk ripped into Dahlia Lithwick for being a legal lightweight, here. Comments from me and from the author of Balasubramania's Mania followed (mine are in the comments section to the Clerk's original post). The Clerk responds here with a sensitive discussion of the limits of public legal commentary and an attempt to bolster the case against Lithwick.
The main problem I have with the Clerk's account is that the case against Lithwick's portrayal of Scalia's public cultural jeremiads has not been proven. The Clerk wants to claim first of all that it is a betrayal of journalistic accuracy to say that Scalia is more apt to speak on "controversial issues" than his fellow Justices. You don't need to do a word count of Scalia's public speeches to realize that the Clerk is making a strange claim. Scalia has a reputation for being a cultural warrior on and off the bench. He has earned that reputation, even reveled in it and tried to promote it himself.
Your answer to what counts as impassioned speech about a "controversial issue" will be of one type if you are inside the professional legal culture, and of another type if you are outside that culture. Outside of the professional legal culture, the only people who are excised about the use of "foreign sources of law" in Supreme Court opinions (and "use" here is a fluid term that encompasses many different actions), are nationalist anti-elitist and anti-court types who, it must be admitted, do have one foot in the mainstream. The only reason this issue has gotten any attention at all in the context of the Lawrence case, aside from the fact that Scalia called attention to it, is that it was Lawrence, for God's sake. But if the use of foreign sources of law is a controversial issue, it is surely a minor one and one that is confined to a small realm of politics, Robert Bork's attack on an international judicial elite included.
Not so with the separation of church and state. It should be recalled that Scalia's speech at Georgetown -- the one referenced in Lithwick's article -- dealt primarily with how mid-century liberals on and off the bench had ignored the fact that American law is based in a specifically Judeo-Christian heritage. Scalia's death penalty comments were in response to a hostile question from the audience. Scalia was there to argue that the separation of church and state has gone too far. Seems to me that you're missing the forest for the trees if you try to interpret Scalia's short remarks on the death penalty -- themselves subject to multiple interpretations as soon as you see that Scalia's conception of the judicial role is not the only issue here by far, even on his own account -- as the only interesting or controversial thing he said that afternoon. The Clerk's attempts to parse Scalia's comments on the death penalty with reference to a much-cited passage Scalia wrote on the judicial role miss the point. To continue the Aussie rules football metaphor, the Clerk has taken his mark on part of the field that is too far away from the goalposts to do much good, at least at this stage of the game.
The Clerk then tries to argue that comments by Justice Stevens about his aborted movement toward recusal in the affirmative action cases also indicate a willingness on the part of Stevens to engage in the same kind of public intellectual activity as Scalia. The sad truth, however, is that Stevens's remarks were only really interesting for those few folks who get excited about insider baseball on the Supreme Court. If you're on the inside, then what Stevens said might be crucial and controversial. If you're not, then. . .*yawn* Try the Stevens story on your family and see what kind of reaction you get! Lawyer families don't count.
No one should have to worry too much about establishing that Scalia is a vocal and controversial guy on and off the bench, and that this controversy could harm the Court. If the basic claim is that the Court's legitimacy hinges on widespread popular perception that the Court is somehow "impartial." Impartial is here understood to be more broad than the technical requirements of judicial ethics. Indeed, to the extent that you confuse the technical requirements with the broader notion of impartiality, you reveal yourself as a legal culture insider. Nothing wrong with that, but the interesting discussion has to be a broader one, and it's clear that Lithwick intended to make a contribution to that broader discussion.
I think that the account of Court legitimacy here is naive and probably wrong. I think that this account relies too much on high school civics accounts of the role of the Court plus a misguided faith that courts in general are important, indeed central, arenas of social progress, arenas within which the claims of the powerless and the downtrodden can be vindicated. But the Court-legitimacy-from-impartiality view is widespread, and you can't really rip into Lithwick for appearing to rely on it in her essay on Scalia.
I think the Clerk has scored a behind but not a goal.
