Justice Antonin Scalia spoke at an unrecorded event at Princeton University last week with Professor Robert George, a leading religious conservative. Though video of the event does not exist, George claims on his Facebook page that Scalia offered some unusual thoughts on how state and federal officials should treat decisions handed down by the Supreme Court:
[Scalia] declared that though Supreme Court rulings should generally be obeyed, officials had no Constitutional obligation to treat as binding beyond the parties to a case rulings that lack a warrant in the text or original understanding of the Constitution. Without prompting from me, he cited Lincoln’s treatment of Dred Scott. As it happened, I had a copy of Lincoln’s First Inaugural Address with me (you never know when you’ll need it), so I read Lincoln’s words on the case to the audience.
In case there is any doubt what Scalia meant by “case rulings that lack a warrant in the text or original understanding of the Constitution,” George says that the justice condemned two sets of cases in particular — the Court’s marriage equality decision in Obergefell v. Hodges and the Supreme Court’s cases preserving the separation of church and state.
George’s characterization of Scalia’s remarks, it should be noted, need to be taken with somewhat of a grain of salt. They are, after all, one man’s recollection of an event that was not recorded. Professor George is also one of the nation’s leading anti-gay activists, so he has an interest in shading Scalia’s remarks so that they appear particularly friendly to opponents of marriage equality.
Nevertheless, if George has not accurately characterized Scalia’s views, then he is putting quite a remarkable claim in the justice’s mouth. According to George, a sitting Supreme Court justice said that government officials who are not parties to a particular lawsuit have “no Constitutional obligation” to treat the rule announced by the Court in that case as binding upon them. That puts Scalia in similar company as Kim Davis, the anti-gay Kentucky law clerk who refused to issue marriage licenses in defiance of the Court’s Obergefell decision.
It’s worth noting that Justice Anthony Kennedy, the author of Obergefell, recently delivered a very different message to an audience at Harvard Law School. “The rule of law is that, as a public official in performing your legal duties, you are bound to enforce the law,” Kennedy said. He also strongly implied that officials like Davis should resign if they refuse to carry out their obligations under the Constitution. “Great respect, it seems to me, has to be given to people who resign rather than do something they view as morally wrong, in order to make a point.”
With regard to the substance of Scalia’s alleged remarks, it is true that President Lincoln did briefly discuss the appropriate balance of power between the Supreme Court and elected officials during his first inaugural. While Supreme Court decisions are “entitled to very high respect and consideration in all parallel cases by all other departments of the Government,” Lincoln said, “the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”
These remarks are widely viewed as a response to the pro-slavery Dred Scott decision, a decision that is almost universally viewed as the worst Supreme Court decision in American history. In the face of that precedent, it is not hard to imagine why Lincoln believed that the Court’s decisions should not be treated as gospel. President Franklin Roosevelt took a similar approach to a line of Supreme Court decisions that sought to impose a fairly rigid economically libertarian agenda on the nation at the height of the New Deal, despite no language in the Constitution authorizing such a judicially enforced agenda.
Nevertheless, it is important to understand exactly what is at stake when a president (or a justice) suggests that compliance with the Supreme Court’s decisions is optional. If public officials are not bound by Supreme Court decisions, than the Court ceases to exist as a meaningful check on state officials and on the other two branches of the federal government. It becomes nine lawyers who offer their opinions to the wind, and who can be listened to or ignored as public officials see fit. It also loses its authority to enforce provisions of the Constitution that government officials would rather not follow.
In fairness to Scalia, he does appear to concede that the “parties to a case” are bound by a court’s ruling. That means that Obergefell could conceivably be enforced against recalcitrant officials — provided they were all successfully sued in a lengthy and expensive series of lawsuits. As a practical matter, however, this would make enforcement of many decisions very challenging, and it would make enforcement of many other decisions impossible unless someone was willing to invest a significant amount of resources in litigating repetitive cases.
That’s very strong medicine, even if it may be medicine that is justified in the face of decisions like Dred Scott or the anti-government decisions resisted by Roosevelt — decisions that are now widely viewed as evil. Scalia, however, reportedly wants to prescribe this medicine to cure a decision that allows Americans to marry the person that they love.
Update:
In a condescending blog post, Florida International University law professor Howard Wasserman claims that Scalia’s apparent framework is innocuous because “lower courts are bound by the Court’s judgments” and therefore officials like Kim Davis will still be bound by lower court decisions applying Supreme Court precedents — although he ultimately does not disagree with ThinkProgress’s conclusion that the process of bringing new lawsuits in federal district courts to enforce compliance with a Supreme Court decision that people like Kim Davis do not wish to follow is a “complex and potentially expensive” process.
It is far from clear, however, that the balance of power between judicial and other officials that Scalia suggested in his conversation with Professor George is as benign as Wasserman suggests. George, it is worth noting, is a very prominent conservative scholar — indeed, he is arguably the most prominent conservative Catholic scholar in the nation. Professor George coauthored a book that formed much of the backbone of the arguments proponents of marriage discrimination presented to the Court in their failed efforts to defend this discrimination. He also co-authored a statement pledging civil disobedience to “any rule purporting to force us to bless immoral sexual partnerships, treat them as marriages or the equivalent, or refrain from proclaiming the truth, as we know it, about morality and immorality and marriage and the family.” It is a testament to George’s influence that this statement was co-signed by several Catholic cardinals and archbishops, including the archbishops of New York and Washington, DC.
In addition to calling for civil disobedience as an appropriate response to marriage equality, George has very particular views about Lincoln, Dred Scott, and Obergefell. In a “call to action” issued by George shortly after the Court’s marriage equality decision, the Princeton professor claimed that “Obergefell is not ‘the law of the land.’ It has no more claim to that status than Dred Scott v. Sandford had when President Abraham Lincoln condemned that pro-slavery decision as an offense against the very Constitution that the Supreme Court justices responsible for that atrocious ruling purported to be upholding.” The call to action also instructs “officeholders to reject Obergefell as an unconstitutional effort to usurp the authority vested by the Constitution in the people and their representatives.” It instructs presidential candidates to “refuse to recognize Obergefell as creating a binding rule controlling other cases or their own conduct as President.” And it pledges to “resist” Obergefell “by every peaceful and honorable means.”
It is possible that when Scalia agreed to appear on stage with George that he was unaware of George’s call for massive resistance to Obergefell. It is also possible that when Scalia reportedly referenced Dred Scott and Lincoln during his conversation with George that the justice did not realize that this statement would seem to align him with George’s call for resistance. Especially given George’s prominence, however, it is more likely that Scalia was not ignorant to how these particular remarks would appear if he made them to this particular interlocutor.
As we note above, George “has an interest in shading Scalia’s remarks so that they appear particularly friendly to opponents of marriage equality.” So it is possible that George mischaracterized Scalia’s remark. If George’s characterization of Scalia’s remarks is accurate, however, the most likely explanation for how Scalia happened to find himself on a stage with one of the nation’s most prominent proponents of disobedience to the Obergefell decision — where the justice embraced the exact same rhetoric used by George in the professor’s arguments for disobedience — is that Scalia actually agrees with George’s views.