Nino Scalia has been a Justice of the Supreme Court for nearly a quarter century. He’s 75 years old. He could go on for another 20 years.
What sort of Justice has he been? A brilliant one. And not a very good one.
I had been looking for a quote of his for some time because I thought it was so odd, coming from a judge. It was to the effect that the primary check on prosecutorial abuse is political. Turns out this was one of Nino’s early efforts in one of his trademark blistering dissents in a case about “independent counsels” under the Ethics In Government Act. The name of the 1988 case was Morrison v. Olson, at 487 US 654.
In retrospect this opinion was a harbinger not only of many learned and pointed dissents to come, but also a rather peculiar intellectual error that has no doubt shaped Supreme Court jurisprudence during his tenure in an especially deleterious way.
The actual quote is:
“Under our system of government, the primary check against prosecutorial abuse is a political one. The prosecutors who exercise this awesome discretion are selected and can be removed by a President, whom the people have trusted enough to elect. ”
It comes in Part V of a lengthy dissent in which the separation of governmental powers and the potentially destructive power of prosecutors figure prominently. It also comes right after Nino quotes a famous speech by former Justice Robert Jackson about the dangerous power of prosecutors. I doubt very much that Nino has returned to that quote since.
Nino spent much of that dissenting opinion excoriating ad hoc and unsupported assertions in court opinions as well, something I have to admit he’s not often guilty of. Except in that quote. That the primary check upon prosecutorial abuse is political, I mean.
And that’s doubly ironic because the case was all about the separation of powers.
There’s no support or precedent offered for Nino’s assertion. Nor could there be, because he is wrong. The primary check on prosecutorial abuse in our “system of government” is the judiciary. This is grade school civics class stuff. The whole idea of the constitution, and the separation of powers in particular, is that self-restraint is not an effective check on the abuse of power. To claim that the executive branch is somehow capable of this is just a judicial abdication and profoundly contrary to the constitution. Indeed there are few things more basic to being a judge than checking prosecutorial abuse by the executive.
But boy does this explain a lot about the way he decides cases and the unfortunate influence he has had on the Supreme Court and courts generally. Let’s face it: if judges accord such extreme deference to prosecutors and then on top of that extreme deference to state courts owing to federalism concerns – another of Nino’s conspicuous devotions – that doesn’t leave a lot for federal judges to do.
As he’s gotten older this view has ossified into a reflexive hostility to judges doing anything at all to alter the status quo brought before them. And more than anything else, that is how Nino decides where his opinions will fall: whoever is the winner coming into court should be the winner going out. This naturally favors the stronger litigant over the weaker one.
And this is the most reliable predictor of outcomes both in the SCOTUS and in lower courts around the US, both state and federal.
When that trend reaches an extreme it is better to have no courts at all. The strong prevail over the weak without courts. The reason we have courts in the first place is to check that tendency, and not entirely for altruistic reasons either: extreme imbalances of wealth and power and privilege are socially very destructive. There are many examples of just how destructive, both looking around the world today and at history. Courts do not redistribute wealth and power in a collective political fashion; but they are often called upon to do so in this or that individual case. Applying the law even-handedly will do that with some frequency. And that is what it is supposed to do. And that is what judges are supposed to do.
Those Supremes fancy themselves players on the world historical stage. I’m sure Nino does. He may think of himself as a key player, but alas he is just a punter.