Mimesis Law
4 June 2020

Of Graves and Worms and Epitaphs

Feb. 17, 2016 (Mimesis Law) — Whether you liked or loathed him, he was, to dip into cliché (which he rarely did), larger than life.  And now . . .

His death changes everything. Or perhaps nothing.

The immediate question is what happens to all those cases already argued but not yet decided, and to all those cases scheduled but not yet argued.

If it happens that Scalia’s vote wouldn’t have mattered – if he was/would be in dissent or a majority by greater than one vote – then all we lose is his voice. It was a hell of a voice, certainly.  A loud, sharp, take-no-prisoners (there I go slipping into cliché again), voice, filled with memorable phrases (“legalistic argle-bargle,” anyone?) and dire warnings.

Warning of what would follow from the Court’s invalidation of laws against gay sex in Lawrence v. Texas (which overruled Bowers v. Hardwick).

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.

Warning (in Maples v. Thomas) of what would happen if a habeas petitioner facing a death sentence could get relief when his lawyers abandoned him and left him unable to challenge his death sentence just because relief would be fair.

But if the interest of fairness justifies our excusing Maples’ procedural default here, it does so whenever a defendant’s procedural default is caused by his attorney.That is simply not the law—and cannot be, if the states are to have an orderly system of criminal litigation conducted by counsel. Our precedents allow a State to stand on its rights and enforce a habeas petitioner’s procedural default even when counsel is to blame.

Warning, similarly, in Holland v. Florida just because conscience might command such relief.

The Court’s impulse to intervene when a litigant’s lawyer has made mistakes is understandable; the temptation to tinker with technical rules to achieve what appears a just result is often strong, especially when the client faces a capital sentence. But the Constitution does not empower federal courts to rewrite, in the name of equity, rules that Congress has made. Endowing unelected judges with that power is irreconcilable with our system, for it “would literally place the whole rights and property of the community under the arbitrary will of the judge,” arming him with “a despotic and sovereign authority,” 1 J.Story, Commentaries on Equity Jurisprudence §19, p. 19(14th ed. 1918). The danger is doubled when we disregard our own precedent, leaving only our own consciences to constrain our discretion.

Losing that voice is losing a lot. But it doesn’t change much in the real world.

The cases where his vote mattered, though. They’re different.   5-4 wins become 4-4 ties.

Typically, that gets an entry from the court that the lower court’s decision is “affirmed by an equally divided court.” The decision has no precedential value.  It decides nothing, just leaves things as they were, as if the Court had refused to hear the cases. Applying that rule likely leaves Obama’s immigration rules unconstitutional in the Fifth Circuit.  It likely leaves union dues as they have been.

That’s what typically happens when the court splits 4-4. But there’s an alternative when it splits that way not because a justice recused herself but because there are only 8 of them on the Court.  It can call for reargument next term (assuming there will be 9 by then).  In which case things are just in limbo.

What does that mean for criminal justice? Scott Greenfield outlined some of it.  Gideon took on a piece. I mentioned a couple of things.  And here at FL, Ken Womble tried for a broader view of the question.

But really, there’s more. Scalia’s death silences the most consequential of justices.  Not because he moved the law so dramatically.  There’s a pretty fair case to be made that in terms of making law Justice Brennan was far more influential.  (My pal Russ Bensing made that case, saving me the trouble.)  What Scalia moved wasn’t the law so much as the argument.

The way to interpret the Constitution, he said, is to look at how it was understood when it was adopted. He believed, as he delighted in telling audiences, in a “dead Constitution.”  The world may have changed.  The Constitution hasn’t (except by amendment).  What it meant then, is what it means now.  No more.  No less.

It’s a model of constitutional interpretation sharply at odds with what was the prevailing view, a so-called “living Constitution,” made to adapt to the world we have. That’s a view nowhere better expressed than in the plurality opinion in Trop v. Dulles, where Earl Warren asserts that the 8th Amendment’s ban on cruel and unusual punishments “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

Scalia pushed and pushed. He wasn’t alone, of course, but he had the bulliest of constitutional pulpits.  And now. . . well, the living Constitution isn’t dead, but the dead one is certainly alive.  And he’s largely responsible.

There are problems, serious problems with the originalist model. They’re problems both practical and philosophical.  Here’s Brennan from a lecture he gave at Georgetown University in 1985, before Scalia was on the Court, and certainly before his originalist approach achieved something akin to universal respect (if not adoption).

There are those who find legitimacy in fidelity to what they call “the intentions of the Framers.” In its most doctrinaire incarnation, this view demands that Justices discern exactly what the Framers thought about the question under consideration and simply follow that intention in resolving the case before them. It is a view that feigns self-effacing deference to the specific judgments of those who forged our original social compact. But in truth it is little more than arrogance cloaked as humility. It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions.

All too often, sources of potential enlightenment such as records of the ratification debates provide sparse or ambiguous evidence of the original intention. Typically, all that can be gleaned is that the Framers themselves did not agree about the application or meaning of particular constitutional provisions, and hid their differences in cloaks of generality. Indeed, it is far from clear whose intention is relevant-that of the drafters, the congressional disputants, or the ratifiers in the states?-or even whether the idea of an original intention is a coherent way of thinking about a jointly drafted document drawing its authority from a general assent of the states.

And apart from the problematic nature of the sources, our distance of two centuries cannot but work as a prism refracting all we perceive. One cannot help but speculate that the chorus of lamentations calling for interpretation faithful to “original intention”-and proposing nullification of interpretations that fail this quick litmus test-must inevitably come from persons who have no familiarity with the historical record.

All of which, I think is right. But, again, the dead Constitution lives.

Someday, there will again be a ninth justice, whether one nominated by Obama or by his successor or by hers.* That justice may or may not share Scalia’s approach to constitutional interpretation (one Scalia himself didn’t always follow, I should add).

What is certain is that whoever it may be won’t have the force, the eloquence, the chutzpah, or the power Scalia did. Perhaps that Justice will move the law more than Scalia.  Almost certainly, though, he won’t move the argument as far.

There’s another certainty, too. In time, we’ll have a third school: A constitution neither living nor dead.  A hybrid? A zombie? Who’s to say?  But in time.

Hence, the title of this post, taken from Act III, Scene 2 of Shakespeare’s Tragedy of King Richard II, King Richard speaking:

Let’s talk of graves, of worms, and epitaphs;

Make dust our paper and with rainy eyes
Write sorrow on the bosom of the earth,
Let’s choose executors and talk of wills:
And yet not so, for what can we bequeath
Save our deposed bodies to the ground?
Our lands, our lives and all are Bolingbroke’s,
And nothing can we call our own but death
And that small model of the barren earth
Which serves as paste and cover to our bones.
For God’s sake, let us sit upon the ground
And tell sad stories of the death of kings;
How some have been deposed; some slain in war,
Some haunted by the ghosts they have deposed;
Some poison’d by their wives: some sleeping kill’d;
All murder’d: for within the hollow crown
That rounds the mortal temples of a king
Keeps Death his court and there the antic sits,
Scoffing his state and grinning at his pomp,
Allowing him a breath, a little scene,
To monarchize, be fear’d and kill with looks,
Infusing him with self and vain conceit,
As if this flesh which walls about our life,
Were brass impregnable, and humour’d thus
Comes at the last and with a little pin
Bores through his castle wall, and farewell king!
Cover your heads and mock not flesh and blood
With solemn reverence: throw away respect,
Tradition, form and ceremonious duty,
For you have but mistook me all this while:
I live with bread like you, feel want,
Taste grief, need friends: subjected thus,
How can you say to me, I am a king?

*The feminine is a linguistic and stylistic choice, not a predictive one. I know how I’m likely to vote, but I’m not fully enthusiastic about any of the major party choices and I’m sure as hell not endorsing anyone here.  I do note, though, that if you care about the courts and the Constitution, this has the makings of being a vital election.

4 Comments on this post.

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  • Richard G. Kopf
    17 February 2016 at 8:46 am - Reply


    Simply, breathlessly, wonderful.

    All the best.


    • Jeff Gamso
      17 February 2016 at 3:18 pm - Reply

      Richard II may not have been much of a king, but Shakespeare gave him some wonderful poetry.

  • John Kindley
    17 February 2016 at 9:16 am - Reply

    There’s actually a significant difference between trying to discern original “intent” in contruing statutes and the “textualism” which Scalia espoused. Scalia would pretty much agree with what Brennan said in what was quoted. A primary example of this textualism is a 19th century treatise by Lysander Spooner, which was actually cited by Scalia in one of the 2nd Amendment opinions. Spooner argued that, regardless of the Framers’ “intent,” slavery was unconstitutional, even before the Civil War, since the Framers as a group hadn’t been shameless enough to legitimate slavery in the text of the Constitution with “irresistible clearness.”

    • Jeff Gamso
      17 February 2016 at 10:13 am - Reply

      Scalia was a statutory textualist, not a constitutional textualist. But that didn’t mean he looked (this is his theory, not always his practice) at what the words, the text, would mean today but at what it meant/would have meant at the time it was written. That’s exactly the sort of hubris Brennan referred to. And it applies to originalism, too.

      Trained historians and historical linguists disagree about this shit. That lawyers are able unerringly to divine the right answers . . . .

      I own a peculiar book published by the ABA maybe 60 years ago (I don’t have it in front of me to check) called “Shakespeare Cross Examination” or some such thing. It’s a collection of short articles from the ABA Journal each advocating one or another view of who wrote Shakespeare’s plays. The preface says, with mind-boggling arrogance and stupidity, that lawyers are those best capable of answering the question because they are the experts in evaluating evidence. (For the same reason, I assume, they’re the ones best able to diagnose brain tumors – that too involves looking at evidence.)