Antonin Scalia, Legislator from the Bench

It's not exactly news that the very same conservative jurists who love to accuse liberal judges of "legislating from the bench," i.e. making up justifications at the policy level for imposing a preferred outcome on society against the will of the legislature, often engage in exactly that activity. Indeed, I think they "legislate from the bench" a lot more than the liberals they're critiquing. Still, a recent trend in Antonin Scalia's jurisprudence takes this to terrifying new heights of literalness. During oral arguments about the Voting Rights Act today, apparently, Scalia questioned the idea that the 2006 VRA renewal's unanimous Senate passage vote was a point in its favor:

"I don’t think there is anything to gain by any senator by voting against this act. This is not the kind of question you can leave to Congress. They’re going to lose votes if they vote against the Voting Rights Act. Even the name is wonderful."

This is... odd. Specifically, it's odd in that it involves a kind of legislative psychoanalysis, trying to logic out various reasons why Congresspeople acted as they did (that obviously make those actions look good for Scalia's cause) or what they would have done in some alternate universe. It feels very similar to the passage from the health care cases dissent where, well, I assume it was Scalia, went off on some weird line of thinking about how the PPACA had been a "Christmas tree" bill with lots of only-slightly-related "ornamental" provisions dangled off the central trunk of the law. Therefore, he claimed, if the individual mandate had been eliminated from the bill as it made its way through Congress, the whole rest of the package would not have passed either. Now, the typical standard for severability is that the destruction of one element of the law would make the other elements function improperly in such a way that no rational legislator would want to pass the whole without the part. That's not what would have happened with the ACA: everything in that bill except for the central regulations/mandate/subsidies triumvirate was operationally independent from that central "trunk," so while it might be true that politically the ACA wouldn't have passed without its core, it certainly isn't true that the bill minus its core is nonsensical as policy.

In both cases, Scalia is refusing to take Congress at its word, or, rather, at its vote. Apparently, every Senator voted to renew the Voting Rights Act in 2006, including a good many Southern ones. Now, maybe that just doesn't count at all, if we're only interested in the constitutionality of this piece of legislation and not in what Congress thinks on the matter. (Although, from what I hear, the argument is that Section 5 is too narrow, i.e. punishes these 9 Southern states when they don't really have worse problems than anywhere else, and that therefore we have to strike it down. I'd think that on that question, which strikes me as absurd to begin with, the votes of Southern Senators might be relevant evidence.) But that's not what Scalia's saying. Rather, he's saying that those votes didn't count. Why? Because Antonin Scalia thinks that the motives behind them were other than pure. Oh, these were political votes? They voted for it because they thought it was popular? Because it had a nice-sounding name, implied by Scalia to be kind of Orwellian? Well then, I guess we can infer that all the Southern Senators voting for the VRA actually thought it was horrible and unconstitutional and unfairly targeting their states out of outdated prejudices, despite the fact that they then voted for it. All of them. It's the same as in the ACA case: the fact that Congress enacted all these "ornaments" into law doesn't matter, even though they're operationally independent of the central planks of the legislation, because Antonin Scalia doesn't think they would've passed without those planks.

But guess what, Scalia? You're not in Congress. You're not a legislator; you weren't the floor manager for the ACA or for the 2006 VRA. You don't know how Congress works, and as a Supreme Court judge, you're not supposed to care. When Congress passes stuff, by definition the United States Congress as an institution approves of that stuff. And while we might not want to pay much attention to legislative records on general principles, if we're going to care at all we sure as hell need to care about the actual record, not the hypothetical one Antonin Scalia makes up in his head. This is legislating from the bench, not just in the sense of second-guessing the legislature's policy choices on the merits but in the sense of second-guessing that the legislature has made the policy choices it has in fact made. Scalia has really gone off the deep end, and it would be kind of sad were he not in a position to do so much damage to the world.

(Oh, and for what it's worth, the arguments against the constitutionality of the VRA are insane, and seem to me to be window-dressing around the fact that conservatives don't like it when the federal government uses its powers to attack racism. And also the fact that overturning the VRA might give the Republicans a partisan advantage. These guys disgust me, and if Kennedy sides with them, he loses an awful lot of points. Points he doesn't have to lose.)