Scalia, The Gift That Keeps On Giving
Justice Barrett's adamant and occasionally condescending opinion in Trump v. Casa, issued last Friday, left me with the uncomfortable sense that we have been served a very thin gruel. It seemed to lack any understanding of the gravity and urgency that fostered the case and the offending injunction.
I became suspicious of both the reasoning and the motive behind the opinion. All six conservative justices joined in reserving the sole right to issue a national injunction to themselves. That might be sufficient motive but the reasoning set forth by Barrett discloses a deeper and more insidious dismantling of constitutional safeguards. It has the finger prints of the late, Anthony Scalia.
Justice Barrett cites The Judiciary Act of 1789 which endowed federal courts with jurisdiction over “all suits . . . in equity,” §11, 1 Stat. 78, and still today, this statute “is what authorizes the federal courts to issue equitable remedies.” (In this instance, an injunction.) And who should determine the form and extent of those equitable remedies? For this Barrett hangs her hat on a 1999, Supreme Court case called Grupo Mexicano de De sarrollo, S. A. v. Alliance Bond Fund, Inc. (“Grupo”.) That Court held that the Judiciary Act encompasses only those sorts of equitable remedies “traditionally accorded by courts of equity”at our country’s inception. Those last words had a familiar ring and I was not surprised to see that the “Grupo” opinion was written by none other than Anthony Scalia.
Scalia was the first Supreme Court Justice to espouse an extreme form of textualism, known now as “originalism”. This theory of constitutional interpretation was developed by former Yale law professor, Robert Bork, who, not coincidentally, served on the DC Circuit Court of Appeals with Scalia from 1982 to 1986. Originalism not only focuses on the actual words in the Constitution or any early statute, but envisions the meaning of those words to those who wrote them. Hence, the Constitution becomes an immutable document unchanged by evolving events or circumstances. Scalia abhorred the thought of a living document, which adapted to the passage of time. The great sin of originalism is it requires each practitioner to use his or her subjective reasoning in search of what the scrivener intended the words to mean given common understanding at the time. This allows the originalist to cherry pick history that might indicate the writer's possible meaning. Even occasionally ascribing the absence of a contrary meaning as support of their own interpretation. It is a license to create great mischief.
In the thirty years Scalia sat on that bench he was a pugnacious proselytizer of originalism. He quickly found a convert in Thomas and, later, Alito. In Grupo, he was able to persuade Chief Justice Rehnquist, along with three others, winning a 5-4 reversal of the holdings of both the district and circuit courts below. Scalia's originalist argument was that the Judiciary Act of 1789's grant of equity jurisdiction was limited by the bounds of equity as practiced around that time in the English Court of Chancery. Diving deep into English history he proposed that the Courts of Chancellery would never have accepted such a broad use of arbitrary power as the universal injunction.
In Justice Barrett's lengthy opinion in Casa, she bemoans the recent abuse of universal injunctions by the District and Circuit courts. She speaks of improper partisan use of injunctions to block the executive branch without addressing Trump's widespread breaches of constitutional rights. While vaguely calling for flexibility, she cites Grupo to strip the lower courts of the right to use the injunction. Justice Kavanaugh, concurring, made it clear that the use of such injunctions hence forth shall only be the prerogative of the Supreme Court. “T oday’s decision will require district courts to follow proper legal procedures when awarding such relief. Most significantly, district courts can no longer award preliminary nationwide or class wide relief except when such relief is legally authorized.” He opined that such authorization stems from the Supreme Court's natural position in the appellate process; giving review to the losing party “this Court has therefore often acted as the ultimate decider of the interim legal status of major new federal statutes and executive actions.” Ironically, in this and most other Trump cases, it is the administration that has lost below.
Justice Barrett and her colleagues accomplished a great deal for the Conservative cause and the Trump administration. The Supreme Court took away a powerful tool previously allowed lower federal courts, securing it for themselves and critically limiting the public's ability to challenge unconstitutional executive action. In reserving that power to themselves they also assured that the court's conservative majority will be better able to control the appellate process. And most importantly it solidified Scalia's originalism as the interpretive tool of precedent, allowing this conservative court to reconstruct the Constitution based on its own subjective reasoning.
By Serge Pepper