Justice Scalia, RIP

I will greatly miss reading his brilliant dissents, even if I often disagreed with them. Let me challenge what I see as a bit of a conundrum with the good Justice. Quoting Scalia:

 If there was any thought absolutely foreign to the founders of our country, surely it was the notion that we Americans should be governed the way that Europeans are – and nothing has changed.

Yet, as Scalia concedes, the Founders were more than willing to cite one form of foreign law, and that was the British Common Law which was predicated on notions of 1. the brooding omnipresence in the sky and 2. the doctrine of Stare Decisis, both of which Scalia, for the most part, rejects.

When I say “for the most part” I mean as it relates to Stare Decisis. As far as I can tell, Justice Scalia rejects Stare Decisis when none of the other (even very conservative) Justices do. Thus, when Scalia writes a majority or a dissent that has any other of the Justices joining him, he can’t say “let’s dump Stare Decisis.” He can only do such when he writes a sole dissent.

But as far as I can tell from his books and articles (where he speaks on behalf of he himself only), that’s what he would do in his first best world. The most Scalia can do when he writes an opinion with others joining him is downplay as oppose to categorically reject Stare Decisis.

But if Justice Scalia’s first best judicial world were adopted then America would look, juridically speaking, from a procedural perspective, a lot more like those “other” European nations who are not “common law nations.” (Having a “common law” legal heritage means you either are 1. Great Britain, or 2. a former British colony. Given how big the British Empire once was, this encompasses many nations.)

The other European “civil law” systems (and their former colonies) do not use Stare Decisis, but rely more on laws or codes passed by democratic majorities, not judicial precedent.

Justice Scalia wanted America’s judicial system to look more “European” in that sense.


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Jon Rowe is a full Professor of Business at Mercer County Community College, where he teaches business, law, and legal issues relating to politics. Of course, his views do not necessarily represent those of his employer. ...more →

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10 thoughts on “Justice Scalia, RIP

  1. One thing I’ve wondered about civil code systems is, can’t at least some provisions of a code have ambiguity? And with that ambiguity, shouldn’t judges be empowered to distinguish how to resolve that ambiguity? And wouldn’t such distinctions revolve around common notions of fairness or interpretative practices as we see in common law systems? And once enough judges build a consensus on how to resolve that ambiguity, wouldn’t that consensus govern in a way that looks a little like “stare decisis”?

    I’m not saying that civil codes are in fact common law codes, just that I find it hard to think that any major code won’t eventually rely in part on a tradition of judicial interpretation in addition to a code.

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    • This is from a friend who practices law in Louisiana, which uses the Napoleonic Code:

      “It’s called jurisprudente constante. Basically, you don’t necessarily follow a single decision of a higher court, but you do follow several decisions where the authority has remained constant. That’s what we have instead of stare decisis.”

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    • I still may not completely understand this nuance. Both Scalia and Thomas are more than willing to put originalism ahead of Stare Decisis. Likewise the liberals are more willing to overturn cases whose results they disagree with.

      But in Scalia’s first best judicial world, Stare Decisis would be entirely unnecessary (if I understand him right). It has something to do with his textualism. You look strictly at the text of democratically enacted legal documents.

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      • If you want to, you can argue that Scalia wanted to write opinions that argued for the overturning of precedent. But Thomas did write opinions against precedent. So you can’t say that Scalia opposes Stare Decisis more than any of the other Justices. I’m not even sure you can argue that he’s more likely than the average Justice to call for the overturning of bad decisions.

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        • In order to work within the system Scalia made his peace with precedent. I’m referring more to his writings that were not his judicial opinions. Though, as noted, when Scalia writes a sole dissent, he could be speaking for himself only, likewise. But you tend to see his first best world from his non-judicial opinion writings. In particular those that relate to his theory on “textualism.”

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