Reply to David Schultz's review of
JUSTICE ANTONIN SCALIA AND THE CONSERVATIVE REVIVAL
Richard A. Brisbin, Jr., West Virginia University
Normally I would not reply to a review of my work, but, by neglecting the central organizing propositions of my book on Justice Scalia, David Schultz's review so fundamentally misstates my argument that I feel compelled to respond. At the center of Schultz's review is an assumption: I have not offered one single, definitive explanation of Justice Scalia. Thus, I am criticized because I have "failed to produce a coherent explanation of Scalia's decision-making, even though he [Brisbin] may correctly be describing the various forces present in the Justice's thinking" and because I have offered a "kitchen sink" explanation of Scalia. However, a close reading of the design and logic of my book would disclose that just the opposite is true.
The initial outline of my argument appears on pages 8 and 9. The book then opens with two chapters designed to explore the foundation of Scalia's political thought. This section concludes on page 58 where I assert that when Scalia reached the Court had yet to speak on a "great issues about the value of human life and freedom..." and had yet to offer a fully formed set of positions to the central issues in contemporary American politics. After a short section on Scalia's selection to the Court, I establish three linked propositions about Scalia's behavior as a Supreme Court justice (pages 62-63). (1). Scalia is ideologically or attitudinal conservative. (2). Scalia's opinions are an instrument; they "feature a modification and expansion of Reasoned Elaboration as a means of expressing his conservative attitudes." (3). The opinions display Scalia's adherence to the constitutive perspective of the rule of law which acts a boundary on his range of instrumental political choices or the expression of his attitudes. Thereafter pages 63-70 examine the first proposition, pages 70-290 illustrate the second proposition, and pages 271-324 evaluate the third proposition. I am unable to determine out how these linked propositions represent a "kitchen sink" approach. They center on a political attitudinal proposition: contemporary political conservatism is the core of Scalia's behavior. Scalia's conservatism is expressed through opinions with a unique jurisprudential content toward the instrumental ends designated in the titles and text of Chapters Four through Nine.
Chapter Ten then illustrates the constitutive meaning of Scalia's votes and opinions and how he works within the boundaries of post-Enlightenment Western law with its disciplinary biases. These themes are summed up on page 325. As for my final assessment of Scalia, it returns in the very end (pages 346-47) to argue that Scalia is guided by political conservatism in a way that would stifle diversity in the nation. I am at a loss to understand how Schultz can assert that such a conclusion fails "to produce a coherent explanation of Scalia's decision-making."
Not only has Schultz mischaracterized my explanation of Scalia as lacking definitive themes and logic, he has ignored or misrepresented several of the other features of my analysis. First, he neglects my effort to characterize Scalia's votes and opinions as an integrated conservative political narrative or story about contemporary American politics toward a specific idea of what American politics should become. Second, he neglects the distinction drawn between Scalia's instrumental political aims and his - and most other Americans - adoption of the modern constitutive perspective of the law that bounds legal and political thought.
The instrumental-constitutive distinction is a crucial piece of my argument, but neither term even appears in Schultz's review. Since during the past decade this division has been the subject of special intellectual discussion in the law and society movement and in the works of political scientists like John Brigham, Ronald Kahn, Michael McCann, and Austin Sarat, who have explored the boundaries of legally organized politics and the dominance of law-thought in American political life, I had expected some reaction. Instead, Schultz calls this a "post-modern gloss that ... comes out of nowhere." However, the analysis of Scalia's constitutive perspective is decidedly is not "post-modern" (a term that I never use because it is inaccurate) nor, as indicated in my review of the logic of the book and my references to the appropriate literature, a position that "comes out of nowhere."
Third, Schultz chides me because I give "no attention ... to an analysis of Scalia's interaction with other members on the Court or how successful he has been in securing or leading this revival." As I indicated on pages 9 and 10, that was not my aim. My aim was to "focus on Scalia's political ideas" and expose his "construction of a normative meaning for politics and life in contemporary America." Also, I never claim Scalia is or ought to be a conservative leader. That was not my aim, either. Nevertheless, I spend considerable time comparing Scalia's conservative position to his colleagues on the Court throughout the discussion of his voting behavior on pages 63-70 and in the discussion of opinions that ranges from pages 70-290. Also, a separate section on pages 329-337 compares Scalia to other contemporary legal conservatives. Indeed, I find this criticism strange not just because Schultz criticizes me for adhering to the limited aims of my study, but because his own work on Scalia adopts a non-interactive focus on the Court. His exclusively instrumental analysis skims over some of the some of the themes in a selection of Scalia's opinions about a limited range of topics.
Finally, Schultz calls my book "derivative of earlier research." I would like to know from whom I derived the book. True, I used sections of some of my six earlier, mostly referred articles in constructing the book. However, I substantially recast these publications. In an effort to offer a thorough assessment of the justice, other material in my book thoroughly critiques many of the dozens of published arguments made about Scalia. However, nowhere in the judicial politics literature, including Schultz's work on Scalia, is there an attitudinal-centered explanation of Scalia that also explores both the instrumental and constitutive dimensions of his message. Despite Schultz's claim that my book "breaks little new ground from either earlier books by Schultz and Smith ... and Smith ...," they discuss only a limited range of opinions, abandon their thesis in mid-book, neglect Scalia's federalism and abortion opinions and superficially survey much of the justice's equal protection and statutory analysis, offer no attitudinal basis for their analysis, and ignore the constitutive dimensions of Scalia's political message. [For more specific criticism, see my review of Smith, JUDICATURE (March-April 1995): 256-260; and of Schultz and Smith, AMERICAN POLITICAL SCIENCE REVIEW 90 (December 1996): 921-22]. Only on First Amendment issues do I admit any substantial agreement with any propositions in the Schultz and Smith publications (page 220), but my review of the instrumental message of the cases takes a quite different tack, and it addresses issues of the generality of First Amendment rights ignored by these authors. Certainly I derived nothing of much value from Schultz's work on Scalia. Additionally, no scholar or journalist offers criticisms of Scalia even remotely similar to those presented in my final chapter. Therefore, I must be breaking some new ground.
Because the justice might suddenly move off in a new attitudinal or jurisprudential direction, writing a book about a sitting justice is a dangerous proposition. My book will surely not be the last word on Scalia. After the completion of my book Scalia adopted some self-contradictory themes in the Tanner Lectures he gave at Princeton University, and he made a subtle move toward greater use of extra-legal tradition in the recent Colorado gay rights and the VMI gender discrimination cases. However, despite Schultz's many groundless comments and inattention to my key themes and concepts, I trust that intelligent readers will find that my book offers an integrated assessment of the justice of utility in understanding the political dimensions of contemporary American legal conservatism.