|AJ Antonin Scalia official portrait.|
(Source: Wikimedia Commons)
If you want to see a very good example of a straw man argument, I suggest you read Daniel Fisher's attempt to take down AJ Antonin Scalia's dissent in United States v. Windsor, posted in Forbes. It's witty, light reading and betrays very little grasp of Scalia's argument or his judicial philosophy. In fact, it demonstrates just about everything that's wrong with the media and political discourse today.
Here is my best attempt to reconstruct the steps Fisher took to write his article:
- Skim through Scalia's dissent, pulling out of it some juicy quotes on the fly. This isn't hard to do, because Scalia's writing is eminently readable, remarkably free of legal jargon and obscure polysyllabic words.
- Go back to Scalia's dissent in National Federation of Independent Business v. Sebelius and do the same thing. This is a longer process, because it actually involves three separate cases that were combined, and covers four different aspects of a very long Act.
- Convert judicial restraint from a general approach to an absolute principle.
- Write your post, making sure you keep it within Forbes' word limit.
Step 3 is where the shape of the scarecrow is put together. The transformation is something like the conversion of William of Ockham's "law of parsimony" into "Ockham's razor": A principle that merely admonishes one not to introduce unnecessary elements into an explanation somehow became a reductive, misleading idea that true explanations are always — or at least usually — simpler than untrue explanations.
Fisher's complaint against Scalia: "... Scalia’s passionate cry for judicial restraint in DOMA contrasts with his dissent in the Affordable Care Act case just a year ago. In NFIB vs. Sibelius, he writes on for 65 pages about the many ways in which Congress overstepped its authority and passed a law that should have been struck down in its entirety. ... Reading Scalia’s dissent [in Windsor], I can’t help but conclude that the important difference between Obamacare and DOMA is the subject matter of the laws."
In other words, "If Scalia really believed in judicial restraint, he wouldn't have been so hot to tear apart PPACA." And that is a fundamental misrepresentation of judicial restraint as a legal principle: the point is not to meddle with the law as little as possible but to meddle as little as necessary. There's a mile's worth of difference between possible and necessary. Of course opinions will differ as far as whether any particular exercise of judicial review is "necessary". You read enough opinions, you'll find that each of the Supremes has at least paid lip service to restraint at one time or another.
If we cared to indulge in a tu quoque, we could as easily respond, "Four of the five justices in the Windsor majority were in the Sebelius majority as well; we can't help but conclude that they liked Obamacare but didn't like DOMA." (In fact, AJ Anthony Kennedy couldn't help make his dislike for DOMA and its proponents clear in his opinion; if he didn't really brand opponents of gay marriage "enemies of the human race" as Scalia contends, he seems to think that we're all big meanies who like to kick puppies and make children cry for fun.) Indeed, we could extend the tu quoque to say that Fisher dismisses Scalia as a jurist because he likes Obamacare and didn't like DOMA.
Do you see how fruitless and dishonest such an argument is? Not only is it lazy and demeaning, it risks the emotional tail wagging the intellectual dog.
Look, I'm not going to pretend that legal, political and moral opinions are all neatly separable; there's too much overlap between the three. But the point of judicial restraint is that, as necessary as judicial review may be from time to time, judicial declarations of unconstitutionality are by definition anti-democratic exercises of power by an unelected and unrepresentative body that are damn near impossible for anyone other than a future Court to overcome; in one notorious case — Dred Scott v. Sanford — it took over a hundred years, a handful of amendments and a civil war to nullify the simple yet damning phrase, "The black man has no rights which a white man is bound to respect."
That's why the courts should strive to avoid declaring a law unconstitutional when it isn't needed to cure the appellant's injury. That's why, when an adversarial relationship ceases to exist in fact, the courts should not pretend one still exists for the purpose of exercising judicial review. That's why AJ Clarence Thomas has a sign on his desk that says "THOU SHALT NOT EMANATE FROM THE PENUMBRA", and why "substantive due process" deserves a grave in the jurisprudential cemetery right next to "separate but equal". Judicial restraint is simply the recognition that the power of judicial review is open, even prone, to abuse, and therefore demands the willing subordination of one's political and moral preferences to an honest and respectful appreciation of the Constitution, laws and precedents as they were written and meant to be understood.
However ... unconstitutionality happens. Laws do occasionally come before SCOTUS properly, fulfilling all the requirements of their appellate jurisdiction, and which need to be struck down in whole or part to cure an injury. So Scalia is not being hypocritical merely by demanding PPACA be struck down and DOMA be sustained, nor need we conclude that he is motivated solely — or even in part — by his moral or political beliefs. (Let's face it: when a bill's advocate says, "We have to pass it in order to find out what's in it," the bill can't be entirely good law, no matter what it's trying to accomplish.) Nor does the majority opinion in Windsor violate the principle of judicial restraint just by dint of striking down DOMA; how it does violate the principle is a matter for another post ... which, oddly enough, I've already written.
It could be concluded that Fisher's post is really an ad hominem attack posing as an admonition that the Court should choose its battles wisely. ("The Supreme Court only has so much institutional power to squander, and fighting Congress or clearly solidifying public sentiment on the truly big questions can be a fool’s errand.") But Fisher could have made such an argument without first reducing judicial restraint to a mere abject veneration of the Will of the People or an ironclad Law of Congressional Non-Interference. Character assassination requires no preliminary bashing of straw men.