Richard Lazarus on Scalia and Property Rights:

In what promises to be a fruitful and fascinating trove of information and research ideas, Richard Lazarus has been doing extensive research in Justice Blackmun's papers over the past year or so. He has a paper up on SSRN that draws on those documents, "The Measure of a Justice: Justice Scalia and the Faltering of the Property Rights Movement within the U.S. Supreme Court." By delving into Blackmun's papers, Richard can uncover the internal deliberations of the Supreme Court and the way in which internal coalitions and opinions are assembled, a process about which many have speculated but little concrete is known. This current paper is in that spirit.

Here's the abstract:

This article takes the measure of Justice Scalia's ability to produce significant opinions for the Court, by focusing on the Court's property rights cases during the past several decades. Much of the analysis relies on the Official Papers of Justice Harry Blackmun, which provide a virtual treasure trove of information revealing the Court's deliberative process when Blackmun was on the Court from 1971 to 1994. The article concludes that Justice Scalia may have appeared an effective champion of pro-property rights rhetoric to those outside the Court, but he has been much less effective within the Court in furthering that agenda. He not only repeatedly failed in his efforts to build a workable majority coalition on the Court, but he instead pushed away potential allies. The upshot was, in the first instance, precedent heavy on strong rhetoric yet light on staying power. In combination with other causes, the ultimate result was a splintering of those Justices, which included more than a simple majority, intuitively sympathetic to property rights claims and the reconstruction of a new majority more often led by Justice John Paul Stevens that returned the law to where it had been prior to Justice Scalia's joining the Court.

Cornellian (mail):
He not only repeatedly failed in his efforts to build a workable majority coalition on the Court, but he instead pushed away potential allies.

I'm shocked! From his opinions he comes across as a mild mannered, easy-going, congenial sort of guy, always reluctant to say a bad word about anyone, let alone his fellow justices. I can't imagine how he's managed to alienate his fellow justices to the point where he has a hard time convincing them of anything even when he's right.
12.13.2005 10:06am
Bob Bobstein (mail):
But Cornellian, bluster is so much more emotionally satisfying than relying on the strength of your arguments! And Scalia is steeped in today's conservative "if it feels good, do it" ethos.
12.13.2005 10:28am
David Hecht (mail):
More vindication of my instinct that Scalia would have made a lousy Chief.
12.13.2005 10:37am
Bob Bobstein misses the point, I think. As I read the abstract (without having read the paper), Scalia may very well have quite strong legal arguments, but he's not very good at putting together a coalition for a *winning* position.

BTW - I'll add that I wouldn't trust Lazerus at all to be fair to someone like Scalia. I avoided Lazerus like the plague when I went to Georgetown.
12.13.2005 12:43pm
EstablishmentClaus (mail) (www):
Lazarus is close friends with the current Chief, in case the Chief's opinion is more important to anyone than an anonymous commenter's is ;)
12.13.2005 12:55pm
Cheburashka (mail):
Why do you think none of the anonymous commenters are the Chief?
12.13.2005 1:02pm
Al Maviva (mail):
It's an interesting hypothesis, and spot on if Justice Scalia's goal was to move the court, by himself, in his own direction.

I'd submit that what Scalia normally engages in with his rhetoric is subtle mine-laying, dropping in scathing comments and witty asides basically inviting scholars, appelate judges and litigants will come up with arguments that convince the court to move in a particular direction, an approach that is probably more effective on a public-opinion sensitive Court than urging Justice O'Connor and the more socially liberal of the Washington Kennedy twins to "Win just one for the Nino." Engineering changed minds, or turning persuasive minds, is probably a far more effective approach to long term change in the law, than would be convincing will o' the wisp fence sitters to move in a particular direction in just one particular case.

I'd cite to Apprendi as a case where Scalia's cunning plan worked, planting a landmine the Court couldn't help but step on in Blakely; and to a case where it didn't but was cleverly attempted, Davis v. U.S. (Scalia, concurring) where his point was raised as persuasively as could be raised thanks to the yoeman work of the 4th Circuit and Professor (now Judge) Cassell, then shot down 7-2 in Dickerson by a Court that clearly didn't want to be the lawyers who killed Miranda.
12.13.2005 1:55pm
SimonD (www):
This is essentially the same thesis that Mark Tushnet has advanced about Scalia, in A Court Divided and in Pragmatism &Judgement, 99 Northwestern Univ. L. Rev. 289. Still, I think Al Maviva is right; I don't think Scalia has given up on moving the Court on a case-by-case basis, but I think he is sufficiently aware of the realities of the Court's math that his primary goal is to provide a solid basis for moving the legal culture in the direction he would prefer. Hence, he writes very accessable opinions that people actually want to read, and which are very pursuasive, if not to a majority of the current court, then to people outside of it.
12.13.2005 3:31pm
Paul Zrimsek (mail):
But....but... the Supreme Court decides these cases by interpreting the living Constitution in light of our society's evolving moral standards! What can Nino's personal cuddliness level possibly have to do with the outcome? (/sarcasm)

Consider the Bismarck laws-and-sausages quote to have been invoked. I know everyone's sick of seeing it.
12.13.2005 3:44pm
SimonD (www):
Consider the Bismarck laws-and-sausages quote to have been invoked. I know everyone's sick of seeing it.
One of my favorite Scalia lines appertains to precisley that:
"This case, involving legal requirements for the content and labeling of meat products such as frankfurters, affords a rare opportunity to explore simultaneously both parts of Bismarck's aphorism that 'No man should see how laws or sausages are made.'"
Community Nutrition Institute v. Block, 749 F.2d 50, 51 (D.C. Cir. 1984)
12.13.2005 4:36pm
I always hate when I hear things like "about which little is known."

That's ridiculous. An enormous amount is known. And it's all in political science. See "The Collegial Game: Crafting Law on the Supreme Court" and "The Choices Justices Make." Then there are dozens and dozens of articles in top political science journals on the issue.
12.14.2005 10:19pm
Richard Lazarus (mail):
The plague? Seems a bit harsh.
12.21.2005 11:23pm