Scalia v. Stevens: They Can’t Help Themselves

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As Supreme Court justices circulate draft opinions among themselves and respond to each other’s writing, no two justices engage in a tit-for-tat like Antonin Scalia and John Paul Stevens.

These defenders of conservatism and liberalism, respectively, disagree on big issues, of course, but they are also the two most likely to tussle down in the weeds — on the meaning of a statute, interpretation of precedent or nuances of a legal test. It is not unusual for Scalia to make some assertion that sets off Stevens, who then fires back in his opinion, which prompts Scalia to return the volley, which gets Stevens going again.

That happened in this week’s case of Shady Grove Orthopedic Associates v. Allstate Insurance, a complicated dispute that led to a 5-4 decision letting certain class-action lawsuits barred from state court be heard in federal court. Scalia wrote for a plurality and needed Stevens’s fifth vote for the judgment. Stevens penned a separate concurring opinion. The two feuded over legal reasoning, and by the time Scalia was done answering Stevens’s escalating arguments he had crafted a whole separate section of his opinion that opened with the sentence: “A few words in response to the concurrence.” Several hundred words followed.

As they poked holes in each other’s rationale, Scalia charged Stevens with being “unfaithful” to statute and “greatly exaggerat[ing]” how Scalia had spurned a precedent. Stevens labeled Scalia’s legal test “empty” and said his interpretation of the disputed law was “not much more determinative than mine.” The case had been argued on Nov. 2, and some of this back-and-forth likely led to its being unresolved for nearly four months.

Their dueling rhetoric contributed to the delay in Citizens United v. Federal Election Commission, which came out January 21, after the case had been argued in September and put on a fast-track of sorts. As I noted in an earlier post (Jan. 24), Stevens devoted much of his dissenting opinion in that case to Scalia’s concurrence. (Justice Anthony Kennedy had written the majority opinion.)

Stevens, 89, and Scalia, 74, are two of the more intellectual members of the bench, and they like and respect each other. Scalia revels in this verbal jousting. Stevens finds it more wearying. “He’s got to have the last word,” he once told me of Scalia. “But is it really worth it?”

I think they’ll both miss it when Stevens is gone.

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