Does Justice Scalia Really Believe He's on the 'Losing Side of Everything'?

By comparing himself with a New Deal obstructionist, the conservative judge raises questions about the Court's future—and his own legacy.
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One of the many underreported facets of Jennifer Senior's fantastic New York Magazine interview with United States Supreme Court Justice Antonin Scalia was his reference to Justice George Sutherland, the late, great conservative jurist best known for obstructing the New Deal. When Senior asked Justice Scalia near the end of their long, colorful riff, "Which decisions in your tenure do you think will be heroic?" he responded:

Oh, my goodness. I have no idea. You know, for all I know, 50 years from now I may be the Justice Sutherland of the late-twentieth and early-21st century, who's regarded as: "He was on the losing side of everything, an old fogey, the old view." And I don't care.

Sutherland, born in England, was a Mormon and a Republican who served in the House of Representatives before he was tapped for the Court by President Warren Harding. Along with fellow conservatives James Clark McReynolds, Willis Van Devanter, and Pierce Butler, Sutherland struck down one major New Deal piece of legislation after another. In 1935, the Farm Bankruptcy Act fell. So did the Coal Conservation Act. And the National Industrial Recovery Act. In 1936, the Agricultural Adjustment Act fell. It was these cases that prompted President Roosevelt to push his ill-conceived court-packing plan.

A conservative justice who joins with his fellow travelers in a yeoman effort to stop a Democratic president from implementing vital new reforms? It's no wonder that Justice Scalia cited Sutherland, right? Right. Except that Justice Sutherland in practice was far less conservative than is Justice Scalia. And Justice Scalia's perception/prediction that he may be "on the losing side of everything" is belied (so far anyway) by the fact that he and his fellow Republicans on the Court have presided over a monumental restoration of conservative jurisprudence.

Let's take Justice Sutherland first. Like millions of other conservatives, he hated what the New Deal stood for and did what he could to stop it. But he was not a hard-edged warrior. For example, it was Justice Sutherland, in 1932, who wrote the opinion in Powell v. Alabama, a decision that stills stands for the proposition that a criminal defendant cannot get a fair trial without assistance of counsel. It was Powell the Court cited in 1963 in Gideon v. Wainwright, the right to counsel case that has helped millions of Americans in the past 50 years get something resembling a fair shake in court.

Moreover, there is strong evidence that Justice Sutherland as an elected official before he reached the Court was remarkably progressive. From "The Secret Lives of the Four Horsemen," a 2011 law review article by Barry Cushman:

We discover that Sutherland's legislative career saw him support the eight-hour day, the Employers' Liability Act, the Pure Food and Drugs Act, the Hepburn Rate Bill, the Children's Bureau, the Seaman's Act of 1915, Postal Savings Banks, free coinage of silver, and the1896 presidential candidacy of the populist William Jennings Bryan. We even find Sutherland in the vanguard of the struggle for women's suffrage and a system of workmen's compensation for the employees of interstate carriers.

Now, Justice Scalia never held elected office so we will never know whether he would have supported progressive causes like these as a legislator. My guess, which is as good as your guess, is that he would not. We can, each of us, make this guess because we have a quarter of a century of Court opinions to sift through, as well as Justice Scalia's record as a lower appellate judge and executive branch official, all of which tell us that the jurisprudence of Justice Scalia has rarely favored women, or workers, or laws like the Affordable Care Act that seek to help the poor.

Indeed, Justice Scalia has been largely responsible for one conservative victory after another since joining the Court in 1986. He has helped restrict voting rights. He has restricted the rights of workers and employees and unions. He has limited the ability of plaintiffs to seek redress in court. He has helped make it more difficult for criminal defendants to seek and gain justice. He has opened the floodgates for money to pour into political campaigns. He has endorsed grand executive branch power.

On and on the litany of conservative achievement goes--with no end in sight. So does the justice truly believe that "his side" is losing or that, within the next 50 years, it will lose the constitutional battles it now is winning? Does he truly believe that the advance of gay rights--arguably the most significant setback he has seen since coming to the Court--trumps all the other areas of the law in which conservatism is ascendant? Was he merely being self-deprecating in citing Sutherland? Does he feel the need for future vindication even though the present sure looks to be treating him right?

Jeff Shesol, the author and historian who wrote Supreme Power, the definitive modern book about Roosevelt and the Court, told me Monday that Justice McReynolds may have gotten all the heat 75 years ago but that it was Justice Sutherland who was the "intellectual architect" of the conservative fight against the New Deal. Maybe that's what Justice Scalia has in mind. Maybe he wants history to remember him as the "intellectual architect" of the modern fight against progressivism. That history, like all history, will be written by the winners. And I'm genuinely surprised that Justice Scalia is bracing himself for the possibility that his side in the fight won't be writing it.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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