Various reports on today’s oral arguments about the Anti-Injunction Act attribute a position to Justice Scalia that is the opposite of what he apparently holds with respect to the jurisdictionality of the AIA. These reports take apparently sarcastic comments at face value.
The comments came in an intervention by Justice Scalia apparently aimed at helping the amicus curiae, Robert Long, respond to Justice Sotomayor’s question (following up on Justice Alito’s) about the negative consequences of holding that the AIA is not jurisdictional:
JUSTICE SOTOMAYOR: Assuming we find that this is not jurisdictional, what is the parade of horribles that you see occurring if we call this a mandatory claim processing rule? What kinds of cases do you imagine that courts will reach?
One response was that the government could mistakenly forfeit the AIA by failing to raise it. When Justice Sotomayor pressed Long further, Justice Scalia interposed and introduced another argument based on the undesirability of empowering judges to create equitable exceptions that could interfere with tax collection:
JUSTICE SOTOMAYOR: Assumes the lack of competency of the government, which I don’t, but what other types of cases?
JUSTICE SCALIA: Mr. Long, I don’t think you are going to come up with any, but I think your response is you could say that about any jurisdictional rule. If it’s not jurisdictional, what’s going to happen is you are going to have an intelligent federal court deciding whether you are going to make an exception. And there will be no parade of horribles because all federal courts are intelligent. So it seems to me it’s a question you can’t answer. It’s a question which asks “why should there be any jurisdictional rules?” And you think there should be.
The write-ups of this portion of the argument at Thomson Reuters, SCOTUSBlog, National Law Journal, and Huffington Post report Justice Scalia’s statement as if he were endorsing the view that “there will be no parade of horribles.” Although I did not attend the argument and have not listened to the argument to hear the intonation, I think that is mistaken. It is inconsistent not only with views expressed by Justice Scalia elsewhere (as in the conclusion of his concurrence in Sosa v. Alvarez-Machain), but also with his apparent belief that the AIA is jurisdictional (as revealed in his question about a principle that ousters of jurisdiction are narrowly construed).
Most tellingly to one familiar with Justice Scalia’s writings, however, is that the comment came in response to a question about a “parade of horribles.” A couple decades ago, Justice Scalia referred to the misuse of this phrase as one of the “canards of contemporary legal analysis.” See Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case Western L. Rev.581, 590-93 (1989-90). The reasons that he gave then illuminate the comments he made today about the jurisdictionality of the AIA:
The reason I say that the “parade of horribles” put-down appeals to the Emersonian school of jurisprudence is this: Just as one cannot conceive of a parade unless one believes in organization, so also one cannot take seriously a jurisprudential parade of horribles unless one believes in the demands of logic and consistency as the determinants of future judicial decisions. The judge without that belief – the judge who does not operate on the assumption that he must decide the case before him on the basis of a general principle that he is willing to apply consistently in future ‘cases – can simply dismiss the predictions of future mischief by quoting Justice Holmes’s reply to Chief Justice Marshall’s venerable dictum that “the power to tax [is] the power to destroy.” “The power to tax is not the power to destroy,” Holmes said, “while this Court sits.” The notion that predicted evils cannot occur “while this -‘Court sits” is comforting, of course, but hardly a response to how they can be avoided without repudiating the legal principle adopted in the case at hand. I would have thought it a better response to Marshall’s dictum that the power to tax the activities of the federal government cannot constitute the power to destroy the federal government so long as the tax is generally applicable and nondiscriminatory – because it is implausible that the state would destroy its own citizens as well. Instead, however, Holmes simply said “not … while this Court sits,” and excused Marshall’s ignorance with the observation that “[i]n those days it was not recognized as it is today that most of the distinctions of the law are distinctions of degree.” (Here Holmes flatters himself and his legal realist disciples. Perhaps it was not as generally recognized, but I am sure Marshall was quite aware of it.) “The question of interference with Government,” Holmes concluded, “is one of reasonableness and degree and it seems to me that the interference in this case is too remote.”
Of course if one is to adopt as the controlling legal principle “reasonableness and degree,” one need fear no parade of horribles. As soon as the result seems “unreasonable,” or goes “too far,” the remaining marchers will be sent home. But what guidance does such a principle provide for the lower courts, and what check is it against the personal preferences of future judges? “Be reasonable and do not go too far” is hardly more informative than “Do justice,” or “Do good and avoid evil.” Once one departs from such platitudes and insists upon an analytical principle that is not value laden, then, and only then, does the parade of horribles become a meaningful threat.
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