Remembering an Evening with Scalia: Textualism, Sandwiches, and Tomato Pie

 

A few years ago, Scalia spent an evening with our local chapter of the Federalist Society, giving a talk loosely based on his latest book, Reading Law: The Interpretation of Legal Texts, with lively Q&A to follow.

I was in graduate school at the time – not law school – and I remember my first thought being, “Dress up. You know how lawyers are, and it’s not every day you meet a Supreme Court justice.” So wearing my best blouse and skirt, I arrived at the posh library hosting the event – and immediately proceeded to feel like a dirty hippie: Lawyers dress sharp. Conservative lawyers even more so – and even sharper for an occasion like this one. Though out of my element, and handicapped somewhat by lack of shorthand skills, I did manage to scribble down several notes and quotes, and I thought I’d share some of the more legible ones with you. As the course of the evening made clear, Scalia is an eminently quotable guy, so let’s start with his own words:

On Textualism:

“[People ask me,] ‘When did you become a textualist?’ – as if it’s a weird affliction. I don’t know how you read text without being a textualist. You should ask others, ‘When did you stop being a textualist?’”

On a DC-circuit challenge to the FDA, over hot dogs made with mechanically deboned chicken:

“I had to read a lot about hot-dog ingredients… ‘This case presents the opportunity to test both parts of Bismarck’s aphorism that no one should see how laws or sausages are made.’”

Speaking of sausage-making – on Supreme Court Nominations and Confirmation:

“They [nominees] vote the way they do because they are who they are. They are selected because they are who they are.”
“I have mixed feelings about the confirmation process: I abhor it.”
It’s “Like having a mini Constitutional convention every time you confirm a judge.”

On New Jersey Family Trees:

“Every Italian has an Uncle Vince” in Trenton, New Jersey.

Advice to Lawyers-to-Be:

“Don’t take [law courses labeled] Law and Anything,” whether it’s law and women, literature, etc… (Scalia wasn’t terribly fond of Law and Economics, either, as will probably become clear.)
“Go to a firm that will allow you to take care of your other responsibilities, such as family, church, citizenship… Don’t go to a ‘sweatshop’.”
Scalia added he prefers billing by the job rather than the hour.

On Substantive Due Process:

“Substantive due process is a contradiction in terms.”

On Grammar:

“I’ve always been a snoot – a stickler. My father was a stickler and used to correct the grammar of opinions on the DC circuit.”

On Deep-Dish Pizza:

Scalia enjoyed Chicago’s deep-dish pizza, “but it’s not pizza. It should be called ‘tomato pie’ or something.”

The first time I tried deep-dish pizza as a child, my reaction was also, “Yuck! This isn’t pizza.” Once I stopped thinking of it as pizza, though, it did taste pretty delicious. So my tastebuds agree with Scalia. The rest of me still wonders, though, whether insisting that deep-dish pizza is non-pizza fare is being a bit too much of a snoot, too much of a stickler. Which of us, after all, can expect to control the usage of the myriad souls (in Chicago alone!) who insist on calling this tomato pie “pizza”? What I didn’t know at the time is that this pizza-vs-tomato-pie distinction also reflected how Scalia felt about sandwiches, and divided opinions on sandwiches has been a matter of real legal controversy.

Though justices Posner and Scalia have often both been described as “conservative”, they differed radically on what should count as proper legal interpretation. In particular, Posner has been about as skeptical of the rectitude of textualism as Scalia was convinced of it, leading to a serious argument over whether the definition of “sandwich” should be strictly or loosely constructed:

Unsurprisingly, Posner and Scalia have differing opinions on the 2006 landmark burrito law case White City Shopping Center, LP v. PR Restaurants, LLC — more hilariously styled Panera v. Qdoba — in which a Massachusetts judge held that a burrito is not a sandwich. Panera, whose lease agreement with the White City Shopping Center prohibited the mall from renting to another sandwich vendor, could not prevent Qdoba from moving in and selling burritos.

Scalia applauds the decision; Posner is more skeptical. In particular, he doesn’t think the dictionary definition of sandwich used in the case (“two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them”) goes far enough.

“As is often the case, the court got the definition wrong,” Posner wrote,

A sandwich does not have to have two slices of bread; it can have more than two (a club sandwich) and it can have just one (an open-faced sandwich). The slices of bread do not have to be thin, and the layer between them does not have to be thin either. The slices do not have to be slices of bread: a hamburger is regarded as a sandwich, and also a hot dog—and some people regard tacos and burritos as sandwiches, and a quesadilla is even more sandwich-like. Dictionaries are mazes in which judges are soon lost. A dictionary-centered textualism is hopeless.

Another legal scholar, David Bernstein, sided with Scalia:

In my experience, “sandwich shops” like Corner Bakery don’t sell hamburgers, and I’d be very surprised if someone offered me a sandwich and then handed me a hamburger. I’d be even more surprised to be offered a hot dog. Tacos, burritos, and quesadillas seem even further removed from what I think of as a “sandwich.”

Sure, you can make lawyerly arguments as to why any or all of these constitute sandwiches, but that’s not the question. Rather, I’m wondering if contrary to my own understanding, Posner is right that hamburgers and hot dogs are “regarded” as sandwiches, and that “some people regard” tacos and burritos as sandwiches.

This seems especially pertinent because Posner is criticizing Scalia and his co-author Brian Garner for advocating reliance on dictionary definitions of words. One reason to rely on dictionary definitions is because they provide an objective baseline, as opposed to idiosyncratic judges’ notions of what words might mean, which in turn are subject to manipulation if a judge wants to rule in favor of a particular party for whatever reason. If Posner is wrong about what people “regard” as sandwiches, I think that would tend to buttress Scalia and Garner’s point that we’re better off relying on dictionary definitions than on less objective alternatives…

In turn, Scalia and Bernstein differed over whether Lochner was rightly decided. Bernstein makes the case that it was – and even wrote a book about it. When I asked Scalia about Lochner during the Q&A, he disagreed: Scalia believed Lochner was wrongly decided, so that it was right for the New Deal court to overturn it (in West Coast Hotel v Parrish, shortly after FDR had announced his court-packing scheme).

The economic rights that Lochner-era justices considered constitutionally protected were not, to Scalia’s mind, really protected by the Constitution, but instead were “novel economic rights”. If I recall correctly, the way Scalia put it is that the Constitution does not particularly favor any specific economic system, and that it’s the business of the legislature, not the courts, to decide what kind of economic system the United States should have. “Economics should have zero effect on judging laws unless you want judges to write laws,” Scalia elaborated, and he was “not in favor of seeing novel economic rights in the Constitution any more than seeing novel non-economic rights in the Constitution.” “I assume that only those rights that are explicitly protected are protected. All the rest are up to the people.”

I still have misgivings about this. I would rather we saw ourselves as citizens with unenumerated rights subject to a government of enumerated powers than as citizens with enumerated rights subject to a government of unenumerated powers, and the deference Scalia gave “the people” in the form of the legislature would seem at odds with this vision. I must admit, though, that a panoply of unenumerated rights isn’t terribly compatible with textualism, which relies on what is written down rather than what isn’t.

Of course, the Ninth Amendment explicitly says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” To this, Scalia replied that, while the Ninth Amendment was an expression of the Founders’ belief in natural law, it doesn’t mean that these unenumerated rights are ones the courts can be reasonably expected to enforce. (Again, “I assume that only those rights that are explicitly protected are protected. All the rest are up to the people.”)

On the whole, I’m inclined to agree with Dr Rahe that, textualism and all, Scalia “was, in fact, an old-fashioned New Deal Justice.” Nonetheless, it was a pleasure to have spent an evening with such a witty, warm, great-hearted man, and whatever Posnerian sentiments I might harbor toward sandwiches, I will forever think of deep-dish pizza as “tomato pie”.

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  1. Miffed White Male Member
    Miffed White Male
    @MiffedWhiteMale

    The Reticulator:

    Miffed White Male:

    The Reticulator:

    Miffed White Male:

    The Reticulator:

    Midget Faded Rattlesnake: The funny thing about open-faced sandwiches is that their very name announces they’re a kind of sandwich. Why are they called a kind of sandwich? Shrug. Why is deep-dish pizza called pizza?

    It’s the same with leftwing fascism. It’s not exactly like Mussolini fascism in any of its stages, or any of the other fascist movements of the 1930s. But there are enough similarities that the term is informative about what you’re getting when you’re subject to leftwing fascism.

    All Facism is left-wing.

    For very special definitions of leftwing, I suppose.

    Not really. Ever read “Liberal Fascism”?

    No. I was too irritated with Jonah Goldberg since I had been using the term leftwing fascism for years before that, and he used the term “liberal” instead of leftwing. I think I was making making notes on instances of leftwing fascism about the time he became a teenager. (Although back in those first few years, I, too, still used the term “liberal.” Up until the time of the Bork hearings.)

    I’m not aware that he made the claim that all fascism is left-wing. I would not have.

    Fascism is an ideology that emphasizes the collective over the individual.  If that’s not left-wing, what’s your definition of left-wing?

    • #31
  2. Owen Findy Member
    Owen Findy
    @OwenFindy

    The Reticulator: I’m not aware that he made the claim that all fascism is left-wing. I would not have.

    This is my way of looking at it:  one of the essential differences between right-wing and left-wing is that left-wing is collectivist and right-wing is individualist.  Fascism, communism and socialism are all collectivist.  So, they’re left-wing.

    This is too simple for reality, but I’m not the one who keeps insisting on a one-dimensional philosophical and political continuum.

    • #32
  3. Grendel Member
    Grendel
    @Grendel

    The Reticulator:

    Midget Faded Rattlesnake: The funny thing about open-faced sandwiches is that their very name announces they’re a kind of sandwich. Why are they called a kind of sandwich? Shrug. Why is deep-dish pizza called pizza?

    It’s the same with leftwing fascism. It’s not exactly like Mussolini fascism in any of its stages, or any of the other fascist movements of the 1930s. But there are enough similarities that the term is informative about what you’re getting when you’re subject to leftwing fascism.

    Fascism is left-wing, but in the late ’20s, Stalin declared Fascism “objectively reactionary”, because the Fascist parties were not slavishly following Moscow’s lead in the International Socialist movement, whereupon, all the slavish left-wing parties around the world, including American Progressives, began to speak as though Communism/Socialism and (“right-wing”) Fascism were polar opposites.  Left-wing Fascism is a belated, back-door acknowledgement that they are all totalitarian, more-or-less collectivist regimes.

    • #33
  4. Miffed White Male Member
    Miffed White Male
    @MiffedWhiteMale

    Grendel:

    The Reticulator:

    Midget Faded Rattlesnake: The funny thing about open-faced sandwiches is that their very name announces they’re a kind of sandwich. Why are they called a kind of sandwich? Shrug. Why is deep-dish pizza called pizza?

    It’s the same with leftwing fascism. It’s not exactly like Mussolini fascism in any of its stages, or any of the other fascist movements of the 1930s. But there are enough similarities that the term is informative about what you’re getting when you’re subject to leftwing fascism.

    Fascism is left-wing, but in the late ’20s, Stalin declared Fascism “objectively reactionary”, because the Fascist parties were not slavishly following Moscow’s lead in the International Socialist movement, whereupon, all the slavish left-wing parties around the world, including American Progressives, began to speak as though Communism/Socialism and (“right-wing”) Fascism were polar opposites. Left-wing Fascism is a belated, back-door acknowledgement that they are all totalitarian, more-or-less collectivist regimes.

    In that context, Fascism is probably best described as a heresy of Marxism.

    • #34
  5. Percival Thatcher
    Percival
    @Percival

    The Reticulator:

    Percival:

    The Reticulator: No. I was too irritated with Jonah Goldberg since I had been using the term leftwing fascism for years before that, and he used the term “liberal” instead of leftwing.

    Goldberg got the phrase from the works of H. G. Wells.

    Now you’ve got my interest. Do you happen to know where?

    The cite was in the book (either in the forward or in chapter 1), which I have on dead-tree, and unfortunately my copy is about 1000 miles from here. I do remember that it was in 1932, because Wells also used the phrase “enlightened Nazis,” which would very shortly become something no sane man would say, left, right, or center.

    • #35
  6. Midget Faded Rattlesnake Contributor
    Midget Faded Rattlesnake
    @Midge

    Midget Faded Rattlesnake:

    Of course, the Ninth Amendment explicitly says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” To this, Scalia replied that, while the Ninth Amendment was an expression of the Founders’ belief in natural law, it doesn’t mean that these unenumerated rights are ones the courts can be reasonably expected to enforce. (Again, “I assume that only those rights that are explicitly protected are protected. All the rest are up to the people.”)

    I still have misgivings about this. I would rather we saw ourselves as citizens with unenumerated rights subject to a government of enumerated powers than as citizens with enumerated rights subject to a government of unenumerated powers, and the deference Scalia gave “the people” in the form of the legislature would seem at odds with this vision. I must admit, though, that a panoply of unenumerated rights isn’t terribly compatible with textualism, which relies on what is written down rather than what isn’t.

    Having now listened to the Law Talk episode on Scalia, I think I should revise this last sentence. The panoply of unenumerated rights is evidently incompatible with Scalia’s version of textualism, but not, for example, Richard Epstein’s.

    Epstein described textualism as interpretation that starts with the reading of the ordinary meaning of the text at the time it was written, but does not hesitate to draw on the same sources that would have been used to establish this ordinary meaning.

    So, for example, the fact that these unenumerated rights aren’t listed in the Constitution needn’t mean we must assume (as Scalia would apparently have it) that judges are wholly incompetent to say what these unenumerated rights were, leaving unenumerated rights at the mercy of the legislature. Instead, the Anglo-American legal heritage already established at the time the Constitution was written, and the drafters’ own written thoughts in other writings, tell us what some of these rights not enumerated in the Constitution really were, and judges are competent to use this background information to flesh out what the ordinary meaning of the “unenumerated rights” in the Ninth Amendment should be.

    • #36
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