Some Thoughts on Justice Antonin Scalia

This is a short article I wrote which was published on February 29, 2016 on the NACTT Academy website “Consider Chapter 13.”

Thoughts on Justice Antonin Scalia
by M. Jonathan Hayes
February 22, 2016

Antonin Scalia is a personal hero of mine.  He was not without flaws of course and I suspect that he and I would be on the opposite side of most issues, once the voting began.  I didn’t care for his taunting manner and his drive to get a laugh at the expense of attorneys arguing before the Supreme Court.  His dissents were sometimes embarrassing.  He sometimes all but called his colleagues morons.   I agree with other commentators that the predictability of his views lessened his influence with his colleagues.  

But I have to say I learned more about how law works from Justice Scalia than any other person in my career.  He taught me the difference between the courts and the legislature.  He taught me what judges and lawyers do.  It began for me with his book A Matter of Interpretation: Federal Courts and the Law, Princeton University Press (July 27, 1998).   Scalia begins with the joy of the first year of law school.  Common law – “What fun,” he says.  You get to be King!  The judge figures out what is best for the combatants in front of him and somehow that becomes binding on judges who rule later on the same issue.  Unless of course the next parties “distinguish” their case from the previous case, then the next judge simply creates a new rule which is then the common law.  “All of this would be an unqualified good,” he says, “were it not for a trend in government … called democracy.”

In a democracy, we the people chose someone among us to meet with others chosen for the task to decide what’s best for all of us as a group.  Those people make the laws, dictating what is best for us as a whole, making policy decisions.  Courts enforce those laws.  I say that at least ten times each three hour class I teach.  Students fly right off into the fair result of the question that I just asked.  What the result should be based on their own particular views of fairness and what reasonable means to them and what ought to be the rule and the result.

So courts figure out what Congress or the state legislature or the city council or an endless number of governmental agencies meant when it said “we the people” can or cannot do.  Nothing more, nothing less.  Scalia writes, “By far the greatest part of what I and all federal judges do is interpret the meaning of federal statutes and federal agency regulations.”   How do they do that?  through rules of statutory interpretation.  What does that mean?  That is the next 40 pages of his book.

One of his foundational rules of statutory interpretation is that the constitution should be interpreted according to the original intent of our founding fathers.  Cruel and unusual punishment means, he writes over and over, what the founding fathers thought it meant.  But times have changed, says Justice Stephen Breyer and the “liberal” wing of the court.  Scalia responds by speculating (sarcastically) that our founding fathers were not thinking that “cruel and unusual punishment shall mean what nine old men sitting on the supreme court thinks it means on any given day. ”  It is a point well taken.

What about his bankruptcy jurisprudence?  It is reported that Justice Scalia wrote the majority opinion in 13 bankruptcy cases and dissenting opinions in four others.[1]  I would have guessed that there were many more dissents.  There are several concurring opinions that I can think of offhand, including the recent seminal cases of Stern v. Marshall and Executive Benefits v. Arkinson (In re Bellingham).

His most meaningful majority opinion for bankruptcy practitioners, is United Sav. Ass’n of Texas v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365 (1988).  It was also his first opinion for the majority in a bankruptcy case.  Timbers created a huge buzz among us debtor attorneys because it held that a secured creditor has no right to adequate protection unless the property is going down in value.  At the time property values were going up.  “Take that you banks demanding monthly payments from my poor downtrodden debtor!”  But that is what section 361 says – periodic payments equal to the decrease in the value of the creditor’s interest in the property.  If you do not like the result, tell Congress!  I agree.

Scalia’s next most meaningful majority opinion is BFP v. Resolution Trust Corp., 511 U.S. 531 (1994).  It is an example of how he would, at times, take a practical approach to a problem.  In BFP the court, thankfully, ruled that “a noncollusive and regularly conducted nonjudicial foreclosure sale” cannot be a fraudulent conveyance, at least based on the price paid at the foreclosure sale.  Scalia still gets a serious amount of guff from the pundits for ignoring his statutory construction approach and ruling based on the pragmatic consequences of permitting foreclosure sales to be attacked by debtors as a sale for “less than reasonably equivalent value.”

His pragmatism shows itself also in his majority opinions in Citizens Bank of Maryland v. Strumpf, 516 U.S. 16 (1995), ruling that a bank may “freeze” the debtor’s bank account without violating the automatic stay when the bank has offset rights in the account, and Young v. U.S., 535 U.S. 43 (2002), ruling that the three year rule for dischargeability of income taxes is tolled during intervening bankruptcy cases.  These results were driven much more by a desire to find a reasonable and practical result than hard core textualism.

As to dissents in the bankruptcy arena, his two big ones were Dewsnup v. Timm, 502 U.S. 410 (1992) and Till v. SCS Credit Corp. 541 U.S. 465 (2004).  The debtor world is well aware of Dewsnup which holds that “allowed secured claim” in section 506(d) does not mean the same thing as “allowed secured claim” three paragraphs earlier in 506(a) – its meaning therefore in 506(d) is ambiguous.  Huh?  “When a seemingly clear provision can be pronounced ‘ambiguous’ sans textual and structural analysis, and when the assumption of uniform meaning is replaced by ‘one subsection-at-a-time’ interpretation, innumerable statutory texts become worth litigating in the bankruptcy field.”  502 U.S. at 435

As to Till, a surprisingly oft cited case given that there was no majority opinion, Scalia agreed that risk was a factor in determining “reasonable interest” to be paid to a secured creditor under the Plan but was adamant that the contract price should be assumed to be reasonable in the first instance.  Thankfully he was in the minority (again, writing as the debtor lawyer I am).

My friend Jim King commented to me after we attended oral argument at the Supreme Court a few years ago:

“I was in awe … seeing Judge Stevens walk out with that normal human being smile like everybody else has, it wasn’t otherworldly like I expected.  It was special.  It was magical and special and to be sworn in was extremely moving.” [2]

I had the same feeling watching and listening to Antonin Scalia.  He was such a regular guy.  Interested, listening, asking questions, being funny.  Rest in peace Nino.

Final Note:

I sent a copy of this essay to my son Hunter Hayes who is an associate at Munger, Tolles & Olson, LLP (and a lot smarter than me).  This is part of his response:

I think you go too easy on him, but obviously our views are just different on that.  We interpret the First and Fourth Amendments in line with modern standards – just about everything on TV today could have been sanctioned as obscene in 1791 without violating the First Amendment, because it’s interpreted as incorporating a community-based reasonableness standard.  Why not the phrase “equal protection of the laws,” which is exactly as mushy as the First Amendment?  And remember when Justice Alito joked that Scalia wanted to know what the founding fathers thought about violent video games?  There’s some things that just become ridiculous when it’s all original intent.  And if what the founding fathers actually wanted were legal standards that would grow with time, principles to form the background of the democracy rather than specific legal rules that stay static throughout time, wouldn’t they use exactly the mushy words they used in the Bill of Rights?  “Originalism” is a great way to read modern statutes – but I doubt it’s how the founding fathers intended us to read the Constitution.  Maybe it’s the most expedient method of constitutional interpretation, because it produces a verifiable outcome, but that doesn’t make it the best.  And let’s not pretend that it’s not used just to reach conservative outcomes.  Scalia’s opinions in the 90s and 00s on LGBT discrimination are downright hateful in parts.

I really do like this [my article].  Too much of the stuff about Scalia is so narrow-minded, and I wish more left-leaning people would recognize him as the genius he was.


[1] Plan Proponent – Justice Antonin Scalia’s Bankruptcy Opinions; David Bury, 16 Feb 2016 01:39 PM PST

[2] Quoted from Jim’s oral history which may be found on-line at the Biddle Law Library, University of Pennsylvania School of Law.

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