{"id":2641,"date":"2023-01-19T09:02:30","date_gmt":"2023-01-19T13:02:30","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jlpp\/?p=2641"},"modified":"2025-12-22T18:50:14","modified_gmt":"2025-12-22T22:50:14","slug":"scalia-the-legal-sociologist","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jlpp\/scalia-the-legal-sociologist\/","title":{"rendered":"Scalia the Legal Sociologist \u2013 Lawrence Lessig"},"content":{"rendered":"\n
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Download a PDF<\/a><\/div>\n<\/div>\n\n\n\n

Scalia the Legal Sociologist<\/h2>\n\n\n\n

Lawrence Lessig*<\/a><\/strong><\/p>\n\n\n\n

What follows is a lightly footnoted version of a lecture delivered at Harvard Law School on October 19, 2022, as part of the Herbert W. Vaughan Academic Program. A video of the lecture is available online at https:\/\/youtu.be\/ajftWFpSLzw and the complete written remarks can be accessed at https:\/\/journals.law.harvard.edu\/jlpp\/the-2022-herbert-w-vaughan-academic-program.<\/em><\/p>\n\n\n\n

* * *<\/p>\n\n\n\n

I want to talk about one of my favorite \u201coriginal Scalia\u201d opinions\u2014one not mentioned by Professor Vermeule, either today or in his extraordinary book, Common Good Constitutionalism.[1]<\/a> This is an opinion written\u2014it is reported, as the opinion was per curiam\u2014by Judge Scalia, when he served on the D.C. Circuit Court of Appeals. The case involved the Gramm-Rudman-Hollings Act,[2]<\/a> which was designed to reduce the federal deficit by giving to the comptroller the power to cut the budget if Congress failed to meet certain spending targets. The D.C. Circuit struck the act; Bowsher v. Synar<\/em>,[3]<\/a> affirmed the D.C. Circuit.<\/p>\n\n\n\n

Here\u2019s the passage of the \u201coriginal Scalia\u201d that I want to focus upon, discussing the removal cases of the Supreme Court:<\/p>\n\n\n\n

These cases reflect considerable shifts over the course of time, not only in the Supreme Court\u2019s resolutions of particular issues relating to the removal power, but more importantly in the constitutional premises underlying those resolutions. . . . Justice Sutherland\u2019s decision in Humphrey<\/em>\u2019s Executor<\/em>, handed down the same day as A.L.A. Schechter Poultry<\/em> . . . is stamped with some of the political science preconceptions characteristic of its era and not of the present day . . . . It is not as obvious today as it seemed in the 1930s that there can be such things as genuinely \u201cindependent\u201d regulatory agencies . . . or, indeed, that the decisions of such agencies so clearly involve scientific judgment rather than political choice that it is even theoretically desirable to insulate them from the democratic process.[4]<\/sup><\/a><\/p>\n\n\n\n

What\u2019s striking about this opinion is that it is Scalia\u2014speaking as legal sociologist. It is Scalia reporting something about us, or at least about them in the 1980s. It is Scalia telling us something about how they spoke, about what their \u201cpreconceptions\u201d were. Those \u201cpreconceptions\u201d would be familiar to anyone educated at the Harvard Law School in the 1950s. They were realist preconceptions; they would mature into critical legal studies preconceptions. And according to those preconceptions, when lawyers or judges tell us they are telling us about science, they are actually telling us about politics. Or at least, when they are telling us what science requires, it is not \u201cso clear\u201d that those tellings are the project of \u201cscientific judgment\u201d rather than \u201cpolitical choice.\u201d<\/p>\n\n\n\n

This realism was central to the original Scalia\u2014too. Think about his opinion in Printz v. United States<\/em>,[5]<\/a> striking the Brady Act, rejecting the idea that commandeering state administrators was different from commandeering state legislatures:<\/p>\n\n\n\n

The Government\u2019s distinction between \u201cmaking\u201d law and merely \u201cenforcing\u201d it, between \u201cpolicymaking\u201d and mere \u201cimplementation,\u201d is an interesting one. . . . Executive action that has utterly no policymaking component is rare . . . . Is it really true that there is no policymaking involved in deciding, for example, what \u201creasonable efforts\u201d shall be expended to conduct a background check?[6]<\/a><\/p>\n\n\n\n

Or, in other words, is it really not true that \u201cIt\u2019s all politics\u201d?<\/p>\n\n\n\n

But there\u2019s a subtlety in Scalia\u2019s language that we should not overlook. Scalia\u2019s not telling us how things are. He is telling us how we<\/em>, now, view things. He\u2019s not rejecting the idea that at an earlier time, such a line could be drawn. Whether it could be drawn or not was a function of them, and how they spoke, or understood the law. Just because we can\u2019t draw that line doesn\u2019t mean they couldn\u2019t, just as the fact that we can\u2019t speak Latin doesn\u2019t mean Justice Bradley (and most of the best 19th century justices) couldn\u2019t. What we can do is a function of us, and our language and practice and culture\u2014that\u2019s why I called it sociology. And what we can\u2019t do doesn\u2019t entail anything about what another culture at a different time could or could not do.<\/p>\n\n\n\n

Seen like this, Scalia\u2019s language should remind us of another extraordinary 20th century justice, also educated at this law school, Justice Louis Brandeis. In one of that century\u2019s most important cases\u2014and again, a case not mentioned by Professor Vermeule either today or in his book\u2014the Court overturned what is said to be the doctrine of Swift v. Tyson<\/em>.[7]<\/a> In Erie v. Tompkins<\/em>,[8]<\/a> Brandeis says this:<\/p>\n\n\n\n

The doctrine rests upon the assumption that there is \u201ca transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute\u201d . . . . But law in the sense in which courts speak of it today does not exist without some definite authority behind it. The common law so far as it is enforced in a State . . . is not the common law generally but the law of that State existing by the authority of that State without regard to what it may have been in England or anywhere else.[9]<\/a><\/p>\n\n\n\n

Here again is a kind of realism. Whatever they might have been able to do in the 19th century, it is not something we can do today. \u201cLaw in the sense in which courts speak of it today\u201d does not allow it. And instead, we must craft our practice\u2014and indeed the constitution, for remember, Erie<\/em> declared the practice of federal general common law unconstitutional\u2014<\/em>according to our present \u201cspeaking\u201d abilities.<\/p>\n\n\n\n

I say all this because I want to suggest that at the heart of Professor Vermeule\u2019s extraordinary work\u2014both his analysis of Scalia today and his book\u2014<\/em>is a presumption about our abilities today that I don\u2019t think we can take for granted. Professor Vermeule\u2019s work asks us to reimagine\u2014so we might practice again\u2014the classical model of law. In this classical model, law is both lex<\/em>\u2014what legislatures, presumptively, write\u2014and ius<\/em>\u2014the principles and traditions and morals behind that lex<\/em>. Scalia, Professor Vermeule says, aims to \u201ctranslate[]\u201d this classical model to the American constitutional order.[10]<\/a> And in doing so, he recognizes an unavoidable need for the law applier\u2014whether judge or administrator\u2014to make \u201cdispensations,\u201d \u201ccase-specific adjustment of vague, ambiguous or overly general language to particular circumstances, in order to promote the public-regarding ends the legislator had in view.\u201d[11]<\/a> Professor Vermeule urges\u2014not so much here, today, but in his book\u2014a return to this practice. And he now bolsters the argument for return by invoking the Scalia that is easiest for most of us to accept, or respect\u2014the original Scalia.<\/p>\n\n\n\n

But the question I want to press\u2014drawing upon the Scalia from Synar<\/em> and Printz<\/em>, and inspired by Brandeis in Erie<\/em>\u2014is this: Are we, as a legal culture, today, capable of this practice, this classical model practice, anymore? Are we skilled in it? Could we imagine teaching it to our students? And more pressingly, are we able to imagine administrators\u2014whether courts or agencies\u2014engaging in a practice of \u201cadjusting vague, ambiguous or overly general language to particular circumstances, in order to promote the public regarding purposes [that that administrator believes the] legislature had in view\u201d\u2014without viewing such \u201cadjusting\u201d as just another example of politics?<\/p>\n\n\n\n

Because such a practice presumes something about the legal culture that engages in it. It presumes, in particular, a trust or confidence or good faith. It imagines a culture that doesn\u2019t meet each act of a Supreme Court with a skeptical, political eye. It presumes that we don\u2019t look for the ulterior motive, a political motive, behind every decision\u2014and speak about that openly, as we do, for example, about Dobbs v. Jackson Women<\/em>\u2019s Health Organization<\/em>,[12]<\/a> or Bush v. Gore<\/em>,[13]<\/a> or whatever\u2014because presumably, the institutions have not given us any reason, or any good reason, to be so suspicious.<\/p>\n\n\n\n

Yet I would submit, our legal culture today is not the culture that the classical model presumes. Whether justified or not, our culture today, our legal culture, is deeply suspicious. Profoundly skeptical. And in our culture today, whenever any court (and from the perspective of the D.C. Circuit, any agency) acts, we do not presume it acts in the public interest. We instead suspect it acts for a political interest. That\u2019s not necessarily partisan, but it reads like that. And what that means is that any act of \u201cdispensation\u201d becomes presumptively illegitimate, at least when it comes down on one side of an issue seen to be political.[14]<\/sup><\/a><\/p>\n\n\n\n

My sense is that Scalia sensed this. And that what explains his evolution\u2014his abandonment of the classical model\u2014is not so much him, as his perception about us\u2014about the law in our legal culture today. And I would agree with this perception. What explains his apostasy is the belief that, to remix Synar<\/em>, \u201csuch \u2018dispensations\u2019 do not so clearly involve \u2018public regarding purposes\u2019 rather than political choice\u201d; or to remix Printz, <\/em>\u201cIs it really true that there is no policymaking involved in deciding, for example, what this proper \u2018dispensation\u2019 is?\u201d Or finally, to remix Brandeis, Scalia\u2019s apostasy is the product of believing that \u201claw in the sense in which courts speak of it today does not exist without some definite politics behind it,\u201d and that the job of the courts, therefore, is to minimize as much as possible any action that might be seen to be the product of such politics.<\/p>\n\n\n\n

From this perspective, Scalia\u2019s words but a month before he passed make perfect sense: \u201cdespite my veneration for Thomas Aquinas, I plan to contradict what Aquinas says about judging. . . . It is necessary to judge according to the written law\u2014period.\u201d[15]<\/a> Why? Because it is right, always and everywhere? Or because it is right, for us, given our deeply realist legal culture, now?<\/p>\n\n\n\n

I suggest the Evolved Scalia has simply translated Thomas Aquinas, or the classical tradition, from a very different legal culture into our own, very skeptical, legal culture. Or more precisely, that Scalia has translated Aquinas in light of his recognition of the \u201cpublic regarding purpose\u201d that Scalia believed the Constitution imposed upon the Court\u2014to minimize judicial acts that might be seen to be political acts. The Evolved Scalia is simply the Original Scalia, translated. Respecting fidelity to Aquinas\u2019 meaning, subject to the constraint of the judicial role.<\/p>\n\n\n\n

 <\/p>\n\n\n\n

*<\/a> Roy L. Furman Professor of Law and Leadership, Harvard Law School.<\/p>\n\n\n\n

[1]<\/a> Adrian Vermeule, Common Good Constitutionalism (2022).<\/p>\n\n\n\n

[2]<\/a> Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. No. 99-177, 99 Stat. 1037 (codified as amended in scattered sections of 2 U.S.C.).<\/p>\n\n\n\n

[3]<\/a> 478 U.S. 714 (1986).<\/p>\n\n\n\n

[4]<\/sup><\/a> Synar v. United States, 626 F. Supp. 1374, 1398 (1986) (per curiam).<\/p>\n\n\n\n

[5]<\/a> 521 U.S. 898 (1987).<\/p>\n\n\n\n

[6]<\/a> Id. <\/em>at 927.<\/p>\n\n\n\n

[7]<\/a> 41 U.S. 1 (1842).<\/p>\n\n\n\n

[8]<\/a> 304 U.S. 64 (1938).<\/p>\n\n\n\n

[9]<\/a> Id. <\/em>at 79.<\/p>\n\n\n\n

[10]<\/a> Adrian Vermeule, The Original Scalia<\/em>, 2023 Harv. J. L. & Pub. Pol\u2019y Per Curiam 2, *2 (2023).<\/p>\n\n\n\n

[11]<\/a> Id.<\/em> at *4.<\/p>\n\n\n\n

[12]<\/a> 142 S. Ct. 2228 (2022).<\/p>\n\n\n\n

[13]<\/a> 531 U.S. 98 (2000).<\/p>\n\n\n\n

[14]<\/sup><\/a> Professor Vermeule doubts that \u201cwe\u201d\u2014as in the \u201cwidespread public\u201d\u2014are realist in the sense I\u2019ve described. Vermeule, supra <\/em>note 10, at *14\u201315 n.91. I have no doubt he is correct about the folk sense of justice in ordinary people. Yet the question I\u2019m raising is whether that folk sense of justice transfers to the institutions of justice. A poll in November 2021 found 60% of Americans believe the Supreme Court is motivated \u201cprimarily by politics,\u201d while only 32% believe it is \u201cmotivated by the law.\u201d That represents a 6 point increase in skepticism in just two years. Bryan Metzger & Oma Seddiq, More than 60% of Americans say the Supreme Court is motivated by politics, while just 32% believe they rule based on law: poll<\/em>, Insider (Nov. 19, 2021), https:\/\/www.businessinsider.com\/61-percent-think-supreme-court-motivated-politics-not-law-poll-2021-11. That increase is consistent with the high and growing disapproval (58%) of the Supreme Court. Supreme Court<\/em>, Gallup, https:\/\/news.gallup.com\/poll\/4732\/Supreme-Court.aspx. Against that background, it seems difficult, confidence of the people in their own sense of justice notwithstanding, to imagine courts becoming more interpretively ambitious, and sustaining through that interpretive ambition greater trust from the people. Much more likely, in my view, is that confidence would be weakened even more, as the charge that the institutions were political would become easier to make.<\/p>\n\n\n\n

[15]<\/a> Antonin Scalia, Scalia Speaks: Reflections on Law, Faith, and Life Well Lived 245 (Christopher J. Scalia & Edward Whelan eds., 2017).<\/p>\n","protected":false},"excerpt":{"rendered":"

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