Overrated, Thy Name Is Nino

I mentioned in my initial post about Caperton that it was a classic example of Scalia’s showy rhetoric concealing substantive points of highly dubious quality. To unpack this a bit, let’s consider the argument:

A Talmudic maxim instructs with respect to the Scripture: “Turn it over, and turn it over, for all is therein.” The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed. 1935). Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not. The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed—which is why some wrongs and imperfections have been called nonjusticiable.

The digression into Talmudic scholarship is actually pretty lame; his rhetorical gambits sometimes are more clever than this. But it’s there to distract you from the fact that the sentence that does all the work — “The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution” — is a feeble strawman beloved by both Scalia and the puddle-deep conservative pundits he resembles much more often than someone as smart as he is should. And it’s worse in context. It wouldn’t be out of place in a decision, that, say, used the 14th Amendment to try to fix major irrationalities in the tax code or the health care system, although the fact that one couldn’t imagine the Court doing such a thing makes clear how specious the argument is. But how is it somehow beyond the legitimate role of courts to attempt to ensure that lower courts are affording fair hearings? If this isn’t relevant to due process, what is? If the argument wasn’t so unserious, Scalia should be refunding most of his salary.

If I can borrow a point Mark Tushnet has made elsewhere, I’d also note that I don’t see any material difference between Caperton and Scalia’s opinion in Heller. In the latter case, Scalia (very plausibly) identified an individual right whose contours he left quite vague, applied it to nullify a relatively draconian statute, made it clear that some other more marginal and more common regulations would probably remain constitutional, and left marginal cases for future litigation. Similarly, Caperton plausibly identified a due process standard, applied it to a fairly extreme set of facts, made clear that more common, smaller donations would not require recusal, and left future marginal cases to future litigation. The Court acted appropriately in both cases, and Scalia’s claim that Caperton represents an “expansion of our constitutional mandate in a manner ungoverned by any discernable rule” a gross exaggeration.