Scalia as Procrustes for the Majority, Scalia as Cassandra in Dissent

Abstract

Using Greek myth to illuminate some of the late Justice Scalia's rhetorical moves, this essay argues that as an author of majority opinions Scalia was often Procrustes, leaving no case behind but forcing all prior doctrine into the shape he needed for the new law of rules he was announcing. In dissent, by contrast, Scalia could be Cassandra: describing what for him are the drastic consequences he foresees from the majority’s logic, he often paints a prophetic picture which in time comes true, perhaps in part because of rather than in spite of his horrified articulation of an opinion’s implications. While the progression of gay rights cases from Romer through Obergefell is the clearest and most sustained example of Scalia as Cassandra, his procrustean majority opinions include Employment Division v. Smith. For each of these cases, the essay examines the structure and unintended consequences of Scalia's approach.Scalia's own procrustean moves as a federal judge are in some tension with his criticism of similar behavior by non-common law judges in his 1995 Tanner Lectures on Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws. The essay explores whether some of that tension might be reduced by focusing on the fact that Scalia's most procrustean moves come in cases involving the incorporated bill of rights, for which he sees no textual warrant and therefore is of necessity acting as a common law judge, without access to a civil-law-style alternative to the methodologies of the common law.