I don’t know whether Jason Linkins at the Huffington Post is a lawyer, but from this post I have to assume not – and that he really should have talked to a lawyer before publishing it.

The main thrust of Linkins’ post is his argument that Justice Scalia in his 2002 opinion in Republican Party of Minnesota v. White somehow endorsed the notion that it’s appropriate for judges to make policy. (I have discussed before the importance of that opinion in judicial-nomination fights for a different reason: Justice Scalia noted that the restrictions in question imposed a nonsensical distinction between what a judge can say before and after announcing a candidacy for judicial office, and in so doing explained why it is silly to question whether a judge is “impartial” simply because he or she has previously stated views about what the law is.)

So, did Justice Scalia defend the making of policy by judges? It’s true that nobody really disputes that at the margins, a judge in many cases will be involved in some level of policymaking and policy considerations, and that some of the questions courts must resolve entail the judges’ view of how the world actually works. Justice Scalia, however, would seem a curious witness to call on this point, as he is the figure in American public life most associated with the view that the legitimacy of a court’s decisions depends upon limiting judges’ discretion to the maximum possible extent and never losing sight of the fact that the Constitution and federal statutes are democratic enactments whose interpretation must at all times conform to what the people understood they meant at the time they became law.

Let’s look at the quotes Linkins chooses and why they are – assuming Linkins was writing in good faith – so hilariously misguided.

White involved a Minnesota statute restricting speech by candidates for elected judicial office, which Justice Scalia (writing for the Court), characteristically found to be inconsistent with the unambiguous free speech guarantees of the First Amendment. Linkins selects the following quote (emphasis his):

This complete separation of the judiciary from the enterprise of “representative government” might have some truth in those countries where judges neither make law themselves nor set aside the laws enacted by the legislature. It is not a true picture of the American system. Not only do state-court judges possess the power to “make” common law, but they have the immense power to shape the States’ constitutions as well. See, e.g., Baker v. State, 170 Vt. 194, 744 A. 2d 864 (1999). Which is precisely why the election of state judges became popular.

Taking the language in bold first, Justice Scalia was talking about the common law. For the non-lawyers out there, a lot of areas of state law are common law, i.e., judges apply rules developed by judges. This is true of contract law, or personal injury law, for example. State legislatures can and do add their own rules, and judges aren’t unconstrained in making common law – the weight of precedent is important in areas where judge-made law has developed over centuries – but a common law court indisputably can and does make policy. Quite sensibly, Justice Scalia notes that in light of this legitimate policymaking power, the citizenry in electing state court judges should be allowed to hear their policy views.

That has nearly nothing to do with the role of the federal courts, however, where Judge Sotomayor and Justice Scalia both sit. It has been established law since the 1930s – it’s one of the first things every law student learns – that there is no such thing as general federal common law. There are some discrete areas of federal common law – maritime law, federal contractor law, etc. – but the big ticket issues for the Supreme Court are its constitutional and federal statutory dockets. In point of fact, Justice Scalia has been an opponent of the expansion of federal common law (see his 1994 opinion for the Court in O’Melveny & Myers v FDIC). Still less is the power to make common law a legitimate way for judges to approach the Constitution.

Scalia’s reference to state-court power over state constitutional law is, to put it mildly, not an endorsement of the sort of judicial policymaking he has long railed against, as the citation to the Vermont Supreme Court’s decision in Baker – which compelled Vermont’s lawmakers to accept same-sex civil unions on questionably creative state constitutional grounds – should have signalled to the attentive reader. His perhaps-subtle point was, rather, that voters should get to hear more from judges precisely because they have lately been in the habit of taking issues away from elected officials as they did in Baker. The final sentence of the quotation makes that rather explicit: voters want to elect judges to stop them from making policy against the voters’ wishes.

Then we have a further extended quotation from footnote 12 of the opinion (it’s a footnote to that same paragraph dealing simply with rebutting further arguments by the dissents):

Although Justice [John Paul] Stevens at times appears to agree with Justice [Ruth Bader] Ginsburg’s premise that the judiciary is completely separated from the enterprise of representative government, post, at 3 (“[E]very good judge is fully aware of the distinction between the law and a personal point of view”), he eventually appears to concede that the separation does not hold true for many judges who sit on courts of last resort, post, at 3 (“If he is not a judge on the highest court in the State, he has an obligation to follow the precedent of that court, not his personal views or public opinion polls”); post, at 3, n. 2. Even if the policy making capacity of judges were limited to courts of last resort, that would only prove that the announce clause fails strict scrutiny. “[I]f announcing one’s views in the context of a campaign for the State Supreme Court might be” protected speech, post, at 3, n. 2, then-even if announcing one’s views in the context of a campaign for a lower court were not protected speech, ibid.-the announce clause would not be narrowly tailored, since it applies to high- and low-court candidates alike. In fact, however, the judges of inferior courts often “make law,” since the precedent of the highest court does not cover every situation, and not every case is reviewed. Justice Stevens has repeatedly expressed the view that a settled course of lower court opinions binds the highest court. See, e.g., Reves v. Ernst & Young, 494 U.S. 56, 74 (1990) (concurring opinion); McNally v. United States, 483 U.S. 350, 376–377 (1987) (dissenting opinion).

Emphasis again Linkins’. Obviously, this is simply a continuation of the point about the state judges who were at issue in White (plus Justice Scalia is obviously trying to throw some of Justice Stevens’ own prior views back at him, without necessarily endorsing them).

Supreme Court fights involve the basic, core issue of the legitimacy of judicial power and the ultimate scope of democratic self-government. Because of that, and because the core concept of legitimacy is one that can and should be understood by ordinary citizens, I would not argue that the issues at hand should be left solely to the lawyers to argue about. But just as pundits and bloggers sometimes need to talk to military people before making mistakes about matters within the sphere of military expertise, it’s a good idea to ask a lawyer before you go quoting judicial opinions. You might, like Jason Linkins, end up making a fool of yourself.