The late justice Antonin Scalia thought his best opinion was his dissent in Morrison v. Olson, a case decided on June 29, 1988, when he was finishing just his second term on the Supreme Court. At issue was the constitutionality of the independent counsel law, first passed in 1978. By a vote of 7-to-1 (Anthony Kennedy recused), with Chief Justice William Rehnquist writing, the Court upheld the statute. Only Scalia was in dissent. In 1999, however, Congress declined to reauthorize the law. Scalia’s remarkable opinion influenced that eventual result, demonstrating just how important a single justice can be.
The independent counsel law was the first of its kind, a response to President Richard Nixon’s firing of the special prosecutor the administration appointed to investigate Watergate. The law provided for a special panel of judges who would appoint outside lawyers to investigate allegations of criminal conduct on the part of high-ranking executive-branch officials. The attorney general could remove an independent counsel but only for “good cause.” Congress designed the appointment and removal provisions, along with other “controls,” to ensure that the counsels were independent of the administration, as their title implies, and thus able to conduct investigations without interference from a president or his aides.
The law was challenged as a violation of the separation of powers. The Rehnquist majority dealt with the law’s appointment and removal provisions before turning to the separation of powers. Scalia said the majority’s approach to the case was “backwards” and instead began his opinion with a discussion of separation of powers that drew upon The Federalist. Scalia wrote that the principle “is the absolutely central guarantee of a just government” and that “without a secure structure of separated powers, our Bill of Rights would be worthless.”
Scalia identified the powers the Constitution vests in the three departments of government and declared, “That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish—so that [quoting James Madison] ‘a gradual concentration of the several powers in the same department’ can effectively be resisted” and, by implication, our rights preserved.
“Frequently,” Scalia continued, “an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.”
That last sentence is arguably the most famous passage in a Scalia opinion. The quarterly legal journal Green Bag produces bobbleheads of the justices. The collectibles have visual allusions to especially characteristic opinions, and Scalia’s bobblehead includes a wolf and has the justice standing on a dictionary, an allusion to his keen ability to use words—indeed, to his distinction as a master stylist, on display in this passage (and elsewhere) in his dissent in Morrison.
The legal writer Yury Kapgan points out that the metaphor of the wolf clad in sheep’s clothing does not convey the usual message that appearances can be deceiving but “just the opposite,” as the reader learns from the revelation at paragraph’s end that “this wolf comes as a wolf.” There is, writes Kapgan, “no disguise here, no sheep’s clothing, appearances are what they are—clear.” And precisely because “this wolf comes as a wolf,” there is really no need for “careful and perceptive analysis” for the simple reason that the potential of the asserted principle to change the equilibrium of power is immediately evident. “This wolf” will effect an unconstitutional change in the balance of powers.
In his analysis of the statute, Scalia relied on constitutional text, pointing out that Article II vests not some but all of the executive power in a president. And because it does, the independent counsel law must be unconstitutional “if the following two questions” are answered affirmatively: “Is the conduct of a criminal prosecution . . . the exercise of purely executive power?” and “Does the statute deprive the President of the United States of exclusive control over the exercise of that power?” Scalia said they must be answered affirmatively: the first because “governmental investigation and prosecution of crimes is a quintessentially executive function,” the second because “the whole object of the statute” is to deny a president exclusive control over the exercise of purely executive power.
Scalia maintained that “it is ultimately irrelevant how much the statute reduces Presidential control,” since any such reduction violates the Constitution, which, again, vests all of the executive power in a president. Scalia asked the obvious follow-up question: whether it is “unthinkable that the president should have such exclusive power, even when alleged crimes by him or his close associates are at issue.” He conceded that “a system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused.” But he also pointed out that “while the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty.”
The justice highlighted the two checks against any branch’s abuse of its exclusive powers. One is retaliation by one of the other branch’s use of its exclusive power: Congress may impeach the executive who willfully fails to enforce the laws, for example. The other is the political check that the people will replace those in the political branches who are guilty of abuse.
Scalia criticized the appointment and removal provisions of the law. Yet of keener interest to him was the statute’s practical impact: how it effectively compels investigations that would otherwise not be opened and prosecutions that would otherwise not be brought; how it weakens a presidency by reducing the zeal of a president’s staff (“who typically have no political base of support”); and how it enfeebles a president in his confrontations with Congress by eroding his public support. The wolf at work, you could say.
“In the 10 years since the institution of the independent counsel was established by law,” wrote Scalia, “there have been nine highly publicized investigations, a source of constant political damage to two administrations.” And do those investigated under the law receive fair treatment? “The mini-Executive that is the independent counsel . . . is intentionally cut off from the unifying influence of the Justice Department, and from the perspective that multiple responsibilities provide,” wrote Scalia. So what is from the department’s perspective a technical violation may be deemed an indictable offense by an independent counsel.
That Scalia saw Morrison as a case about “power”; that he understood the executive power as the Framers and the Court’s precedents did, with all of it being vested in a president; that he identified the multiple ways in which the independent counsel law upset the equilibrium of power, to the detriment of individual liberty: These are reasons to salute Scalia’s dissent. But we should also credit him with courage. He was then the youngest justice, and his dissent was from the majority opinion of a distinguished chief justice who was also a judicial conservative, broadly speaking.
Moreover, the statute he found unconstitutional enjoyed substantial support in Congress and the media. After all, why shouldn’t the investigation of allegations against high-ranking executive officers have some special or independent place in our government, sheltered from almost all other interests and concerns? Scalia, alone on the Court, challenged that idea.
In the 1990s, the independent counsel law still had the support of congressional Democrats. The Clinton administration also backed the law. But then Democrats came to experience the operation of the law, as independent counsels were appointed to investigate President Clinton and five of his cabinet members.
When the statute came up for renewal in 1999, the Clinton administration, through the Justice Department, changed its position. “Having worked with the act,” attorney general Janet Reno told the Senate Committee on Governmental Affairs, “I have come to believe—after much reflection and with great reluctance—that [it] is structurally flawed and that those flaws cannot be corrected within our constitutional framework.” Reno went on to discuss the separation of powers and the lack of accountability on the part of independent counsels for exercises of power that are plainly executive. “Here,” she said, “I am paraphrasing Justice Scalia’s dissent in Morrison.”
His dissent had become a rallying point for old and new critics of the law alike, and they won out when Congress let the law lapse. Morrison itself is still on the books; it has not been overruled. But the statute the decision sustained is effectively void; the wolf no longer comes.
Not a bad ending for a lawsuit in which the executive power and the balance of powers, both so fundamental to our constitutional order, were so conspicuously at stake.
Terry Eastland is an executive editor at The Weekly Standard.
