My co-blogger, Mike Rappaport, has opened up a discussion about the flaws of Justice Scalia’s jurisprudence. I think this is an important subject. Despite his mistakes, Justice Scalia was a great justice. But precisely because of his greatness, his errors, unless noted and analyzed, may hold back progress in the jurisprudential theories he championed.
In constitutional law, I think Justice Scalia’s greatest systematic mistake was his treatment of precedent. One of his most famous statements on the original meaning of the Constitution was one in which he argued for following precedent: “I am an originalist, not a nut.” Unfortunately, his argument for precedent here does not seemed to be based on the Constitution itself, or tied to any rule. It is merely a maxim of prudence. Overruling some cases could be too disruptive to entertain.
And to my knowledge, he never provided any further analysis of how to tell us when cases were too disruptive to be overruled and when they were not, let alone whether this was a sensible rule for evaluating precedent, even if it should be thought of as a rule. As a result, he is open to the criticism that he picked and choose among precedents he liked (or at least could live with) and those he hated.
Thus, for instance, he would never acquiesce in the fundamental right cases, like Roe, but he was willing to follow and perhaps even extend cases, like Wickard v. Filburn. It cannot even be said that his distinction in applying precedents was between cases about rights and cases about structure, because he seemed far more hostile to precedents restricting the unitary executive than those expanding federal power.
Scalia is also famous for saying that the rule of laws is the law of rules. Particularly, because much of constitutional law revolves around the question of whether precedent should be overruled, that judgement needs to made as rule-like as possible. And not any rules will do: they must be consistent with originalism and ideally advance its practice.
Michael Rappaport and I have argued that following precedent is consistent with originalism. But we have also argued that the optimal rules should provide only a limited respect for precedent, if originalism is to be given its proper generative force. Whether we are right or not, one of the key questions for post-Scalia originalists is to consider precedent rules. Only though such a research project are we going to fully connect up two of Justice’s Scalia’s great projects—originalism and a law of rules.