Originalism sits uneasily with the concept of independent agencies, and textualism raises questions about the basis for some agencies' independence.
In addition to a commitment to enforcing the Constitution as written, the successor to Justice Antonin Scalia should possess two of his virtues. First, he or she must unflinching in pursuit of principle even in the face of the rewards that often come from abandoning it. The highest honors from our legal and academic establishment all go to justices who begin or drift left. Justice Scalia, of course, was impervious to all such temptations.
But a justice also faces a temptation to decide law in favor of the policy preferences of the team who nominated him. Law, however, has no team, and Justice Scalia knew it. He wrote opinions in cases from flag burning to detention of enemy combatants that conflicted with the sentiments of many of his fellow conservatives.
And it was clear from the time of his appointment that on the Court Scalia would be a member of only one party—the party of law. In the academy, he showed his independence by dissenting on issues of central importance to his colleagues, like affirmative action. At the Office of Legal Counsel in the Ford Admnistration, however, he even made allies unhappy by keeping the executive branch within the metes and bounds of the law.
Second, Scalia’s successor must be capable of pressing the intellectual case for following the Constitution as written. Originalism is gaining ground because of its intellectual power and a justice can deepen its attractiveness through his or her writings. Again Justice Scalia was an intellectual force in originalist circles even before being appointed as a Justice, as when he suggested replacing original intent originalism, which has serious problems of coherence, with original meaning originalism. And he was continuing to make the intellectual case for originalism until he died, defending, for instance, the use of legal canons as a method of fixing the meaning of a text.
It is impossible here to canvass the entire list of the twenty-one individuals from which President-elect Donald Trump has promised to nominate Scalia’s successor to determine which have the best of these qualities of the late Justice. But two are exemplars—each of one of the virtues.
For demonstrated commitment to principle in adverse conditions it is hard to beat William Pryor, a federal judge on the Eleventh Circuit. As Attorney General of Alabama he went against much, if not most, of the opinion of his state in removing Chief Justice Roy Moore from office. Chief Justice Moore had defied a federal court order to remove a monument of the Ten Commandments from the state Supreme Court. Attorney General Pryor didn’t necessarily even agree with the legal reasoning behind the court order, but he held fast to the correct view that they are to be enforced unless overturned on appeal.
For deepening the practice of originalism, it is hard to beat Thomas Lee, a judge on the Utah Supreme Court and a former law professor at Brigham Young University. He has pioneered the application of corpus linguistics to law. Corpus linguistics provides a comprehensive data set of the uses of words and phrases at a particular time. Thus, it can help pinpoint the meaning of terms much better than dictionaries. As Michael Rappaport has noted, the promise of corpus linguistics for originalism “is to use very powerful software to examine actual usage of words from texts at the time of the Constitution.“ More generally, Judge Lee would create a transmission belt from the best work of originalists in the academy to the Supreme Court. Similar transmissions greatly improved antitrust law. They could do the same for constitutional law.
But I am not endorsing particular candidates. Instead my purpose is to highlight the salient qualities for which the Trump administration should be searching in its first nominee to the Court.