The restrained vision of the federal judiciary that has dominated the jurisprudence of right-leaning American legal theorists and lawyers is under fire.
Ralph A. Rossum
In 1987, a year after Antonin Scalia’s confirmation as an associate justice of the Supreme Court, only 7 percent of the briefs filed before the Supreme Court made an originalist argument. Twenty years later, 35 percent did so. This is no accident.
Scalia joined a Supreme Court whose members were generally results-oriented, embracing some notion of a “Living Constitution”—the belief that the founding charter is essentially an empty vessel into which they could pour whatever new wine they wished. They saw the Constitution as having no permanent or fixed meaning but rather as a living, evolving document that must be interpreted to conform to the times. Justice Scalia utterly rejected that view. He insisted instead that the times must conform to the Constitution, and he pulled the Court (initially single-handedly, later in tandem with Justice Clarence Thomas) in an originalist direction.
He did so by pursuing an “original public meaning” approach to the Constitution. He insisted that it should be construed in a way that is consistent with the original understanding of those who drafted and ratified it. This meant, for him, consulting dictionaries of the Founding era and other documents of that time, to ascertain what the words and phrases of the Constitution meant to the society that adopted them. In my book, Antonin Scalia’s Jurisprudence: Text and Tradition (2006), I included an appendix listing the numerous dictionaries Scalia had cited in his opinions to establish a constitutional provision’s original public meaning—it ran five pages long.
Perhaps the most illustrative example of Scalia’s original public meaning approach to the Constitution is his majority opinion in District of Columbia v. Heller (2008), in which he held, for a five-member majority, that the Second Amendment secures an individual’s right to keep and bear arms for purposes of self-defense. The Second Amendment reads: “A well-regulated militia being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed.” Scalia parsed every word, turning to dictionaries and legal encyclopedias of the late 18th century to ascertain what such words and phrases as “keep,” “bear,” “arms,” “well-regulated militia,” and “free state” meant to the members of the First Congress who adopted the Second Amendment and to the members of the state legislatures who ratified it.
In Heller, his original public meaning approach led him to a conservative conclusion, but in many other cases, especially concerning the Bill of Rights’ criminal procedural provisions, it led him to what many would consider liberal outcomes.
His approach made him a fierce defender of the Fourth Amendment’s protections against unreasonable searches, and a fervent protector of criminal defendants’ right under the Fifth Amendment to confront witnesses against them. It made him the Court’s most stalwart advocate of the Sixth Amendment right to trial by jury when he argued that the right to trial by jury requires every element of a crime for which a criminal defendant can be sentenced to be proved by a jury beyond a reasonable doubt or pled to by the defendant—thus judges could not on their own enhance a sentence based on the pre-sentence findings of the defendant’s probation officer.
Scalia’s original public meaning approach is his most important legacy. He understood its ability to constrain judicial discretion and how it required him to support what the Constitution means, even when it was contrary to his own personal preferences. It’s a legacy that sets a high benchmark for all justices: to serve as principled jurists who objectively follow what the Constitution requires, without fear or favor.
Justice Antonin Scalia will be remembered for many things—masterful prose stylist, influential constitutional theorist, brilliant scholar, engaging wit, legendary raconteur, opera lover, husband, father, friend—but one of his greatest roles was that of fearless culture warrior. Despite his elite education and high-status career, and enormous pressure from the academic and legal establishment to embrace secular and Progressive fashions, Scalia always stood firm in his defense of core cultural values: religious faith, the sanctity of life, opposition to state-sanctioned race discrimination, traditional morality, the right of political majorities to govern themselves, and the constitutionally limited role of judges.
My Law and Liberty colleague John McGinnis nicely summed up the establishment’s biases, and their effect on Supreme Court members over time, when he said: “The press and the professoriate lionize justices for growing on the Court. Justices are human, and continual flattery eats away at the apparently most granite of convictions.” The point being that Scalia, to his great credit, not only did not undergo this transformation (it used to be called “the Greenhouse Effect,” after the New York Times’ former judicial correspondent Linda Greenhouse) but he regularly tweaked the judicial Left, and resolutely opposed activist arguments in his famously withering dissents.
Scalia’s trove of dissenting opinions constitutes a timeless legacy. For example, he shredded the majority opinion in the 1996 case striking down the Virginia Military Institute’s male-only admissions policy on equal protection grounds, noting that:
The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court’s criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter majoritarian preferences of the society’s law trained elite) into our Basic Law.
His colleagues’ judicial activism forced him to return to this theme frequently. In Romer v. Evans (1996), Scalia defended the right of Coloradans to enact a constitutional amendment banning local ordinances that prohibited discrimination on the basis of sexual orientation:
The Court has mistaken a Kulturkampf for a fit of spite. . . . Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that “animosity” toward homosexuality is evil.
Even in 1996, it was clear to Scalia that the Court was tacking away from its 1986 decision in Bowers v. Hardwick, which upheld the criminalization of homosexual sodomy, and he understood well what constitutional protection of homosexuality would ultimately mean: the demise of traditional marriage. Accordingly, in Lawrence v. Texas (2003), in which the Court overruled Bowers v. Hardwick, Scalia vigorously dissented:
Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda. . . . It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. . . . What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change. . . . [I]t is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.
A decade later, when the Court struck down the bipartisan Defense of Marriage Act (signed into law by President Clinton) in United States v. Windsor (2013), the handwriting was on the wall. Scalia wrote in dissent that the “real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by ‘bare . . . desire to harm’ couples in same-sex marriages.” When the Court finally crossed the Rubicon in Obergefell v. Hodges, Scalia responded with undisguised fury, calling the majority opinion “a judicial Putsch.” His dissent, too long to quote here, is worth reading in full.
The opinions Scalia wrote during his nearly 30 years on the Court will be delighting law students and practitioners for ages to come. His dissents in particular are forensic tours de force, tightly reasoned, delivered in a conversational style, with startling clarity, and enlivened with bold phrases, such as “The Imperial Judiciary lives” (Planned Parenthood v. Casey, 1992).
Scalia fought the good fight, not winning every battle, but never relenting. In constitutional jurisprudence, the ultimate judgments are made by history, not transitory majorities on the Court. History will judge Scalia to be a giant. In a legal culture utterly dismissive of prevailing moral standards and judicial humility, he was the courageous voice of the people. R.I.P.
It was the famous Cruzan case of 1990: The Court was being invited to create nothing less than a new “constitutional right to die,” a right that would license vast, new mischiefs in the land and unsettle many parts of our law—all quite beyond the imagining of the people arguing for that advanced, new right.
But it was not beyond the imagining of Justice Scalia. He leaned in with that special knack of drawing out the principled implications of these novel “rights,” when they are seen in their most practical form, coming down to earth. And so he offered an assurance to those people who run ambulances and hospitals, and who are often summoned to the rescue: If you are a hospital or service run by the government; if you are called on to pump out the stomach of someone who has intentionally taken an overdose of barbiturates; you are not likely to be subject to a suit under 42 U.S.C. 1983 for violating the civil rights of this man. What civil right? His new “constitutional right to die” by his own hand.
No one came close to Scalia in this art of drawing out the implications of these moral and legal principles for our lives daily led. He boasted that he had never taken a course in logic, but he became the most relentless logician on that Court. In the Rapanos case (2006), on wetlands, the federal government sought to extend its controls over anything plausibly “wet.” Justice Kennedy argued for an expansive definition, covering any body of water, moving or still, which could affect “navigable waters.” Scalia replied aptly with a question: “But what possible linguistic usage would accept that whatever (alone or in combination) affects waters of the United States is waters of the United States?” To which I remarked, “Nino, a good day’s work: a bit of propositional logic, which works to establish the limits to a federal statute.”
He never quite took my point that this was indeed what the “natural law” was about—not some high-minded “theory” hovering above the earth, but the axioms of reason as they bear on our practical judgments of right and wrong. We would persistently joust with each other over “natural law,” and yet on one issue after another, he was the justice who spoke my mind in the case at hand, whether it was the defense of the child in the womb, the preservation of marriage, a respect for federalism and the separation of powers, or the rejection of racial preferences in assigning benefits and disabilities to people solely on the basis of their race. And so when the Court issued an opinion and he was in dissent, I would begin by reading his dissent first. I would take that as the argument that the opinion for the majority would have to beat.
But it is one of the melancholy facts of life that we may do the same things, act in the same way, reach the same conclusion, with acts springing from radically different premises. In Cruzan, Scalia thought that those emergency medical services would not be subject to suits over civil rights, but only if the “positive laws” of the State barred suicide. He was far from recognizing something in principle that would bar medics from using their powers to hasten the end of human life, regardless of what the local laws allowed. In the same way, he was far from recognizing any principle of natural right that would make it wrongful to destroy the innocent life in the womb regardless of whether the laws of a state licensed and encouraged that kind of killing.
Imagine if a legislature withdrew the protections of life from people on the assumption that the Fourteenth Amendment protected only blacks who were human, and that people were more human as they became lighter in color. Justice Scalia would not have hung back, bewildered. He would not have doubted for a moment that he had the tools in hand already to gauge whether the human standing of any person, and his standing as a bearer of rights, could hinge on the tint of his color. But it would be arbitrary in the same way for a legislature to remove the protections of human life from babies in the womb because of their height or weight or because they don’t happen to be “wanted.” None of those attributes could possibly carry the weight of justifying a homicide. Nor could they justify the shifting of a small human being from the class of those “beings protected by the law.”
My dear friend would readily see how this discipline of reason as a judge gave him the tools to test, in the severest way, the case for withdrawing the protections of law based on race, even though race was never mentioned in the Fourteenth Amendment. Precisely the same mode of reasoning would be engaged in testing the substance of the laws that would withdraw the protections of the law from babies in the womb. My friend understood this reasoning, but he earnestly thought that it was something not available to him in his office as a judge.
That was an enduring question between us. And if things work out well, I’ll be able to resume the conversation with him when I see him again.
Few jurists have had a greater influence upon American constitutional law than Justice Antonin Scalia. He enlivened constitutional provisions that had long lain dormant, strengthened others, and refined and popularized an interpretive method that will exert a gravitational force long after his passing. All of these achievements were made possible by Scalia’s dedication to one value of inestimable worth, well-captured in John Adams’ description of “a government of laws, and not of men”: the rule of law.
The value of the rule of law—understood as a legal system in which limits on government power are set by fixed, publicly known, rational principles—can best be appreciated by considering its fundamental alternative: the rule of men. Under the rule of men, the limits of government power are set by the beliefs and desires of particular power-holders. Their will determines whether people are deprived of their liberty, their property, their livelihoods, even their lives. Simply stated, might makes right. Scalia was determined to maintain the rule of law established by our Constitution, even when the political stakes were high and even in the face of tides of popular will. He confounded his critics by joining opinions with justices with whom he often disagreed in defense of the rights of individuals for whom he may have had little sympathy.
But Scalia’s efforts to maintain the rule of law were distorted by a flawed conception of our law’s fundamental character. Scalia believed that the Constitution was a fundamentally majoritarian document—that, under our government, “The minority loses, except to the extent that the majority. . . has agreed to accord the minority rights.” He ridiculed the idea that the Constitution protects natural rights not listed in its text, despite compelling evidence that numerous constitutional provisions are designed to safeguard preexisting rights “retained by the people.” Scalia’s majoritarian premises led him to endorse the constitutionality of criminal prohibitions on same-sex intimacy and to deny that the Constitution protects parents’ rights to raise their own children. They also led him to decline an opportunity to pursue and enforce the original meaning of constitutional terms that he believed left too much room for judicial discretion. In McDonald v. City of Chicago (2010), he relied upon the doctrine of “substantive due process” in determining that the right to bear arms in self-defense was applicable to the states—despite having criticized substantive due process for decades as nonorginalist “babble”—apparently because of concerns that reinvigorating the Fourteenth Amendment’s Privileges or Immunities Clause would open a Pandora’s Box of unenumerated rights.
Although the rule of law established by our Constitution is indeed a “law of rules,” it is more than that. It is a law of freedom, designed to “secure the blessings of liberty.” Consistent judicial engagement is needed in order to ensure that might never makes right—that government power is never brought to bear on individuals without a reasoned, constitutionally proper justification. If Scalia never truly grasped the character of our law and thus failed to consistently enforce its terms, we are in his debt for his steadfast dedication to the law, as he understood it; the eloquence with which he expounded the Constitution; and the tools that he left us to discover the full measure of freedom it guarantees.
Antonin Scalia was appointed to the Supreme Court the year I started law school. At that time, originalism had almost no presence in law schools or in the legal culture more generally. Our textbooks reproduced opinions that argued over policy, with a few rhetorical gestures toward the Framers. Conservative judicial philosophy (such as it was) came from justices like William Rehnquist and Lewis Powell. The few originalist theorists—scholars like Raoul Berger and Robert Bork—were widely (and unfairly) derided as cranks when they were acknowledged at all. Among my professors, the closest anyone came to originalism was the great John Hart Ely, who thought judicial opinions should have at least some connection to constitutional text and founding values. Even he was thought a bit old-fashioned—labeled an “interpretivist” because he thought something called “interpretation” should be going on (as opposed to the dominant “non-interpretivists,” who dismissed the whole idea). When we discussed substantive due process in my first year constitutional law class, I asked how the modern concept related to anything the framers of the 14th amendment might have had in mind; I was regarded somewhat in the way one regards a child who naively mispronounces a hard word.
Except to insiders like Attorney General Meese, who played a key role in his nomination, I don’t think even Justice Scalia was seen at the time as distinctly originalist, rather than just conservative. But he quickly made his mark. We read Morrison v. Olson (1988) in my third-year administrative law course. His lone dissent showed a new path, setting him apart from the policy-based and deferential conservatism of Rehnquist and Sandra Day O’Connor. The professor could not effectively mock it (though he tried); but he had to discuss it. In 1989, Scalia’s magnificent essays Originalism: The Lesser Evil and The Rule of Law as a Law of Rules changed the whole terms of debate. His Court opinions—especially his uniquely forceful concurrences and dissents— began making their way into casebooks, and into public discourse about law. Students loved them, even if they hated them. He became a public intellectual as well as a justice, making countless speeches to explain his approach to judging. Many people disagreed, of course, but he could not be ignored. Originalism became part of the conversation, gradually at first, but eventually it came to represent a core position in the debate over constitutional law and the role of judges.
And Scalia changed originalism, too, by his focus on text. The Bork/Berger originalism was mostly about what leading Framers thought, or would have thought, about particular issues. Scalia’s originalism—consistent with his equally influential approach to statutes—started with the text. Now everyone says they start with the text. We forget how novel that once was.
Scalia’s originalism did not fully prevail (or, more optimistically, has not yet prevailed). Sometimes it did, at the Court, as in Heller. Sometimes it influenced the Court’s majority, even in opinions that were not fully originalist. Often he was in dissent, but less often was he alone. The originalist position in Noel Canning (2014) got four votes, not one. Lower courts began producing originalist opinions. Lawyers included originalist arguments in their briefs. Law professors and commentators began arguing over it. His achievement—I think an irreversible achievement—was to make people think about originalism. Today no one can teach or study constitutional law without thinking about originalism. We can’t talk about new Supreme Court appointments without talking about originalism. No one can litigate a constitutional case without examining the Constitution’s original meaning. We take that for granted now. It’s important to remember how much that has changed in 30 years, and how much of that is owed to one man.
When I was in law school, I came across a law review article that tried to argue that Justice Scalia’s legal “absolutism” was derived from his rigid Catholic faith. As an example of the casual religious bigotry of the academy, the article was perhaps unremarkable but even then it seemed to me unfair both to Catholicism and to originalism, Scalia’s legal philosophy.
Presumably such expressions would be beyond the pale in our allegedly more tolerant age, but among the elites, what has been called the last acceptable prejudice abides. Indeed, a recent Scalia biography continues the trend, arguing that Scalia’s jurisprudence seeks to secretly import his “pre-Vatican II” theological commitments and to link him with the Catholic lay group Opus Dei.
If there is any such connection it is quite the opposite of what that law review article or biographer may have supposed. For much of American history, Catholicism has been thought too liberal, not too rigid. Protestants believed the Catholic practice of confession allowed for all sorts of wickedness, relieved by the ready recourse to a priest for absolution. And social movements such as the one leading to Prohibition were driven in no small part by revulsion at the rowdy and wild Catholic life of new European immigrant groups such as Scalia’s own Italian Americans.
I will leave it to others more knowledgeable than I to examine the nuances of Scalia’s legal philosophy as against the arguments of his critics. But what a connection between faith and jurisprudence means may be something like the following:
Just because one may fall away from the truth does not mean the truth changes. Rather, there is a way back to full communion. In Catholicism, that might be confession and repentance. For constitutional law, that may be the written words of the Constitution, which provides a stable guidepost for other constitutional and legal actors. And as for those rowdy forms of life—that is democracy, a form of government protected by that Constitution.
The vitriol some have directed at Scalia upon his death seems driven largely by the fact that in one case or another, he did not vote the way they would have voted to get the results they wanted. But that simply turns law into a power game. What it is supposed to be is an institution that allows the people, in their various, rough, and perhaps irrational ways, to govern themselves.
Scalia’s critics seem to me to be the inheritors of a humanitarianism derived from the Puritans, which, in its current secular form, simply cannot abide people who think and believe differently from the way they do. The 19th century Catholic writer Orestes Brownson described this tendency as one rooted in a false quest for total equality. Inequality, for this sort of humanitarian,
can be remedied only by the abolition of all individualities, and the reduction of all individuals to the race, or humanity, or man in general. He can find no limit to his agitation this side of vague generality, which is no reality, but a pure nullity, for he respects no territorial circumscriptions, and must regard creation itself as a blunder.
Although the terms may change, the unconstitutional drive to efface the current social order and replace it with a utopia continues. As Brownson fought against that tendency in the 19th century, so Scalia did in the 20th and 21st. May he rest in peace.