Justice Kavanaugh would make the greatest difference in relatively non-political cases about executive power.
With the passing of Justice Scalia, various critics of the justice have made a sport of trying to point out areas where the justice might not have lived up to his own originalist principles. I certainly think it is important for all justices, especially originalist justices, to follow originalist principles. But I don’t approve of the attempt to use originalist principles as a club to attack originalists who sometimes did not live up to those principles.
It is hard to be a justice. One does not have the luxury, like a law professor, of simply writing about the issues one feels comfortable discussing. The issues come up with the cases (even given certiorari at the Supreme Court) and the justices must decide them. Given the pressures and forces of judicial politics, especially in an age where nonoriginalism has been the dominant view for generations, it is hard to expect an originalist justice to be entirely consistent.
In determining how bad it was that a justice did not follow a principle, one must consider a variety of factors, including how difficult it would be to follow the principle (in terms of matters such as consequences and reputation). That nonoriginalist justices follow their own political views – which can be adjusted to their own values, to current politics, or to most other things – is not an especially difficult thing. Thus, comparing an originalist justice who follows originalism only 75% of the time with a nonoriginalist who follows nonoriginalism 95% or 100% of the time is misguided. It is much harder to be the originalist.
It was all the harder to be an originalist in the early years when Scalia wrote. He had to both develop the principles as well as apply them in a world that had largely done neither.
Some have criticized Justice Scalia for a variety of decisions that they say cannot be justified under originalism. I have written several articles attempting to justify under originalism various positions which (as it turns out) Justice Scalia adopted, including a prohibition on state affirmative action, a requirement of paying compensation for certain regulatory takings, and protection of various state immunities, such as sovereign immunity and commandeering immunity.
In other areas, however, I believe that there is little that can be said for Justice Scalia’s position. In my next post, I will discuss one of these areas – Justice Scalia’s position concerning the federal government’s immigration power. Interestingly, the critics have said very little about this area.