A lot of headlines can be found in Jennifer Senior’s remarkable interview with Justice Antonin Scalia — the fact that Scalia almost exclusively reads conservative media, his belief in the Devil, his squeamishness about the fact that Hollywood depicts “ladies” saying the “F-word.” The interview paints Scalia as an anachronism even among anachronisms. He’s Archie Bunker in a less comfy chair.
Indeed, the justice provides so much candy for headline writers eager to drive up their website’s traffic, that it is easy to miss what is probably the most significant part of the interview — he repudiates his own moderation from a quarter a century ago.
Two years after joining the Supreme Court, Scalia delivered a lecture entitled “Originalism: The Lesser Evil” where he laid out much of his philosophy of how judges should decide cases. Words have meaning, Scalia correctly asserted, and the words of the Constitution must be read as they would have been understood at the time they were enacted. This way, Scalia assured, unelected judges will not overstep their proper role in a democracy. Even if the Constitution were intended to allow the law to evolve with society’s values, Scalia saw “no basis for believing that supervision of the evolution would have been committed to the courts.” Scalia’s textualism, and his belief that a text’s meaning is fixed in time, were both grounded in notions of judicial restraint. If judges can change the meaning of the Constitution, their power is truly limitless.
Scalia’s own relationship with this judicial philosophy, however, is quite fraught. As Yale’s Jack Balkin and others have demonstrated, for example, there’s little support in the Constitution’s text or its original history for the idea that the federal government cannot regulate nationwide economic markets. And there’s strong originalist evidence supporting the constitutionality of the Affordable Care Act. Yet Scalia rejected this evidence to join an angry dissent labeling Obamacare unconstitutional.
Moreover, as Scalia conceded in his 1988 lecture, it is not always easy to determine what the framing generation though a particular constitutional provision meant. And even when it is possible to read the minds of the founding generation, such cross-generational telepathy often reveals that the framers didn’t know the answer either. James Madison and Alexander Hamilton were very much at odds over the scope of federal power under the Constitution, even though they both men were present while the document was being drafted. Justice Scalia’s pro-gun opinion in District of Columbia v. Heller relies heavily on constitutional history to expand the scope of the Second Amendment, but so does Justice Stevens’ dissent. It’s easy to read Scalia’s Heller opinion (and, to be fair, Stevens dissent) and conclude that its author started with the result he wanted, and then trolled through uncertain historical sources in order to find the ones that supported his view.
So, while the younger Scalia presented reliance on the Constitution’s original history as a cure to judges imposing their views on the American people, that’s not how Scalia’s originalism has actually worked in practice. In practice, he’s been more than capable of selecting the history he likes best — and even ignoring constitutional history that goes against his preferred result.
Yet, while Scalia’s desire to shape the law often exceed his principles, his “Lesser Evil” lecture did offer one sop to liberals afraid that he would comb through early American history, uncover abhorrent practices and then stamp the Court’s blessing upon them. Labeling himself a “faint-hearted originalist,” Scalia confesses that “I cannot imagine myself, any more than any other federal judge, upholding a statute that imposes the punishment of flogging.” There are some injustices that the younger Scalia would intervene to prevent, even if those injustices existed at the framing.
This is the part of the “Lesser Evil” lecture that Scalia abandons in his interview with Ms. Senior. When asked “how fainthearted” he truly is, Scalia responds “I described myself as that a long time ago. I repudiate that.” And lest there be any doubt, that means he would permit flogging — “what I would say now is, yes, if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional.”
This repudiation is not entirely surprising — while Scalia has not upheld flogging, he did join a dissent siding with three prison guards who handcuffed a prisoner to a hitching post in the hot sun and denied him water. Nevertheless, his explicit willingness to sanction injustices he would have halted as a younger man provides reveals a great deal about his approach to the law in his later years.
When the lawsuits challenging the Affordable Care Act had just been filed, many legal observers mocked them as unlikely to prevail because Scalia authored an opinion in 2005 that left little doubt that the law was constitutional. If even Scalia’s opinions supported a progressive law, how could any judge — or at least, any judge acting in good faith — deem the law unconstitutional? Scalia’s repudiation of his 1988 statement may reveal why so many attorneys were wrong to look to his past opinions and expect them to guide him in the future. In the winter of his years on the Court, Scalia looks back upon his past moderation and regrets it. It follows that his own more moderate opinions are no longer reliable predictors of Scalia’s current views.
This lurch to the right should scare liberals even more than Scalia already does. And it is not yet clear if anything remains of Scalia’s prior claims to judicial restraint. Indeed, during oral arguments on the Voting Rights Act case, Scalia not only labeled the landmark law a “perpetuation of racial entitlement,” he claimed for himself a sweeping power to correct what he viewed as a failure of the democratic process. The Scalia who once spoke eloquently about the limited role of a judge in a democracy is dead, replaced by a more activist Scalia who is far more willing to question the will of the people than his younger self.