Antonin Scalia received his first political appointment in 1971, shortly before President Richard Nixon’s final two picks for the Supreme Court, Justices Lewis Powell and William Rehnquist, donned their black robes for the first time.
It was an auspicious time for conservatives. Because of Powell, Rehnquist, and two other Nixon appointees to the high Court, public school desegregation began to unravel, thanks to the Supreme Court’s 5–4 decision in Miliken v. Bradley. Poor children were told that they did not have a right to the same educational resources provided to rich children by the Court’s 5–4 decision in San Antonio Independent School District v. Rodriguez. As I write in my book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, before Nixon’s justices joined the Supreme Court, liberals could hope for a day where “poverty is itself unconstitutional.” After Nixon filled nearly half the bench, the Court’s days as an agent for economic justice were largely over.
That, however, was not the full story of Nixon’s justices. In 1973, while future Justice Scalia toiled in obscurity as the chair of an equally obscure administrative agency, the Supreme Court handed down Roe v. Wade. The opinion was written by Justice Harry Blackmun, a Nixon appointee. Two of Nixon’s three other appointees also joined Blackmun’s opinion.
Scalia came of age, in other words, at a time when conservatism triumphed when the Court did nothing — both Miliken and Rodriguez were cases where the Court refused to intervene to correct longstanding injustices — and where conservatism was betrayed when the Court did something. In Roe v. Wade, the Court unquestionably changed America’s legal landscape.
This experience, of growing up viewing the Supreme Court as the enemy of his conservative beliefs, shaped Scalia’s judicial philosophy to its core. At his best, Scalia was among the most passionate — and persuasive — advocates for judicial restraint ever to sit on the Supreme Court. In his book A Matter of Interpretation Scalia writes of the heady drunkenness many law students feel when they discover how easily legal doctrines can be manipulated to produce desired results. “It explains why first-year law school is so exhilarating,” according to Scalia, “because it consists of playing common-law judge, which in turn consists of playing king.” The “great judge,” law students learn,
is the man (or woman) who has the intelligence to discern the best rule of law for the case at hand and then the skill to perform the broken-field running through earlier cases that leaves him free to impose that rule: distinguishing one prior case on the left, straight-arming another one on the right, high-stepping away from another precedent about to tackle him from the rear, until (bravo!) he reaches the goal — good law.
“All of this would be an unqualified good,” Scalia warns, “were it not for a trend in government that has developed in recent centuries, called democracy.”
Whatever we think of cases such as Rodriguez and Roe, liberals ignore Scalia’s warning at our peril. If we truly believe that the right to govern flows from the consent of the governed — if we believe in a nation led by representatives and not by kings — then there must be limits on the one unelected branch of government. And Scalia, to his credit, devoted much of his life to an effort to articulate such limits.
Liberals, moreover, have far more to lose from an activist judiciary than conservatives, at least if history is any guide. As I explain in Injustices, most of the Supreme Court’s history was a dumpster fire for liberalism. The Court dismantled much of Reconstruction, blessed segregation, and upheld internment camps for Japanese Americans. It busted unions, struck down the minimum wage, and became the greatest enemy of the American worker.
The greatest challenge liberals will face, should we recapture a majority on the Supreme Court, will be to mind the boundary between our legitimate grievances against unconstitutional practices such as voter ID laws and partisan gerrymandering, and the temptation to implement a political agenda through litigation that rightfully belongs in the legislature.
Scalia, to his credit, understood that conservatives bear this obligation as well. The late justice is closely associated with “originalism,” the belief that judges are bound by what the particular words used by the Constitution meant when they were adopted. Yet Scalia also understood originalism as a means for constraining judicial discretion. In a famous lecture, Scalia held up originalism as a way to mitigate “the main danger in judicial interpretation of the Constitution . . . that the judges will mistake their own predilections for the law.” Because the original meaning of a document is a fixed star, Scalia posits, originalism prevents judges from substituting their own preferences for the Constitution’s text.
There are many reasons why, in practice, originalism provides less of a constraint on judges than Scalia claimed. The original meaning of a document, especially one as vague as many sections of the Constitution, cannot always be determined. And there are often strong arguments for many competing interpretations. Originalist judges can select from among these meanings to get the result they want, while still maintaining the illusion that they are engaged in a neutral and non-ideological process.
Nevertheless, Scalia deserves praise for offering up a proposal to constrain the judiciary. That is not something that can be said about many other originalists.
Consider Randy Barnett, a Georgetown law professor and arguably the most influential conservative originalist who does not sit on a court. Barnett’s scholarship is the perfection of originalism as activism, offering up a selective quote from James Madison here, a citation to John Locke there, all to lead the reader to the conclusion that Barnett’s own libertarian views are implicit in the Constitution itself. If you want a master class in how an advocate can sort through historic sources to build a narrative that supports their views, go read Barnett’s book Restoring the Lost Constitution: The Presumption of Liberty.
Then put Barnett’s book down and read Yale law professor Jack Balkin’s essay on the Constitution’s Commerce Clause. It will leave you with the exact opposite impression, that the Constitution was designed to give the federal government robust power to solve national problems. And it also does so by relying on historic sources.
As it turns out, originalists are no less susceptible to temptation than any other jurist or legal scholar. And so the tragedy of Antonin Scalia is that he often did not live up to his own high ideals about judges who should be wary of becoming kings. Scalia’s vote to repeal Obamacare, for example, simply cannot be squared with the position the late justice took in his 2005 concurring opinion in Gonzales v. Raich. His second vote to gut the Affordable Care Act, in King v. Burwell, was a direct attack on the theory of statutory interpretation Scalia offered in a 2012 book.
Justice Scalia was a great scholar, but he was also a man. And that means that he heard the siren’s call of motivated reasoning as often as any other human. Especially during the final years of his life, he seemed all too willing to succumb to it.
Nevertheless, Scalia never gave in to the self-serving brand of originalism offered by scholars such as Barnett — a legal philosophy that has grown increasingly dominant on the legal right. Even in his final months, Scalia joined Chief Justice John Roberts’s critique of Lochner v. New York, a 1905 decision that is often held up as the pinnacle of conservative judicial activism.
If Senate Republicans succeed in their apparent plan to hold Scalia’s seat open until a Republican president is elected to fill it, then it is likely that the man or woman nominated to fill that seat will be well to Scalia’s right. The face of legal conservatism today looks a whole lot more like Randy Barnett than it does like Antonin Scalia.
And that is a terrible shame for the United States of America, for Scalia was right about one very important thing. It’s an intoxicating game, to play king, but also a very dangerous one.