The Scalias of Justice
When Ronald Reagan appointed Antonin Scalia to the Supreme Court in 1986, Scalia became the first justice to base his jurisprudence on originalism. To him, “the provisions of the Constitution have a fixed meaning, which does not change: they mean today what they meant when they were adopted, nothing more and nothing less.”
Prior to Scalia, Supreme Court justices almost uniformly subscribed to the idea of a living Constitution, believing the Founding Fathers knew circumstances would change over time and intended the Constitution to be a framework for future generations to apply in fresh ways to unforeseeable legal conundrums. “To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument,” Chief Justice John Marshall, the most influential Supreme Court justice in American history, wrote in 1819.
The proudly intellectual Scalia limned out his odd perspective with two-lesser known concepts. The first was judicial restraint, the idea that judges should apply law, not make it. The second was textualism, the idea that judges should interpret a law solely on the plain meaning of its text as understood when it was issued, not on other considerations such as legislative intent, morality, or societal consequence. When combined with originalism, Scalia believed judicial restraint and textualism enabled judges to come as close as possible to an objective interpretation of the law.
Scalia had many smart critics, including Ronald Dworkin, who considered it absurd (my word, not his) to apply the literal meaning of a largely abstract and dated document to modern legal questions, and Richard Posner, who asked, “does an ordinance that says that ‘no person may bring a vehicle into the park’ apply to an ambulance that enters the park to save a person’s life? For Scalia . . . the answer is yes. If the authors of the ordinance wanted to make an exception for ambulances, they should have said so.”
Perhaps the most incisive criticism comes from Harvard Law professor Noah Feldman. He argues that Scalia’s three principles often conflict with each other, and thus force adherents to make decisions based on the very biases the principles are supposed to eliminate. For example, judicial restraint requires a nearly inviolable commitment to precedent, but as Feldman observes in a December 2020 New York Review of Books article (here, but behind a paywall), “strict originalism can dictate radical judicial activism.” Hence Dobbs v. Jackson Women’s Health Organization’s originalistic conclusion that there is no explicit right to abortion in the Constitution leads to the judicial activism of overturning multiple precedents, starting with Roe v. Wade. Forced to choose between originalism and judicial restraint, the anti-abortion justices opted for the Scalian principle more amenable to their personal bias — and then spent 35 pages of the decision rationalizing that preference.
I’m no legal scholar, but from my perspective Scalia’s philosophy is the black-robed version of Biblical literalism. Modern reality, knowledge, and good sense are irrelevant; what our authorities put in writing centuries ago is what we must abide by — to the letter — today. And, as with religious literalism, by some not-so-amazing coincidence legal literalism just happens to favor a reactionary interpretation of the text. If the stricken park user doesn’t get to the hospital in time, oh well, it was the Founders’ will.
All three of Trump’s appointees to the Supreme Court — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — reached that pinnacle by pledging fealty to Scalia’s ideas. And so, years after his death in 2016, Scalia lives on, bigger than ever. And given the relative youth of the three aforementioned justices, he’s likely to continue living on for another generation, perhaps longer.
Which means more opinions like those that came down at the end of June are imminent — and for most modern-day Americans, July 4 will soon become a hollow holiday.