Scalia's "originalism promised to hold the Constitution above politics, but his judicial opinions reinforced the impression that his judging was only politics by other means. The country is now entering a mess that bears his mark."

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Scalia’s Contradictory Originalism
By Jedediah Purdy, February 16, 2016

The late Justice Antonin Scalia was, deeply and volubly, a man of the right. If he had had his way, same-sex marriage would still be illegal in much of the country, key provisions of the Affordable Care Act would be discarded as unconstitutional, women would have no right to procure an abortion, and affirmative action would be effectively illegal. Nonetheless, mourners and admirers from across the political spectrum have praised not only his personal warmth and charm but also his influence on the law. They say that his intellectual gifts, his dedication to an originalist theory of constitutional interpretation, and his insistence that the Supreme Court should be apart from and above politics did much to redefine both the Constitution and the Court.

His admirers are right that he was brilliant and that he cultivated a bold vision of the Constitution, but these qualities are precisely the source of the damage he leaves behind him. Scalia’s originalist theory elevated an impossible ideal—that judging should be a politically neutral act—even as, in recent decades, it provided a cover for opinions that were evidently partisan. The fight now beginning over his replacement crystallizes both of these realities: there is official cant about the neutrality of the Court, and there is partisanship in the trenches.

Anyone involved in constitutional law must confront the fact that the Supreme Court is no ordinary bench but the third branch of government, and the least democratic one. When the Court declares a law or other government action unconstitutional, it is substituting the judgment of nine élite lawyers for that of Congress and other elected officials. The problem is not academic. Scalia himself furnished a critical fifth vote in two cases that have had a marked effect on this year’s election: Citizens United v. Federal Elections Commission, which allowed unlimited campaign spending by individuals and unions, and Shelby County v. Holder, which ended the Department of Justice’s supervision of Southern voting laws under the Voting Rights Act and inspired a wave of new laws restricting ballot access.

Supreme Court Justices use judicial craft and precedent to distinguish their reasoning from mere attitude, but in the end, in hard cases, their reasoning does not escape their basic values. A long line of pragmatically minded Justices, from the Franklin Roosevelt appointee Robert Jackson to the Clinton appointee Stephen Breyer, have admitted as much, musing openly about the Court’s necessary entanglement with messy democracy. Scalia’s originalism—the theory that judges should hold the Constitution to the “public meaning” it had when it was adopted—was the most ambitious and influential judicial attempt to limit the impact of individual standards. It anchored judges’ reasoning to a narrow range of interpretive sources, restricting the scope of their anti-democratic interventions.

Scalia’s dissents pounded home that the Supreme Court had no business deciding that the Constitution protected abortion or same-sex intimacy. “The Court has taken sides in the culture war,” he warned, denouncing a decision protecting adult intimacy from criminalization. In his view, the Court was “departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.” He said the same about the constitutional status of women’s equality, which he classed among “the smug assurances” of our time. “This most illiberal Court,” he wrote in dissent from a 1996 decision that opened the Virginia Military Institute to female cadets, “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.”

These dissents, delivered with authority and panache, made originalism seem distinct and forceful. But Scalia’s later career showed that as originalism gained in influence, it became susceptible to many uses, not all of them conservative. In District of Columbia v. Heller, in 2008, Scalia and John Paul Stevens led the Court’s factions in a 5-4 split over the Second Amendment. Both Justices wrote elaborate historical interpretations of the original meaning of “the right of the people to keep and bear arms.” Scalia’s historical monograph attracted five conservative votes, Stevens’s four liberal ones. An observer could fairly wonder what had happened to the vaunted constraints of history.

Three years later, the Yale law professor Jack M. Balkin published “Living Originalism,” a book bristling with persuasive arguments that originalism is only a compass, not a highway, and could lead different interpreters to many different conclusions—including support for abortion and gay rights. The key is that the original meaning of a broad principle such as the Fourteenth Amendment’s guarantee of “equal protection of the laws” includes the expectation that its meaning will evolve with later developments. Balkin’s originalism embraces the reality that anyone asking “What does equality mean?” will give an answer influenced by the values and conflicts of her time. That, he argues, is a strength, not a weakness, for a branch of government interpreting a constitution that was intended to last for a long time, even as the world changed.

Constitutional law is always controversial because judges encounter gaps in giving meaning to terms like “liberty,” “equality,” or “arms.” They must fill those gaps by deciding whether constitutional guarantees of liberty and equality offer same-sex couples the right to marry, as the Court did last year, in a ruling that seemed simple decency to many observers, outraged others, and would never have occurred to the people who ratified the Fourteenth Amendment. It is up to the Justices to discern whether the Second Amendment’s provision for armed state militias implied a frontier right to armed self-defense—and whether that right should survive the long-ago abolition of the militias to override municipal handgun laws today. Scalia’s severe originalism was a way of denying the interpretive gaps involved in deciding these questions.

There is another way to understand the role of a top court in a constitutional democracy. The Court that decided Brown v. Board of Education, more than sixty years ago—which included three former senators and two former attorneys general—did not have the option of persuading itself that it stood neatly apart from politics. Under the leadership of the former California governor Earl Warren, who joined the Court as Chief Justice while deliberations were underway, they groped their way to a unanimous decision that reflected two premises of the pragmatic yet principled jurisprudence of their time. First, in a democracy, the Constitution directed the Court to insure equal rights for minority groups who might persistently lose out in the political process, with African-Americans being the paradigm case. Second, the Court must find the meaning of the Constitution’s capacious phrases in the life the country has led since adopting them—living originalism, you might say, bringing together Scalia’s originalist theory with the “living constitution” he despised.

Neither of these ideas would have been definite enough for Justice Scalia, who never gave a persuasive account of how his originalism could support the Brown decision. But they point to questions that have been too easy to ignore in the days since his death. Much of his jurisprudence protected the powerful, such as corporations with money to spend on elections, and white plaintiffs against affirmative action. And when he gave the Constitution a meaning taken from recent politics, such as the echoes between his Second Amendment jurisprudence and the National Rifle Association’s propaganda, his method concealed it. His originalism promised to hold the Constitution above politics, but his judicial opinions reinforced the impression that his judging was only politics by other means. The country is now entering a mess that bears his mark.

The current confirmation crisis is taking shape as if the two sides of Justice Scalia’s persona had split to do combat. On one hand, both Republicans and Democrats intone that only their solution—blocking an appointment or confirming one—will keep the Court above politics, as Scalia said it must be, and where John Roberts insists it tenuously remains. On the other hand, the situation is reported and analyzed as pure politics, exactly like any other campaign decision. Because everyone understands the second reality, the first becomes a kind of official cant. That cant is, to an extent, the residue of Justice Scalia’s theoretical ambition to separate judging from politics, while the partisan scrum carries forward his real-life affirmations of judging as politics.
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