Tag Archives: Scalia

Now Let’s Talk About “Originalism”

Yesterday, I considered the political food fight being waged over the nomination of a Justice to replace Scalia. Today, I want to consider Scalia’s much-ballyhoo’d judicial philosophy.

During his long tenure on the Court, there has been a great deal of attention paid to Scalia’s claim that he was a true–if “faint-hearted” (his description)– constitutional “originalist.” It is a claim uncritically accepted by political conservatives, but one that has been thoroughly debunked by both conservative and liberal legal scholars.

In 2012, the widely admired, brilliant, and very conservative Judge Richard Posner— the most cited legal scholar of this generation— deconstructed Scalia’s purported originalism in the New Republic. Posner’s review of a book about judicial philosophy co-authored by Scalia was an “emperor has no clothes” moment, and I urge anyone who values careful analysis to click through and read the whole thing. But I especially want to call attention to the following paragraph:

Scalia and Garner call Blackstone “a thoroughgoing originalist.” They say that “Blackstone made it very clear that original meaning governed.” Yet they quote in support the famous statement in his Commentaries on the Laws of England that “the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law”…. Blackstone adds that “the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it.”

That last sentence, explaining that the true meaning of a law is to be determined by “considering the reason and spirit of it” is crucial. It is the root of the only practical approach to original intent. It requires judges to analyze the Constitution and the Bill of Rights in order to understand the values the Founders were attempting to protect, and to apply the law in a way that is faithful to those values–and to do so in situations that are highly unlikely to have been within the contemplation of those who drafted the Constitution.

The question, as I tell my students, is not: what did James Madison think about porn on the internet? Obviously, none of the Founders ever contemplated the internet. But they did contemplate–and quite clearly disapproved of–government efforts to censor expression.

The proper question, then, is: how do we apply the Founders’ judgment about the importance–the inestimable value— of free expression to “facts on the ground” they could never have imagined?

That process–discerning the principles that animated the Bill of Rights and applying those principles in new and unanticipated situations in order to protect the liberties the Founders  wanted to safeguard—is what is meant by a “living” Constitution.

Antonin Scalia was a brilliant man who used his brilliance to dissemble, to pretend (probably even to himself) that he was following a principled methodology that just happened to produce results consistent with his own political preferences and religious beliefs.

Posner is equally brilliant, and equally conservative–but far more intellectually honest.


An Elastic View of Constitutional Responsibility

Okay–This week, it seems appropriate to talk about the late Justice Scalia, the battle over his replacement, and his much touted (albeit misunderstood and selectively applied) “originalism.”

Today, let’s consider where we are in the process for replacing Scalia.

Republicans in the Senate–notably McConnell and Grassley, who heads up the Judiciary Committee–have said they will refuse to participate in the Constitutionally-described process of “advice and consent.” Their argument, apparently, is that because this is an election year, and the President is in the last year of his tenure, he shouldn’t nominate a successor.

Between 1796 and 1988, at least 14 Justices have been confirmed during election years.

According to legal historians, Senate Republicans would have to reach back to the mid-1800s to find an instance in which the Senate blocked a nominee for reasons having nothing to do with the individual who’d been nominated—that is, just to obstruct the sitting President.

As a post from the Brookings Institution put it: the Republicans’ behavior is a repudiation of both the Constitutional separation of powers and the Constitution’s definition of a Presidential term.

And I thought they claimed to be “strict constructionists”!

The bottom line is that there is simply no precedent for the Senate refusing to discharge its constitutional duty to advise and consent, and if I had to guess, I would predict that McConnell et al will back away from that refusal once they recognize the extent of the political risk involved. (Of course, I’ve been wrong before when I have predicted rational behaviors from crazed partisans…)

Tomorrow, a decidedly critical consideration of Scalia’s controversial jurisprudential legacy…..



Wow..Talk About Your Double Standards!

The Supreme Court recently announced it will hear pending same-sex marriage cases, prompting the increasingly unhinged American Family Association to issue a press release titled “Kagan and Ginsburg: Recuse Yourselves!”

Both of these justices’ personal and private actions that actively endorse gay marriage clearly indicate how they would vote on same-sex marriage cases before the Supreme Court,” said AFA President Tim Wildmon. “Congress has directed that federal judicial officers must disqualify themselves from hearing cases in specified circumstances. Both Kagan and Ginsburg have not only been partial to same-sex marriage but they have also proven themselves to be activists in favor of it. In order to ensure the Court’s integrity and impartiality, both should recuse themselves from same-sex marriage cases. Congress has an obligation to Americans to see that members of the Supreme Court are held to the highest standards of integrity. The law demands it, and the people deserve it.

Because Scalia and Thomas haven’t given us any hints about their approach to the subject..cough, cough. (One of Scalia’s sons directs an Ex-gay “reparative therapy” group, and has declared that homosexuality doesn’t really exist.)

A few observations: first, judges (including Scalia) are entitled to have personal opinions. What we have a right to expect is that they will render decisions based upon precedent and sound constitutional analysis, rather than twisting their legal analyses to fit their policy preferences. (Hint: Ginsburg and Kagan are not the Justices most often accused of that behavior.)

Second–where were these defenders of “high standards of integrity” when their fellow-travelers Scalia and Thomas had frequent, obvious and quite real conflicts of interest?

Both Scalia and Thomas accepted speaking engagements (including cushy travel and accommodations) before ideological groups funded by the Koch brothers, although there were cases pending before the Court in which the Kochs were deeply interested.

Scalia went hunting with then Vice-President Cheney at the same time that Cheney was party to a case before the Court (another one of his sons technically worked for Cheney at the same time, as top lawyer in the Bush Administration’s Labor Department); Thomas has refused to recuse himself in cases where the outcome was very important to the (ideological) organization employing his wife. If a lower court judge refused to recuse under such circumstances, that judge would be sanctioned under the rules cited by the AFA.

I have news for the AFA: being a nice human being while serving on the Supreme Court (the conduct of which Kagan and Ginsberg are guilty) is not how we define a conflict of interest. Even being an narcissistic asshole (Scalia) or a petulant advocate of long-discarded constitutional theories  (Thomas) while serving on the Court is not a conflict.

Refusing to recuse yourself from cases in which you or your spouse have a direct financial interest, or from cases to which your hunting buddy is a party, is.

Is Justice Scalia Senile?

The legal community has been buzzing since Justice Scalia issued one of his dissents last Tuesday.

Justice Antonin Scalia’s factual error has been called “unprecedented” by legal experts. As Talking Points Memo noted,

It’s common for the Supreme Court to make typographical corrections and insubstantial edits to a decision after its release. But it’s exceedingly rare to see a factual error that helps form the basis for an opinion. Legal experts say Scalia’s mistake appears to be wholly unprecedented in that it involves a justice flatly misstating core facts from one of his own prior opinions…

Scalia was dissenting from a 6-2 decision upholding the Environmental Protection Agency’s authority to regulate cross-state coal pollution. To help back up his judgment, he cited a 9-0 opinion he wrote in 2001 called Whitman v. American Trucking Association. But the EPA’s stance in that case was the exact opposite of what Scalia said it was in Tuesday’s opinion.

Scalia has been a polarizing figure in the legal community, often criticized for using his obvious brilliance to twist precedent and law in order to get his preferred result. Critics note that his professed “originalism” is employed very selectively in service of his ideological preferences. Tuesday’s error, however, is of an entirely different order.

And that raises some eyebrows–and questions.

Where were his law clerks? Didn’t they alert him to the error? How could he misstate facts from a decision that he himself had written —and not just misstate some peripheral matters, but totally mischaracterize the parties basic positions?

Scalia has become more irascible in recent years; more contemptuous of longstanding Court rules and dismissive of the ethical guidelines that apply to others in the judiciary. This latest behavior raises a troubling question: is the Justice getting senile? And if so, what–if anything–can we do about it?

When the Court was first established, lifespans were shorter.  The average tenure of a Supreme Court Justice through 1970 was 14.9 years. Among those who’ve retired since 1970, it has jumped to 26.1 years.

Maybe we should consider a 20 year term for Justices. Long enough to shield them from political pressure, but not long enough to risk having them serve well into their dotage.

Who’s An Originalist?

I see where Justice Scalia has been claiming to be the Court’s one true originalist again.

“Originalism” is one of those words that gets thrown around a lot–mostly by people who (unlike Scalia) don’t understand how law works, or how “original intent” actually operates to guide today’s judges.

When I ask students who profess to be originalists to define the term, the answers generally   come down to a desire for constitutional fidelity–an admirable desire and one that I certainly share.  The devil, as usual, is in the details. What, exactly, do we mean by fidelity to the Founder’s original intent?

If originalism meant–as some insist–that courts must read the constitutional text through the eyes of the Founders as those gentlemen saw their world in 1786, the Constitution would have outlived its usefulness many years ago. Such assertions betray a lack of understanding about what constitutions are, and how they function.

Constitutions aren’t statutes prescribing or proscribing specific actions; they are broad frameworks of values, statements of important principles to which statutes, ordinances and government actions must conform.

I sometimes ask my students what James Madison thought about porn on the internet. Those who actually know who James Madison was (a subject I have dealt with elsewhere) will laugh; obviously, whatever Madison may or may not have thought about pornography, he didn’t anticipate the invention of broadcast media, let alone the internet. But Madison (and Jefferson and Hamilton and all the rest) did think about the importance of free expression, about the individual’s right to access information and exchange ideas without fear of government censorship.

Madison and the other Founders intended to privilege and protect the principle of free speech. Fidelity to that original intent requires contemporary judges to protect free expression in situations the Founders could never have imagined. That’s what is meant by legal scholars who talk about the “living constitution”–fidelity to the values protected by our Constitution and Bill of Rights and their consistent application to new “facts on the ground.”

We can agree or disagree about whether a given decision is faithful to the principle or value that the Founders were trying to protect, but we need to recognize that social change necessarily requires the application of the Constitution and Bill of Rights to a constantly evolving civic landscape.

When someone like Justice Scalia pontificates that judges have “the power to say what the law is, not the power to change it,” he is selling snake-oil. Every decision that applies settled legal principles to a new set of facts “changes” law, if only incrementally. That is how the common-law system works, and Scalia is smart enough to know that–and smart enough to know that most Americans don’t. His “originalism” allows him to pretend that his favored ideology is really principle; that he is only a sort of legal automaton looking at the world through the Founders’ eyes.

Over at Dispatches from the Culture Wars, Ed Brayton recently said it best:

“Scalia is neither a faint-hearted or stout-hearted originalist. He is a convenient originalist. He’s an originalist when it leads to the result he wants and he’s not an originalist when it doesn’t. His ruling in Raich is a perfect example. And he’s perfectly happy contradicting himself to reach the result he prefers. Just compare his ruling in Raich to his ruling in the challenge to the Affordable Care Act last year. In Raich he agreed that the interstate commerce clause gave Congress the power to regulate the growth of marijuana for personal use — an action that is neither interstate nor commerce — despite that being legal under state law. In the ACA case he argued that the interstate commerce clause did not give Congress the power to regulate the health insurance market, which is, by any definition, a matter of interstate commerce. Ironically, Scalia is exactly what he has for decades accused liberals of being, a results-oriented judge.”

Indeed. And intellectually dishonest about it, to boot.