Antonin Scalia was the most
Orwellian jurist in American history. He
was one of the most important members of the Supreme Court in American history,
but not for any reason he identified. Scalia
claimed to champion judicial restraint, originalism and the separation of law
and politics. In fact, he was a judicial
activist who struck down laws based on a contemporary constitutional vision
that he campaigned for aggressively in both legal and political settings.
Scalia's professed adherence to
judicial restraint masked a remarkably broad judicial activism. As Thomas Keck documents in THE MOST ACTIVISTSUPREME COURT IN HISTORY (see also Eric Segall’s fine piece in the Wake Forest Law Review), Scalia was among the least restrained justices who ever sat
on the federal bench. He voted to
declare unconstitutional land-use regulations, environmental regulations,
campaign finance regulations, restrictions on speech outside abortion clinics,
hate speech regulations, laws limiting state funding to religious
organizations, affirmative action policies, majority-minority districts,
crucial provisions of the Voting Rights Act of 1965, crucial provisions of the Affordable Care Act of 2010
and many other federal and state enactments.
Scalia insisted that the federal government could rarely permit citizens
to sue states in federal or state courts or require state officials to
implement federal laws. Bush v. Gore probably belongs in a class
of its own as an instance of judicial activism.
Scalia’s last major opinion on the Supreme Court urged the justices to
declare unconstitutional local bans on semi-automatic weapons.
Scalia insisted that he was
guided by the original meaning of the Constitution, but his activist opinions often
made no reference to practice in 1789 or 1868 or did so in ways that would
cheer the heart of a living constitutionalist.
He posed as Raoul Berger, but was far closer in spirit to Jack Balkin. Scalia’s
denunciations of affirmative action never engaged with the substantial
scholarly literature maintaining that the Republicans who framed the post-Civil
War Amendments frequently enacted race-conscious programs. His aggressive attacks on regulatory takings
never engaged with the scholarly debate over whether the conception of
regulatory takings even existed in 1789.
His support for corporate contributions in political campaigns refused
to tackle antebellum legal decisions holding that states were free to restrict
corporate charters in any way the people thought best for the public
interest. He never sought to refute Saul Cornell's influential claim that the right to bear arms in 1791 was the right to be part of a state militia. As did most justices, Scalia appealed
to broad general principles (free speech, formal equality) when they supported
his pet causes, and appealed to particular historical practices when general
principles standing alone might lead in a disfavored direction.
Scalia demanded from others a
separation of law and politics that was missing in his practice. As Mark Tushnet observes, Scalia often wrote
for the evening news or the blogs rather than for legal analysts. His opinions consistently included insults that
mobilized conservative activists without advancing by an iota any legal
argument. Scalia spent most of his time
off the court campaigning for his constitutional vision in any forum that would
offer him a podium.
Scalia was hardly unique in
his activism and devotion to the political movements of his time. Think William Douglas and William Brennan during
the late twentieth century or David Brewer at the turn of the twentieth century. Each was a judicial activist who identified
with a political movement of that time and articulated that political
movement’s constitutional vision. What set
Scalia apart was his Orwellian insistence that he was the
anti-Brennan/Douglas/Brewer, a justice who respected legislatures and whose
jurisprudence was connected only to the political movements of the late
eighteenth century that produced the Constitution of the United States. If he fooled some of the people some of the
time early in his career, by the end he demonstrated the adage that you can’t
fool all of the people all of the time.
Just as the historical reputation of David Brewer and William Brennan
are tied to the political movements whose constitutional vision they articulated,
so will the historical reputation of Antonin Scalia depend on the fate of the
Tea Party in American constitutional politics.
By all accounts, Scalia was
an honorable public servant who was gracious in private life and committed to
advancing the common good as he saw it in public life. He had an exceptional capacity for friendship
across ideological divides and there was never a hint of scandal in his
behavior. A great many public officials
might emulate those behaviors.
Nevertheless, Scalia did more to cheapen than enrich public discourse. His judicial rants, even if they were of
little concern to his colleagues, further polarized a too polarized
polity. His false professions of
judicial modesty converted appropriate debates over how the court should be
activist into an historically silly debate over whether the court should be
activist. His false professions of
neutrality converted appropriate debates over which contemporary constitutional
vision ought to be the official law of the land into an absurd debate over
whether any contemporary constitutional vision ought to be the official law of
the land. His false professions about
the separation of law and politics obscured the myriad ways in which constitutional
law does and should bleed into constitutional politics.