Tuesday, February 16, 2016

Justice Scalia's Orwellian Jurisprudence

Mark Graber

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.


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