Monday, April 02, 2018

The Multiple Uses of Justice Scalia

Guest Blogger

Calvin TerBeek

Shortly after President Clinton’s 1996 re-election, an originalist law professor took to the pages of National Review (NR) to propose that Justice Scalia run for president on the Republican ticket in 2000. “No one else of prominence in America’s public life,” wrote John McGinnis, “makes the case for conservatism better than Scalia.” Scalia was “a matchless expositor of laissez-faire economics, and yet no can doubt that he believes as intensely in social conservatism . . . .” Put differently, Candidate Scalia would be able to uniquely appeal “to social and economic conservatives and make the case for constitutional reform.”

It may be difficult to remember now—especially in the wave of writings following Scalia’s death tightly tying his legacy to originalism and textualism—but as late as December 1996, Scalia, even among conservatives, had yet to emerge as the public face of originalism. In addition to McGinnis’s piece urging Scalia as “the perfect messenger for fundamental rightward political change,” NR writers portrayed the justice as an important conservative voice rather than a champion for originalism. The editors wrote: “as Justice Scalia has been valiantly pointing out in recent dissenting opinions, Supreme Court justices serve primarily as the mirror and mouthpiece of current elite opinion.” At about the same time, law professor David Forte penned an essay for NR painting Scalia in messianic terms:

The prophetic role of Justice Scalia is to speak to the age, as is the role of all prophets. He speaks less to his own—the courts and the legal fraternity—and more to those in other parts of our political system. He casts up a dire warning that not only has the Supreme Court in many ways removed the Constitution from the Framers, it is also removing the democratic process from the people and their representatives. His words are on the edge of the apocalyptic; If the Republic is to stand, the Republic must take heed.

And even when specific Scalia judicial opinions were referenced, NR’s writers praised him for “subjecting [Justice Kennedy’s Romer v. Evans opinion] to appropriate scorn in a withering dissent of the type to which Court watchers have become too accustomed from him. (It’s practically an art form.).” Or, after Lee v. Weisman, NR heaped praise upon the justice for recognizing “the loss of secular prayer on public occasions” as the “loss of a ‘unifying mechanism’ in American life.”

This can be understood as the early- to mid-career “constitutive story” about Scalia—a party-unifying conservative prophet warning that the country was in secular decline as the implicitly counter-majoritarian intellectual elites ignored the “original Constitution” to enact an illegitimate social agenda. This is not to say that Scalia and constitutional interpretation were never linked together, but the focus of the intellectual debate over the Constitution in NR—the bellwether of conservatism—was Robert Bork’s defense of originalism and Harry Jaffa, a Staussian, defending “Declarationism.” In short, Scalia was “useful,” but for different reasons than one might have thought. Thus, despite attempts by originalists and conservative commentators to create a linear, teleological story about the concomitant rise of Scalia and originalism since the mid-1980s, until the late 1990s (A Matter of Interpretation was not published until 1997 and was excerpted in NR), Scalia was better understood, outside the law schools (and perhaps even within), as a political entrepreneur on behalf of conservatism.

In the two years since his death, Scalia’s legacy is being constructed anew by law professors, conservative commentators, conservative judges, former law clerks, even family members. This process of course was long in the making. As Scalia moved his evangelizing for originalism into higher-salience venues—he had long been an entrepreneur for originalism in the 1980s and 1990s in his numerous law school visits—and as constitutional conservatism maintained its majority on the bench via President Bush’s 2000 and 2004 victories (to say nothing of the continued growth of the Federalist Society and Scalia’s Heller opinion), originalism, textualism, and fidelity to the Constitution have emerged as Scalia’s current legacy.

This is not to say this is empirically incorrect. Instead, the point here is that even within his own lifetime Scalia had two different, though overlapping, “useable pasts” for the conservative movement. The goal of this short review essay, then, is to canvas three recent books that take aim at shaping Scalia’s legacy and discern how the ongoing, endogenous process of legacy-construction is starting to take shape.
Why should anyone care?

Quickly consider Law & Liberty’s short Symposium on Scalia published days after his death. There is, among others, a “traditionalist” approach praising Scalia for bringing “original public meaning” to the fore and highlighting that interpretive approach’s ability to “constrain judicial discretion”; a rendering of Scalia as a culture war hero for his dissents in VMI, Romer, and Lawrence; a Straussian reading of Cruzan and natural law (though of course Scalia was a positivist); and a light-touch chastisement by a libertarian judicial engagement originalist for Scalia’s misunderstanding of the Constitution as a “majoritarian document.”

This is not mere cant or hagiography. These are serious arguments that show (some of) the various ways Scalia can be “put to use” by conservatives. And as Jack Balkin noted here shortly after Scalia’s death, there is nothing foreordained about the nature and scope of Scalia’s legacy.  I’m less concerned here, however, with whether Scalia will be considered a “great” justice, but how constitutional conservatives are creating useable pasts and how legal liberals might play a role in the legacy shaping process.

One might start, then, with Scalia’s constitutive story about American constitutional development. In Ed Whelan and Christopher Scalia’s useful collection of Scalia’s speeches (Scalia Speaks), many of which had never been published, the justice returns again and again to a simple but powerful just-so story of the Court and constitutional politics:

“Originalism was constitutional orthodoxy in the United States, in historical terms, until very recent times—the post-World War II era of the Warren Court.” (189). However, the Warren and Burger Courts displaced this putatively agreed-upon standard—“a radical transformation” (228) in Scalia’s retelling. Thus, the prevailing trends—the law schools and the “cognoscenti” repeatedly come under criticism—have led us to a place where “the Constitution means whatever it ought to mean” (197, emphasis in original) leading to a “judicial aristocracy” or “judicial tyranny” (terms he invoked over and over).

Whatever the merits of this retelling as history, it is the same basic story that many constitutional conservatives have been invoking since Brown v. Board of Education (though as that case achieved canonical status, the target later became the school prayer cases, Griswold, Roe, Miranda, and so on). What is more, Scalia’s constitutive story has resonated with “populist originalists” like Rush Limbaugh and Sean Hannity as movement conservatives have come to adopt originalism as their lingua franca.

Scalia’s constitutive story is, however, in some tension with the new originalists who fret far less about judicial restraint, precedent, and stare decisis. Instead, these new originalists focus on ensuring that constitutional interpretation conforms to the original public meaning with less regard for reliance interests. Indeed, many in this latter group—their overarching goal is to relitigate (quite literally) the scope of the administrative state—explicitly call for “judicial engagement” rather judicial restraint.

But Scalia, it is too little remarked, both shaped constitutional conservatism and was in turn shaped by it. Thus, Scalia Speaks also admits of another reading. As originalism developed and the implications of the new originalism became clear, Scalia began to move away from simple judicial restraint as his central operating principle. Unveiled in “the last decade of his life,” Scalia’s latter-day stump speech, “Judges as Mullahs,” opens with an attack on the administrative state—the “headless fourth branch”—and technocratic expertise. Scalia pronounced that “project,” developed by the Progressives, “a grand failure” (261). Moreover, in 2011, at the invitation of the Tea Party Caucus, Scalia argued that “Congress ignored the Constitution” when it “created [in 1972] the Consumer Product Safety Commission” (219). (It strains credulity—Scalia was too clever—to believe that this example was randomly chosen and not directed at the newly-created Consumer Financial Protection Bureau).

Furthermore, despite authoring Auer, Scalia later wrote a concurrence stating he was “increasingly doubtful of its validity.” Indeed, it is by now well-known that he rejected his earlier self-categorization as a “faint-hearted” originalist, thus signaling his sympathy with the judicial engagement project that now dominates academic originalism, the Federalist Society, the Heritage Foundation, and the selection of Article III judges under President Trump. In short, Scalia’s thinking evolved quite in line with the “fun-house mirror” history produced by legal libertarians (some originalist, some not) and Straussians that portray the Progressive Era—not the New Deal or the Warren Court, contra previous constitutive stories—as where the constitutional train went off the tracks.

What becomes clear, therefore, is that because Scalia was (very) actively engaged in evangelizing and developing constitutional conservatism’s constitutive story(ies) he now offers multiple uses to the movement. In the near- to medium-term future, we might expect more emphasis on Scalia’s late-career offerings as in line with the current judicial engagement originalism and textualism project. This can be seen in Judge Brett Kavanugh’s Keynote Address for the Notre Dame Law Review’s Symposium on Scalia (wherein the judge name-checked Justice Gorsuch as one who could very well become the next great conservative justice). Kavanaugh noted that “Justice Scalia would say don’t make up new constitutional rights that are not in the text of the Constitution. But don’t shy away from enforcing constitutional rights that are in the text of the Constitution.” Thus, it is no mistake his tribute to Scalia spends a significant amount of time casting doubt on deference to the administrative state. (It worth remembering that the attacks against Chevron and Auer deference, usefully condensed by Chris Walker, start first with the constitutional argument that they purportedly violate the original, structural Constitution).

While this appears to be the current use of Scalia, should a liberal court emerge in the future, Scalia’s earlier, old originalism story can be revitalized. Scalia could return to his prophetic role as a conservative Cassandra “standing athwart” history—Scalia, almost certainly self-consciously referencing NR and Buckley, used this language to describe his legacy. Thus, because Scalia both influenced the development of constitutional conservatism and was influenced by it in an iterative process, there are multiple uses of Scalia depending on the political and historical context.

There is, however, a sense among some legal liberals that Scalia’s penchant for intemperate remarks, especially those directed at racial minorities and the LGBT community, might taint him such that he is toxic to future generations. More than that, there is the sense that Scalia’s temper, polarizing personality, and his epistemic closure may also pose problems for his legacy.

Bryan Garner’s Nino and Me, marketed as a celebration of the duo’s friendship, is intended to humanize Justice Scalia as “Nino” and perhaps provide some cover against just such critiques. Garner portrays himself as a political liberal who nevertheless was able to find common interpretive ground with Scalia in the process developing a deep friendship.

But if this is the goal of the book, it unwittingly provides fodder to Scalia’s critics. Over the course of many dinners, lunches, and in-chambers writing sessions that Garner re-creates, Scalia often appears in an unflattering light. The justice routinely appears petulant and unable to engage comfortably with criticisms (after hearing Heller critiqued at a small gathering at Garner’s house, Scalia later chastised Garner, “I’m not happy! . . . You just wasted an hour of my life! I don’t appreciate it. You shouldn’t waste my time!). Episodes like this—Scalia’s quick temper and emotional vacillation—pepper the book (another example: “The doctrine is called originalism. That’s what I’m known for. Who is this idiot? And why are you listening to him?”). Beyond that, we see Scalia dismiss climate change as cause for concern, characterize the Atlantic and New Yorker as “a bunch of lefties,” and his odd preoccupation with Supreme Court journalist Tony Mauro. Thus, the book appears to reinforce many legal liberals’ already unfavorable impression of “Nino.”
A more successful addition to the literature is Richard Hasen’s The Justice of Contradictions: Antonin Scalia and the Politics of Disruption. This is the most comprehensive critical evaluation of Scalia’s judicial career we have since his death. Without stepping on the book’s many anecdotes—among others, the Scalia fish story is alone worth the price of the book and it contains the most complete reconstruction of the events surrounding Scalia’s death I’ve yet seen—Hasen is unconvinced that Scalia’s legacy will be one of greatness:

“He likely will not be universally admired as one of the great justices of the Court: instead, the people who agreed with him ideologically will deify him, and those who disagreed with him will continue to vilify him until he fades from current memory. What likely will remain of his legacy in the longer term is his clever and acerbic writing style, his reorientation of courts to focus on the nuances of language in ordinary cases, and the tools he offered for delegitimizing opponents.” (xii)

This is surely plausible. But one must be mindful that the Progressives constructed Oliver Wendell Holmes’ as one of their judicial champions despite his responsibility for placing the final judicial nail in Reconstruction’s coffin and his infamous “three generations of imbeciles are enough” remark. It’s not clear that Scalia’s intemperate remarks about, for example, the “homosexual agenda” or positing that minority students might be better off at “slower track school[s]” will problematize his legacy.

In sum, Scalia’s legacy is in flux and will continue to be over the long term. As I’ve tried to sketch out here, which constitutive story that ultimately shape what we “know” about Scalia and constitutional development is up for grabs. While we can delineate which uses constitutional conservatives are likely to solidify around, legal liberals might follow Hasen rather than surrendering the field to conservatives. More historical work would be worthwhile in exploring how legal liberals might create their own “useable pasts” about Justice Scalia, especially as his papers become available. Whether Scalia is considered a great, influential, or dangerous justice in the future will be constructed over the long duree. That project should not be taken for granted.

Calvin TerBeek is a political science PhD student at the University of Chicago; you can follow him on Twitter here.

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