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Antonin Scalia, Judicial Activist? In Defense of the Late Justice--and the Rule of Law

The Huffington Post The Huffington Post 22/02/2016 Evan Bernick

During his lifetime, Justice Antonin Scalia was revered by conservatives as a stalwart defender of the rule of law and a determined foe of "judicial activism." As his admirers saw it, Scalia stood against decades of jurisprudence that was unmoored from constitutional text, history, or principle--unmoored, that is, from the law. Scalia offered his originalist methodology as a means of ensuring that we are ruled by law, not by ever-shifting majorities or a handful of men and women in black robes. Those who embraced Scalia's originalism touted originalism's capacity to maintain the rule of law as one of its principal virtues.
But Scalia was also attacked by progressive scholars throughout his jurisprudential career for--of all things--judicial activism. After a brief grace period following his passing, those attacks have resumed. In a recent op-ed, Dean Erwin Chemerinsky points out that Scalia, for all his praise of democracy, for all his criticism of "the Imperial Judiciary," voted against laws enacted by democratic majorities without offering much in the way of deference to those enactments. Cases in point include District of Columbia v. Heller (2008), Citizens United v. F.E.C (2010), and Shelby County v. Holder (2013).
Scalia's defenders might be tempted to respond by explaining that it is not "activism" to invalidate laws that are inconsistent with the original meaning of the Constitution. They might be inclined to point out that Scalia's criticism of the Court's decisions to invalidate democratic enactments in cases like Planned Parenthood v. Casey (1992), Lawrence v. Texas (2003), and Obergefell v. Hodges (2015) rested upon his conviction that the Constitution had nothing to say about abortion, same-sex intimacy, or same-sex marriage, and thus democratic majorities could decide such issues as they chose. But to respond in this way is to fail to grapple with the foundational premise of Chemerinsky's criticism--namely, that the constitutional provisions that matter in hotly contested cases have no fixed, determinable meaning that is independent of anyone's beliefs about them and, thus, Scalia, no less than the "activists" whom he criticized, necessarily voted on the basis of his personal preferences. In Chemerinsky's view--and in the view of a number of Scalia's critics, including Professor Louis Michael Seidman, Professor Eric Segall, and Judge Richard Posner--Scalia was either inexcusably naïve about the indeterminacy of the law or deliberately donning the "cloak of judicial modesty" in order to impose his "conservative ideology."
Defending the notion that the Constitution--all of it--has a fixed, determinable meaning would take more than a brief essay. My ambitions here are modest--to offer a sketch of why judges whose authority is derived from the Constitution cannot perform their duty unless they share Scalia's conviction that "Words have meaning. And that meaning doesn't change."
The rule of law is often praised but rarely defined. The term refers to a legal regime in which limits on government power are set by clearly stated, publicly known, rational principles that are independent of the beliefs and desires of any particular individuals. The fundamental evil that the rule of law is designed to extirpate is arbitrary power--force driven by will rather than reason. Absent the rule of law, might makes right, and trumps individuals' rights--it is just a question of whose might, and whose rights.
The most famous Framing-era defense of judicial review was presented in Federalist 78 by Alexander Hamilton. It remains unparalleled in its concision and persuasive force, and it is centrally concerned with the judiciary's role in maintaining the rule of law established by the Constitution. In Hamilton's view, judicial authority to "void" unconstitutional government enactments is derived from the fact that only enactments that are consistent with the Constitution are laws at all. The government is not the source of its own power--the American people are the source of its power, and they delegate authority to government officials to act as their agents for limited, specified purposes. Any exercise of power beyond the scope of that delegation is ultra vires--beyond the government's legal power and authority. As Hamilton put it, "To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves." It would be to affirm that the will of those representatives is superior to the rational limits on government power set forth in the Constitution. The judiciary maintains the rule of law by "guard[ing] the Constitution" and, thus, "the rights of individuals" that the Constitution is designed to secure. Hamilton also recognized that if judges are to determine whether the government has exceeded the limits "assigned to [its] authority," they must "ascertain the meaning of the Constitution, as well as the meaning of any particular act proceeding from the legislative body." If they do not so, they cannot perform the duty that the Constitution assigns to them.
What Scalia recognized is that Hamilton's defense of judicial review fails if the law is--as Chemerinsky has argued that it is--pervasively indeterminate, and decisions in contested cases are "inherently... a product of [judges'] life experiences and views." If Chemerinsky is correct, judges have two fundamental choices. First, they can, as Hamilton put it, exercise "arbitrary discretion" and impose their will on the rest of us. Second, they can simply allow government actors to act as "the constitutional judges of their own powers." Either way, might makes right.
Scalia's jurisprudential career was dedicated to the proposition that the rule of law is possible and judges are duty-bound to make it a reality. As a Supreme Court Justice who, like all government officials in all three branches of the federal government, took an oath to "support this Constitution," it would be incoherent for him to take any other position. On what basis could Scalia claim the authority to "void" government enactments that are inconsistent with this Constitution if this Constitution (presumably including Article III, from which Scalia derived his authority) has no fixed, determinable meaning?
I havecriticizedScalia for his failure to grasp the fundamental character of our law--for his majoritarian reading of the Constitution, for his inconsistency in enforcing its terms. But his belief that there was a "there there"--that the Constitution has meaning, that that meaning does not change, and that judges are duty-bound to determine and give effect to that meaning--should be praised, not faulted. Those who value the rule of law should insist that anyone nominated to replace him share that belief and hold to it, even in the face of criticism from those who regard law as politics by another means.

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