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Justice Scalia's Greatest Failure

The Huffington Post The Huffington Post 4/03/2016 Geoffrey R. Stone
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In the 1960s, political conservatives accused the justices of the Warren Court of imposing their own liberal values and preferences on the nation in the guise of constitutional interpretation. They charged that the justices of that era consistently exploited the ambiguity of vague constitutional provisions guaranteeing, for example, "the freedom of speech," "the equal protection of the laws," "the free exercise of religion," and "due process of law," to inflict upon the nation liberal policies that were not, in fact, warranted by a more even-handed approach to constitutional interpretation.
The challenge for these conservatives was to figure out a way to constrain the temptation justices might have to construe ambiguous constitutional provisions in a way that comports with their own sense of what makes for a good society. The initial solution suggested by conservatives was a firm commitment to the principle of judicial restraint. Thus, in Richard Nixon's day, a "conservative" justice was a justice committed to the notion that a justice should automatically uphold the constitutionality of government action whenever there was any reasonable argument that could be made in its defense. A justice committed to this approach would invalidate laws only in extraordinary circumstances.
Although some measure of judicial restraint is essential to the legitimacy of constitutional interpretation, even conservatives recognized that judicial restraint in all cases would seriously abdicate a fundamental responsibility that the Framers themselves entrusted to the judiciary. As James Madison observed when he proposed the Bill of Rights, it would fall to the "independent tribunals of justice" to serve as "the guardians of those rights" and "to resist every encroachment" upon them. In short, the Framers did not intend for the judiciary to act with across-the-boards judicial restraint. Such an approach would clearly undermine a critical element of the American constitutional system, which relied on the judiciary to place a check on majoritarian abuse.
Recognizing this, but still seeking an approach to constitutional interpretation that would rein in the temptation of justices to impose their own values on the nation, political conservatives next came up with the theory of "originalism." First popularized by Robert Bork and Antonin Scalia in the early 1980s, originalism posits that courts should exercise judicial restraint unless the "original meaning" of the text clearly mandates a less deferential analysis.
Under this approach, for example, it would be appropriate for a court to invoke the Equal Protection Clause to invalidate a law that denied African Americans the right to serve on juries, but not to invalidate a law that denied that same right to women, because those who adopted the Equal Protection Clause were not thinking of women at the time. The idea, in short, is to have the best of both worlds - a general presumption of judicial restraint, but the authority and, indeed, responsibility to override that presumption in order to carry out the specific intentions and understandings of those who drafted and ratified any particular provision of the Constitution.
When Justice Scalia was appointed to the Supreme Court by President Reagan in 1986, he no doubt thought that he would be able to make originalism the dominant approach to constitutional interpretation. It was, after all, so clearly the "right" approach that it would surely win the day, especially with him as its champion.
But it was not to be. Indeed, of the seventeen justices with whom Justice Scalia served, only one - Clarence Thomas - has taken seriously this approach to constitutional interpretation, and among the lower courts the approach is rarely invoked. Why did this happen?
There are at least three reasons. First, originalism is internally incoherent. Originalism asserts that those who crafted and ratified our Constitution intended the meaning and effect of their handiwork to be limited to the specific understandings of their own time. But this view erroneously attributes to the Framers a narrow-mindedness and short-sightedness that belies their true spirit. The Framers believed that just as reason and experience enable us to gain greater insight over time into questions of biology, economics, and human nature, so too would they enable us to learn more over time about the essential meaning of the fundamental principles that they enshrined in our Constitution. In short, the notion that the meaning of these provisions should be locked into place based on their own understandings would have seemed completely wrong-headed to the Framers.
Second, originalism is fundamentally flawed because in most instances those who adopted the broad foundational provisions of our Constitution did not themselves have any precise and agreed-upon understanding of the specific meaning of "the freedom of speech," "the freedom of religion," "the equal protection of the laws," or "due process of law." As historians can attest, I is often exceedingly difficult to know with any confidence what the Framers did or did not think about concrete constitutional issues. Although there are some issues about which a strict originalist approach might give a clear answer, for the vast majority of all constitutional issues that come before the Court originalism offers only a muddle of confusion.
Third, in part because of the inherent ambiguity of the originalist inquiry, justices and judges who purport to engage in originalist analysis often simply project onto the Framers their own personal values and preferences. "The Framers were reasonable people. I'm a reasonable people. Therefore the Framers must have intended what I would have intended." The result is an unprincipled and often patently disingenuous jurisprudence. This was perfectly evident, for example, in the pattern of Justice Scalia's own votes on the Court.
In an analysis of Justice Scalia's votes in twenty of the Court's most important constitutional decisions between 2000 and 2013, which dealt with such diverse issues as the 2000 presidential election, gun control, voter disenfranchisement, affirmative action, search and seizure, abortion, due process for persons suspected of terrorism, takings of private property, the death penalty, campaign finance regulations, the freedom of religion, and the rights of gays and lesbians, every one of Justice Scalia's votes in these cases tracked perfectly the conservative political position. Despite all the talk of originalism as a principled mode of constitutional interpretation, Justice Scalia's votes make clear that originalism had little, if anything, to do with his actual decision-making.
In a few of these cases, such as those involving laws restricting abortion or denying the freedom of gays and lesbians to marry, which Justice Scalia invariably upheld, his votes could be explained by a strict originalist philosophy. But in the vast majority of these decisions, Justice Scalia's votes cannot fairly be explained by, or even reconciled with, any meaningful theory of originalism.
These would include, for example, his judicially activist votes to hold unconstitutional laws restricting the amounts that corporations can spend in the electoral process, laws authorizing affirmative action in higher education, laws regulating guns, laws protecting the right of African-Americans to vote, laws promoting racial integration in public schools, and the laws of the State of Florida in the 2000 presidential election.
Thus, as an advocate for originalism, Justice Scalia was his own worst enemy because he could not bring himself to abide by the very tenets of constitutional interpretation that he so vigorously championed. In so doing, he helped bring about the failure of originalism. This, for him, was no doubt a bitter disappointment. (It worked out rather well, though, for the future of American constitutional law.)

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