Antonin Scalia: A Contrary View

“I come to bury Caesar, not to praise him.”

-Marc Anthony in Shakespeare’s “Julius Caesar”

              The recent death of long-time Supreme Court Justice Antonin Scalia has elicited numerous tributes suggesting he was a great and exceedingly influential jurist who did much in his work on the Court to legitimize “textualism” and “originalism” as guiding means for analyzing and resolving legal issues.  Political conservatives in particular have extolled his supposed intellectual integrity.  I have a decidedly different view of his work and influence.

In terms of judicial philosophy, Scalia was a “results-oriented” jurist.  That phrase is not a compliment.  It describes a judge who determines the result he or she prefers and then writes the opinion to support that result.  The alternative approach is to objectively apply the law to the facts of the particular case before the court, so that the decision reached is based on the “rule of law” without regard for political or ideological outcomes.  Legal education focuses on this non-ideological skill: the ability to apply the relevant law on an issue to the facts of the case, thereby determining the result that will be reached.

Lawyers (especially those who engage in litigation) become skilled at using this paradigm to the benefit of their clients.  Thus in a given case, the lawyer for the plaintiff might argue that the relevant law to be applied should be interpreted one way, while the lawyer for the defendant might argue that the relevant law should be interpreted a contrary way.  The two lawyers then try to persuade the judge hearing the case that their interpretation of the relevant law is correct.

Supreme Court Justices are lawyers.  (The Constitution doesn’t require them to be so, but they all have been and likely always will be.)  And by the time they get to the Supreme Court, they are pretty good at using that paradigm of legal reasoning.  Antonin Scalia was pretty good at it—even better, perhaps, than some of his colleagues.

But he wasn’t doing anything different than his colleagues in the way he decided the cases the Court considered.  He just gave his method a title and cloaked his decisions in a kind of sanctimonious claim to integrity of reasoning that he then used to figuratively bully his colleagues into either accepting his perspective or resisting it more forcefully than they otherwise should have had to.

Of course, when you’re a Supreme Court Justice, you are often required to decide cases for which the law is unclear or uncertain.  What do specific constitutional provisions mean?  What is meant in a specific statute enacted by Congress?  How is an administrative regulation supposed to be understood?

These kinds of questions require the Justices to interpret text and to give meaning to something drafted by others (i.e., the country’s founders, Congress, or executive agencies and departments).  In making those interpretations, the Justices may well be led by their own experiences, their own beliefs, their own perspectives.  Scalia claimed not to be so influenced.  He claimed that he was only led by the originally intended meaning of the provision under consideration.  Ah, if only that claim were true.

In fact, Scalia, like all of his colleagues, viewed cases of first impression through the lens of his own experiences and personal beliefs and attitudes.  His political and social conservatism was consistently in view in almost every opinion he wrote or signed on to.  Rarely did his vote diverge from his political, social, cultural, religious, or ideological views.  Thus he consistently found that the Equal Protection Clause of the Fourteenth Amendment applied solely to racial discrimination (refusing to apply it to gay rights or even to the rights of women), using his originalist methodology to claim that the Amendment was only intended to overcome the evils of slavery.

But with respect to the Second Amendment, he had no trouble finding a personal right to bear arms in the language of that Amendment (which expressly ties the necessity of a “well-regulated militia” with the “right to keep and bear arms”).  His “originalist” approach didn’t hinder him from somehow concluding that the drafters of that Amendment were not seeking to protect the state militias that were common in 1789, or from finding that those same drafters would have equated the muskets and swords of 1789 with today’s AK-47s and 50-round ammunition clips.

Nowhere was Scalia’s charade more evident than in the Court’s opinion in Bush v. Gore, where Scalia joined his conservative colleagues in accepting the appeal from the Florida Supreme Court’s decision that would have allowed a full re-count of the votes in Florida to proceed, even though that decision was inappropriate under principles of federalism that Scalia otherwise strongly supported.  And then he joined the majority in the 5-4 decision that declared the re-counting of votes would violate the Equal Protection Clause of the Fourteenth Amendment, even though he had never so construed that clause in the past (and never did thereafter).

The Court’s decision in Bush v. Gore was so contrary to the jurisprudence the Court had well established on the Equal Protection Clause that the majority’s opinion expressly stated that the decision and the opinion were never to be relied on in the future.  In other words, the Court implicitly acknowledged that it had decided the case just to secure the election of George W. Bush, whose election would have been threatened by a complete re-count of all the votes.

Scalia could have hid his own views on the case behind the non-specific, “per curiam” non-identification of the author of the opinion the majority issued, but he proudly announced the Court’s decision (stopping the re-counting of all those chad-indented ballots).  The result, as we all know, was the election of a man who lost the popular vote and won the decisive electoral votes from Florida only because Antonin Scalia and his conservative colleagues on the Court wanted that result.

Scalia was a brilliant lawyer and a skilled writer.  But he was no less directed by his personal beliefs and ideological views than any of his colleagues.  And in that regard, he is no more deserving of praise.