Scalia's Originalism Shifted The Constitutional Debate

Posted on 02-18-2016 by
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The article below has been republished in full courtesy of Law360, written by Jeff Zalesin.

Justice Antonin Scalia wrote many important opinions for the U.S. Supreme Court, but he may be remembered more for an achievement that transcends any particular case: his long, partially successful campaign to kill the so-called living Constitution and give the text what he saw as its original meaning.


Justice Scalia, who died Saturday at age 79 after serving on the high court since 1986, believed that judges should read the Constitution as it was understood at the time of its adoption, rather than extrapolate the document’s supposed values to reach conclusions that would have shocked the framers. Constitutional originalism — perhaps the best-known aspect of Justice Scalia’s broader text-based jurisprudence — is an important part of his legacy, according to those who knew the justice and studied his work.

Amanda Hollis-Brusky, a political scientist at Pomona College who has written about the conservative legal movement, said Justice Scalia did not invent originalism, nor did he do most of the “intellectual legwork” to develop the theory into its modern form. The late D.C. Circuit Judge Robert Bork was a more important intellectual architect of originalism than Justice Scalia was, she said.

But more than anyone else, Justice Scalia popularized originalism as a democratic alternative to what he saw as the overreaches of the mid-20th-century Supreme Court, she said.

“This was a theory that was totally off-the-wall in the 1970s and the early 1980s in the academy. No one took it seriously,” Hollis-Brusky said of Justice Scalia's originalism. “Now, because of Scalia — because of his influence from the top down, but also because of what he helped build from the bottom up — thousands and thousands of people believe this is a legitimate form of constitutional interpretation, and indeed the only legitimate form.”

Richard D. Bernstein, a partner at Willkie Farr & Gallagher LLP who clerked for Justice Scalia in 1987 and 1988, said the justice was devoted above all to textualism, an approach that puts the actual words of constitutional, statutory and regulatory provisions front-and-center instead of emphasizing the legislative history or the policy goal thought to be behind the text.

Justice Scalia used originalism as a tool to apply textualism to certain disputed or ambiguous language from the Constitution, Bernstein said. In those cases, he said, Justice Scalia’s objective was to determine what the provision originally meant to the public, which is not necessarily the same as what the writers of the Constitution intended to convey.

“Certainly, he did not believe in original intent,” Bernstein said. “He believed in original meaning, and that was as a subset of his greater belief that it is only the legal text that is the law and that the judge should be interpreting the legal text.”

Justice Scalia did not shy away from expressing those beliefs. With tongue in cheek, the justice described himself as a supporter of the “dead Constitution,” contending that the “living Constitution” theory favored by many left-leaning jurists enabled what amounted to legislation from the bench, according to Stuart M. Gerson, a member of Epstein Becker Green who served as acting attorney general under President Bill Clinton and led the civil division of the Department of Justice under President George H.W. Bush.

The influence of Justice Scalia’s originalist argument was profound even outside conservative legal circles, Gerson said in an email to Law360.

“Over three decades of service, Justice Scalia not only created and led a conservative bloc of judicial literalists, but his influence led even his opponents on the court to adopt his approach to the historical exercise of determining what the Constitution was understood to mean by its framers,” Gerson said.

Gerson pointed to District of Columbia v. Heller, the 2008 case where Justice Scalia wrote for the majority in deciding that the Second Amendment protected an individual's right to bear arms outside of militias. Even the dissenters in Heller took an approach influenced by the justice, although they disagreed with his assessment of what the historical evidence showed about the Second Amendment’s original meaning.

At least for a moment, “originalism had triumphed,” Gerson said.

Originalism did not always triumph during Justice Scalia’s tenure. Hollis-Brusky said that for some people, Justice Scalia’s name conjures up thoughts of his originalist dissents in cases about abortion and the rights of same-sex couples. By and large, Justice Scalia failed to convince a majority of his colleagues that the constitutional rights claims in those cases should fail because the Constitution and its amendments were not originally understood to protect such rights.

Yet, Justice Scalia’s originalism could be influential even in dissent, especially when it came to “nuts-and-bolts” issues like the constitutional separation of powers, Hollis-Brusky said.

In 1988, Justice Scalia wrote what Hollis-Brusky described as an originalism-inflected dissent in Morrison v. Olson, a case in which the majority upheld the use of special prosecutors who weren’t accountable to the president. Stressing that the separation of powers was “absolutely central” to the system envisioned by the framers, Justice Scalia slammed the majority for allowing what he saw as a clear intrusion on executive power.

“Frequently an issue of this sort will come before the court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis,” Justice Scalia wrote in the dissent’s most famous passage. “But this wolf comes as a wolf.”

Hollis-Brusky said that years later, she saw Justice Scalia speak at an event held by the conservative Federalist Society. In the course of answering a question, the justice started reciting his Morrison dissent, and the crowd joined in, she said.

“It was a moment where you realized how powerful of a figure he’s been for generations of conservative law students coming up through the ranks,” she said.

Despite Justice Scalia’s well-earned reputation as a conservative jurist, his method could lead him to results that political conservatives might dislike, Bernstein said. According to Bernstein, who described himself as more politically liberal than Justice Scalia, the justice was often protective of constitutional provisions that lay out the rights of criminal defendants.

“I think on express constitutional provisions like the confrontation clause or the jury guarantee, he in many ways was their broadest proponent because his view was that the text was broad, the text had no exceptions and it wasn’t the business of the courts to bring in exceptions,” Bernstein said.

Ultimately, Bernstein said, Justice Scalia’s greatest impact may have been outside of constitutional law. With his strict textualism, the justice shifted the focus of statutory interpretation away from factors such as legislative history and onto the text itself, he said.

Of course, Justice Scalia was sometimes on the losing side of statutory construction cases. He dissented bitterly in King v. Burwell, last year’s case about Affordable Care Act tax credits, accusing his fellow conservative Chief Justice John Roberts of “interpretive jiggery-pokery.” But even in that case, the majority opinion was more textualist than it might have been in a world without Justice Scalia’s influence, Bernstein said.

“He really fundamentally changed the way statutes are interpreted across the spectrum, not just among conservatives,” he said.

This article has been republished in full and is courtesy of Law360. For the latest breaking news and analysis on energy industry legal issues, visit Law360 today.

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