Will originalism survive Justice Antonin Scalia? Will he be remembered, as President Obama suggested just hours after his death, as “one of the most consequential judges and thinkers to serve on the Supreme Court”? Initial comments have for the most part seconded the president's kind words: Scalia was “brilliant,” “incisive,” “larger-than-life.” Scalia's record, however, is mixed, and his place in the court's history is yet to be determined.
In his three decades on the high court, Scalia had an undeniable impact in several areas of the law. His originalist reading of the 4th Amendment, which requires a warrant before any kind of police search, and of the 6th Amendment's Confrontation Clause, giving defendants the right to face their accusers, changed police procedures and provided greater protection to persons accused of crime. As Scalia told the Georgia Bar Assn. last spring, those cases alone ought to make him the “poster boy of the criminal defense bar.”
Scalia famously argued that only by reading the Constitution in the light of the Framers' original intent can judges arrive at an impartial and objective understanding of the document. He was a caustic critic of activist courts — especially if they were liberal — but originalism itself gives conservative judges a fig leaf to cover their activism. Close observers of the court have noted that whenever Scalia invoked an originalist interpretation of the Constitution, it usually favored his biases. In the 2010 Citizens United case — which allows companies to make large campaign contributions from their corporate treasuries — Scalia wrote a concurrence in which he claimed the Framers believed in free speech rights for corporations. It astounded and dumbfounded historians who know that corporations barely existed in 18th century America.
Originalism has long been under attack, and not just by its political opponents. How is it possible to discern absolutely the Framers' intent? A book published last fall revealed that James Madison's notes on the Constitutional Convention, long considered a documentary source on the debates of the Framers, was edited later by Madison to emphasize his and Thomas Jefferson's states' rights view of government rather than that of their archenemy, Alexander Hamilton, who believed in a strong central government. Moreover, there are many parts of the Constitution for which there is no contemporary source of meaning. The basis for impeachment, for example, is “high crimes and misdemeanors,” for which no definition is to be found in the Federalist Papers or elsewhere.
Scalia will without doubt be remembered as one of the best writers on the court. Even those who disagree with his opinions read them just for the fun of it. But he often went too far, especially when in dissent, and his tirades insulted more moderate conservatives such as Sandra Day O'Connor and Anthony Kennedy. The justices shrugged it off with a “well, that's just Nino.” In recent years, observers have noted that a nastiness is showing up in lower federal courts. A number of opinions have attacked opposing jurists not just on jurisprudental grounds, but on a personal basis as well. “If Scalia can do it,” the writers seem to think, “then so can we.”
Scalia, appointed by President Reagan, arrived at the court buoyed by his supporters' belief that he would serve Chief Justice William Rehnquist much as William Brennan had the much more liberal Chief Justice Earl Warren — providing the intellectual underpinning for a new conservative majority. But Scalia lacked an essential Brennan attribute.
At the beginning of each term, Brennan would ask his new law clerks what was the most important number on the court, and then he would hold up five fingers — the number of votes needed for a majority. Brennan worked to make his opinions acceptable to the undecided and middle-of-the road justices; he compromised. By doing that, he often turned a minority into a majority, and a potential defeat into a victory.
Admittedly, when Scalia spoke for the court, he toned down his rhetoric in order to fairly represent the common ground that had built the majority. His many solo minority opinions however are evidence of his un-Brennanlike demeanor. In them, he seems very much like the most liberal justice of the 20th century, William O. Douglas, who said the only soul he had to save was his own.
Scalia's harsh, solo opinions were especially notable in the last decade of his tenure, when the majority decided a series of cases recognizing the civil rights of the LGBT community. Scalia attacked his colleagues for signing on to the “homosexual agenda,” as he derided it, and claimed not only that the Constitution gave no rights to gay people, but the non-gay majority had every right to protect itself from contamination. With each case his dissents grew shriller, reaching an apogee in the 2013 Windsor case, in which a majority of the court struck down DOMA — the Defense of Marriage Act — and declared that the federal government had to recognize same-sex marriage in those states that had adopted it.
Ironically, it is one of Scalia's most important dissents. He attacked Kennedy's majority opinion, and then went on to warn that the decision was an open invitation to challenge state laws against same-sex marriage in the courts. He laid out several arguments, all implicit, he claimed, in the Kennedy opinion, that activists would use to demand approval of same-sex marriage as a constitutional right.
The very next day, ACLU chapters in Pennsylvania and Virginia went into federal court with the Scalia dissent as the template for their arguments. Same-sex advocates won nearly every case in the lower courts, and the Supreme Court validated their claim last term.
Historical reputation, of course, requires time for scholars to assess. Scalia and his ideas have played an important role in the Rehnquist and Roberts courts. It will take time, however, to see if originalism can withstand the political, jurisprudential and scholarly analyses that will be forthcoming; whether the blame for the growing nastiness in lower courts will be placed at his feet; and whether his inability and unwillingness to forge a conservative coalition to advance his conservative views will make him no more than an interesting oddity in the court's history.
Melvin I. Urofsky is a legal historian and the author, most recently, of “Dissent and the Supreme Court.”