The Scalia Problem: It Wasn’t Originalism or Textualism -- It Was Trumpism

(AP Photo/Jim Mone)

Supreme Court Justice Antonin Scalia speaks at the University of Minnesota in Minneapolis on October 25, 2015.

Two years since Justice Antonin Scalia’s death on February 16, 2016, no new book has offered an overall assessment of his three decades as one of the Supreme Court’s most quoted, contentious, vilified, and celebrated members. That silence is now broken. Richard Hasen, law professor at the University of California at Irvine, prolific author, and host of his own Election Law Blog, has just published a compact and accessible but wide-ranging volume, The Justice of Contradictions: Antonin Scalia and the Politics of Disruption. The book tees up the issue of the extent to which the jurisprudential ideologies the late justice spent his lifetime touting—“originalism” for interpreting the Constitution and “textualism” for deciphering statutes—were and are serious and meritorious efforts at jurisprudence, or, on the contrary, mere slogans to gussy up a political agenda.

Few will be surprised by the answer to that question implicit in Hasen’s narrative. As its title suggests, the book details what Hasen—tactfully—terms his subject’s “contradictions.” Scalia never consistently owned up to which of the very different versions of his interpretive lodestars he subscribed. Notoriously, he picked and chose among competing theories, and, indeed, ignored or violated outright his basic originalist/textualist canon when convenient for justifying desirable—usually conservative—results.

For progressives, it is critical to get their arms around this history—but not merely to mock their late nemesis. The real challenge is to understand why Scalia’s catechism has won the broad influence it has had, both in legal circles and especially in politics. Without taking on that inquiry, progressives have little hope of countering the agendas that have, for decades, driven conservatives to beaver away, as Linda Greenhouse recently wrote, at weaponizing the federal judiciary. In this fateful struggle, conservatives have registered intensity, smarts, and impact that progressives have rarely matched.

Hasen shows how Scalia chronically finessed such questions as whether court decisions should be guided by broadly worded constitutional text, or whether “majestic” phrases should be narrowly construed to mirror the societal practices contemporaneous with their adoption. To take just one of many examples, Scalia often insisted that the 14th Amendment’s guarantee of “equal protection of the laws” outlawed only discrimination based on race, but not gender, let alone sexual orientation. He bypassed the expansive constitutional text on the grounds that its framers were actually preoccupied with eliminating only state-sponsored racial discrimination against African American former slaves.

Conversely, however, when the constitutionality of affirmative action came up, Scalia executed a 180. He ignored (refusing even to discuss with his clerks) the overwhelming evidence that such an actual-intent approach would validate affirmative action measures benefiting racial minorities, despite the fact that the same Congress that passed the 14th Amendment also enacted express racial preferences to help former slaves adjust to their new freedom.

Surprisingly, Hasen insists that Scalia’s inconsistencies do not reflect bad faith: He writes that the justice sincerely “envisioned judges using neutral, language-based tools of interpretation.” He was no “less principled or more result-oriented” nor “more driven by ideology than other justices.” Indeed, the author suggests, Scalia may have been unfairly singled out for heightened criticism because he “proclaimed himself as following a higher standard,” one that “neither he nor the other justices could meet.”

Indeed, it is that self-imposed “higher standard” which Hasen seems intent on principally blaming for the blotches that mar the record of this “incredibl[y] gifted” jurist. Hasen’s target, to which he devotes two and a half of his eight chapters, is the “language-based tools of interpretation” on which Scalia staked his career—originalism and textualism. “The gap between Scalia’s stated approach and his practice in deciding real cases,” Hasen writes, revealed not so much the justice’s own faults as “the difficulty of using [such methodological approaches] to limit judicial discretion.” “The notion,” he adds, “that judges can use originalist [or textualist] methods to ‘find’ or ‘discover’ the law rather than make it, has proven to be an illusion.”

But Hasen’s critique of “language-based” interpretation gets tripped up by a reality check. He fails to answer—or address—a glaring question begged by real-world trends acknowledged in his own account. “Despite [his and others’] criticisms,” he candidly notes, “textualism has had enormous influence.” And not just on the right. Progressive Justice Elena Kagan famously declared in 2015, “We are all textualists now.” When a 2013 5–4 Supreme Court decision struck down a core provision of the 1965 Voting Rights Act, progressive Justice Ruth Bader Ginsburg’s fierce dissent pointedly quoted conservative and progressive originalist scholars, to impugn the majority’s spurning of the “Civil War Amendments’ … language [that] authorized transformative new federal statutes to uproot all vestiges of unfreedom and inequality.” And in the last presidential election, the winning candidate spotlighted his pledge to appoint a justice in Scalia’s mold. Neil Gorsuch’s accession, as Hasen notes, “means that Scalia’s language-based interpretive approaches are likely to live on in the judiciary, at least in the near term.”

So the question is, why? If originalism and textualism are bunk, as Hasen contends, why are they gaining traction and leaving imprints?

As a matter of common sense, originalism and textualism—in principle and sensibly understood—cannot be dismissed as bunk. What Hasen seems to favor (and what Scalia’s nemesis, Judge Richard Posner, characterizes as “pragmatic” jurisprudence)—essentially, situation-specific balancing of multiple variables—may work in academic debates about how judges in fact make decisions. But this play-it-by-ear approach will not wash as jurisprudence, politically or philosophically. Judges, certainly life-tenured federal judges, can justify their immense power only by assuring litigants and the electorate that they make earnest, good faith efforts to determine and apply applicable law. Fairly reading the relevant text and its framers’ original understanding is an essential starting point—though, of course, rarely the endpoint—for that exercise.

This is not to bless the blinkered mutations of legal text and history that Justice Scalia and his allies have often confected to gut progressive statutes, usually by ripping discrete words or phrases out of the context of the statute as a whole, ignoring reliable legislative history, and/or cherry-picking among competing dictionary definitions or common-law interpretive “canons.” As Hasen himself writes, the textualism endorsed by the likes of Justice Kagan, or by Chief Justice John Roberts’s 2015 decision construing the Affordable Care Act to authorize tax credit subsidies in all states nationwide, means something quite different from Scalia’s textual contortions. They look to the text of the whole statute, to effectuate—not frustrate—legislators’ operational design.

In the same vein, broad-based recent scholarship, not to speak of framers such as George Washington, Alexander Hamilton, Chief Justice John Marshall, and Reconstruction Republican Congressmen John Bingham and Thaddeus Stevens, often provide robust text-and-original-meaning support for progressive outcomes, and cast the Constitution—the whole Constitution, including its amendments—as, overall, a progressive document.

Progressives should embrace holistic approaches to interpreting statutes, and seize opportunities to wrap their legal and even policy positions in the Constitution. When they contest the right on the esoteric terrain of anti-textualism and anti-originalism, progressives risk appearing disdainful of what laws actually say and what their framers intended—essential ingredients of most people’s civics class recipe for sound judging. That default leaves unchallenged—and widely believed—the claim by Scalia and his followers that they alone embrace fidelity to the Constitution.

That conservative claim is demonstrably false. Transparently, the agendas driving Scalia’s decisions were political. His preoccupation with politics was not simply implicit in his chronic “contradictions.” It was evident in his singular approach to his job. The intended audience for his searing, often misleading or false tirades, was not his colleagues. His blasts were aimed over their heads—at the public, through the media. Who did he expect to influence when, in 2008, he wrote that granting habeas corpus rights to Guantanamo detainees would “almost certainly cause more Americans to die?” Or when, in 2003, he charged that, in striking down laws that criminalize sodomy, the Court had “signed onto the homosexual agenda?” These—typical—cheap-shot one-liners are the stuff of political attack TV ads, not of persuasive legal writing.

Indeed, Scalia often seemed to fancy himself a kind of popular tribune, championing constituencies beleaguered by preference-seeking minorities and privileged elites. More specifically, as Hasen observes, Scalia’s agenda and its favored constituencies “anticipated” those of Donald Trump. His tactics and style aligned with contemporary Republicans’ penchant for breaching norms respected by predecessors.

To take one revealing example: On June 25, 2012, Scalia turned the Supreme Court’s announcement of a decision invalidating certain Arizona state immigration laws into a platform for lobbing anti-immigrant brickbats into that year’s presidential campaign. Before the Court released its decision, Scalia shared with media a novel seven-page “Bench Statement.” (Delivering oral summaries of dissenting opinions from the bench is uncommon; preemptively distributing a written statement was unparalleled.) Scalia’s statement attacked a signature Obama administrative policy neither at issue nor relevant to the decision, promulgated, as the justice conceded, “after this case was argued”—namely, the now familiar DACA (Deferred Action for Childhood Arrivals) program. Styled like a campaign broadside, the statement put a Supreme Court justice’s imprimatur on Republicans’ pet (false) talking point, that “the President declines to enforce … federal immigration law.” Warming to his topic, Scalia issued forth this Trump-worthy zinger: “[Arizona’s] citizens feel themselves under siege by … illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy.”

In addition to thus stoking anti-immigrant animus (and racial animus—he once asserted that, because of affirmative action, “It was the Polish factory worker’s kid who was going to be out of a job”), Scalia anticipated Trump Republicans’ playbook in another crucial respect. While recirculating culture war calumnies resonant within some white working-class constituencies, he also short-changed their economic interests. Systematically, he eviscerated hard-won employment, consumer, and other protections—brazenly flouting the text and original meaning of those laws.

Historically, Scalia’s most distinctive legacy could be as prophet and founding father of the new right’s divisive, no-sacred-boundaries brand of politics, flaunting “constitutionalist” self-labeling while embracing the judiciary as an essential arm of the right’s political agenda. Before Mitch McConnell’s Senate disdained consideration of Obama’s Supreme Court nominee Merrick Garland, Scalia laid the political groundwork, by delegitimizing Garland’s moderate, center-left approach to judging.

In response, progressives should downplay sparring over abstract methodologies, and instead trumpet the often compelling case that justice and the law, as written and originally understood, are on the progressive side.

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