Scalia and Thomas: Originalist Sinners

Yesterday's regrettable decision by the Supreme Court to strike down school integration programs in Louisville and Seattle, in addition to being bad on the merits, exposes some tensions and internal contradictions within the conservative jurisprudence currently in ascendance in the federal courts.

The most obvious contradiction is how much more seriously the Court's conservatives take racial discrimination when it involves white people. This was particularly glaring in the case of the late Chief Justice William Rehnquist, who opposed Brown v. Board of Education as a Supreme Court clerk and urged Barry Goldwater to argue that the 1964 Civil Rights Act was unconstitutional, but suddenly believed in a more robust equal protection clause where affirmative action was concerned. But this can be seen in many cases -- it's rather hard to square, for example, the conservatives' alleged commitment to a "color-blind" Constitution with their willingness to wink at even the most egregious discrimination in jury selection.

But another contradiction has to do with the grand theories of constitutional interpretation that conservatives allegedly adhere to. We are often informed (sometimes by the Justices themselves) that the Court's conservatives have a more legitimate jurisprudence because their "originalist" philosophy prevents them from simply making decisions that follow their political views. The affirmative action jurisprudence of Antonin Scalia and Clarence Thomas, however, makes clear that "originalism" can easily be stretched or even ignored entirely if it interferes with strongly held policy preferences.

The originalist difficulty with affirmative action is part of a broader problem pertaining to issues of racial discrimination and the 14th Amendment's equal protection clause. For good reason, nobody who believes that the great desegregation case Brown v. Board of Education was incorrectly decided could be confirmed to the Supreme Court. But the originalist case for the decision is very weak, and illustrates why originalism doesn't necessarily do much to constrain judges in other cases.

The problem with Brown and originalism is that there is very little evidence that the 14th Amendment was understood at the time of its ratification as prohibiting school segregation. It is not strictly accurate to say that originalism cannot accommodate the result in Brown, but it can be done only by draining the theory of any real content.

The most common approach -- sometimes accompanied by some cherry-picking of quotes from the 14th Amendment's framers in Congress, with little attention paid to its ratifiers in state governments -- is to argue that we should read the amendment not as embodying any specific principle about segregation, but rather as proscribing racial discrimination at a more abstract level. Because subsequent events prove that segregation and racial equality were incompatible, an originalist can declare Brown to be right. The problem, however, is that if constitutional principles are understood at such a high level of abstraction, then virtually any outcome in any case contestable enough to get to the Supreme Court can be called "originalist." And indeed, Scalia's choice to climb the ladder of abstraction to a broader principle opposing racial discrimination (in the Louisville and Seattle cases) but not to a principle opposing gender discrimination (in 1996's VMI case) -- although no such limitation can be found in the text itself -- seems arbitrary and politically convenient.

Affirmative action cases pose a similar but even more difficult problem for conservative originalists. It is implausible in the extreme to claim that the equal protection clause was generally understood, at the time that Congress was creating the Freedman's Bureau, as prohibiting even remedial or otherwise benignly intended racial classifications. And neither Scalia nor Thomas has even tried to make a serious historical argument to this effect. Rather, they make policy arguments or speak in abstract terms about the principle of "color blindness," a principle that is consistent with but hardly compelled by the 14th Amendment's broad language. The Scalia/Thomas position, moreover, is inconsistent with the central purpose of the equal protection clause: to prevent the perpetuation of a formal caste system through informal means.

Which is all to say that any originalism being used in these cases would be so thin as to place no more constraints on judges than "living constitution" aspirationalism or any other theory would. Once originalism is removed from concrete historical meanings, it can justify almost anything. (And while Scalia has argued that originalism should yield in some cases to stare decisis, since a majority of the Court has never held that the Constitution is strictly "color-blind," this can't apply to affirmative action cases.)

And that's even not the worst of it. Consider the case of Adarand v. Pena, in which Scalia and Thomas found a blanket constitutional prohibition on federal affirmative action. The problem for originalism here is even more grave, because the 14th Amendment doesn't apply to the federal government. And if it's a stretch to say that the equal protection clause was originally understood as prohibiting all racial classifications, it is absolutely farcical to read this principle into the due process clause of the 5th Amendment, which was ratified when the Constitution protected slavery. Whatever its independent merits, then, the Scalia/Thomas position on affirmative action has nothing whatsoever to do with originalism.

This is not to say that originalism never has any effect on the jurisprudence of Thomas and Scalia (the former in particular). It makes them more likely to directly overturn precedents rather than (in the style of Roberts and Alito) merely refrain from seriously applying them. And in some cases, such as those involving punitive damages, Scalia and Thomas have used originalist methods to reach results that aren't, in fact, congenial to the current Republican coalition. Still, this commitment is very sporadic, and as yesterday's school integration cases remind us, a commitment to grand legal theory rarely constrains a judge when a strongly held political commitment is involved.

Yesterday, this sporadic commitment produced a decision that will contribute further to the disgraceful and ongoing segregation of America's schools. It is a cruel irony that a jurisprudence that supposedly lavishes attention on historical roots would perpetuate racial subordination and inequality in the name of a constitutional provision whose central purpose was to uproot it.

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