Supreme Court Justice Antonin Scalia passed on unexpectedly last week. I have been wanting to write a post reflecting on him and his approach to constitutional law. Here it is!
A. I do not know exactly when I first heard of Justice Scalia. I know that it was sometime when I was in high school.
We watched the TV program Picket Fences in the 1990s. There was an episode in which lawyers Douglas Wambaugh and D.A. John Littleton (played by Don Cheedle) go to the Supreme Court to argue a case. Wambaugh gets some coaching from the legendary Alan Dershowitz about what to expect from the justices. Dershowitz said that Scalia likes to interrogate lawyers, like professors do to their law students. Scalia enjoys good legal sparring! And, sure enough, that’s what the Scalia character did on the Picket Fences episode. And that is what the Scalia character did in the movie The People vs. Larry Flint. And that is what the real Scalia did whenever I had the opportunity to listen to oral arguments before the Supreme Court (i.e., on C-Span). I read an article sometime this past week that said that this did not happen that much in Supreme Court oral arguments before Scalia came along. I do not know how true that is. One thing I will say, though: lawyers probably felt that their mettle was being tested when they were being questioned by Justice Scalia!
B. When I was in high school, there was a Scalia decision that I thought might affect me. I was part of an Armstrongite church, so I took a few weeks off from school to attend the Feast of Tabernacles. That got me in trouble with the public school’s attendance policy: you miss such-and-such days, and you could be suspended, maybe even expelled, and it would go on your permanent record. We believed that this rule should take second place to our religious freedom.
Well, in 1990, there was the Supreme Court case of Employment Division vs. Smith. Justice Scalia wrote the majority opinion. The case was about Native Americans who got fired for smoking peyote, which they used in religious observances. The state of Oregon refused to provide them with unemployment benefits because they had smoked peyote. The question before the court concerned whether the Native Americans’ religious beliefs should take precedence over the law. Well, Justice Scalia sided with the state of Oregon in that case. He put the law ahead of the religious beliefs of the Native Americans.
We did not care for that decision. Neither, for that matter, did a lot of other people, on both sides of the political spectrum. Congress responded by passing RFRA, the Religious Freedom Restoration Act. It was supported by the ACLU, but also the right-wing Concerned Women for America. As a conservative at the time, I was disappointed with Scalia’s decision, especially because I knew Scalia was one of the conservative justices on the court. But I was happy that conservatives were supporting RFRA. Later, in 1997, the Supreme Court said that RFRA was unconstitutional because the Supreme Court, not the Congress, is what defines the rights under the U.S. Constitution.
A lot of debates today—-about whether conservative Christian bakers should be required to bake cakes for same-sex marriages, or about whether conservative Christians have the right to refuse service for religious reasons, etc.—-have their roots in RFRA. In 2014, Scalia himself joined the majority in striking down an HHS provision that would have required Hobby Lobby to pay for contraceptions it considered abortifacients, in violation of religious beliefs. There, Scalia supported the law taking second place behind religious convictions. Whether Scalia in that case was contradicting his stance in Smith, I do not know. He could probably have referred to nuances or differences between the cases to justify his position.
C. In college, we had a place where we could put our favorite quotes. I posted something Justice Scalia said: “We are fools for Christ’s sake. We must pray for courage to endure the scorn of the sophisticated world.” That was essentially me giving the middle-finger to the liberals at the school!
D. I read some of Justice Scalia’s writings in college. For an Honor Scholar’s meeting, we had to read Scalia’s explanation of textualism. As a senior, I took a class on civil rights and civil liberties, and our textbook included opinions and dissents from Justice Scalia. Scalia was probably the clearest writer of all of the justices. And, in my opinion, his arguments were usually pretty good, as were the arguments on the other side. I do not remember everything that I read back then, though, which explains my point in (E.).
E. I struggle somewhat to define what exactly Justice Scalia’s principle of legal interpretation was. Was he a textualist, one who focused on what the text itself explicitly said? Was he an originalist, one who thought that we should go with the original meaning expressed by the law’s writers? Were there any times when he believed that changing times should affect one’s interpretation of the Constitution? He is usually distanced from that last approach, but people can be inconsistent, at times.
There have been times when Scalia prioritized textualism over originalism (see here). Textualism itself is usually contrasted with intentionalism (see here). Yet, Scalia did appeal to original intent. And that did not always lead him to ultra right-wing conclusions: for example, he said that there were traditional laws that banned people from waving firearms in public, and so there were limitations on the Second Amendment right to keep and bear arms. Scalia also disagreed with strict constructionism, saying that we should neither interpret the text strictly nor leniently, but reasonably (see here).
This is hearsay, but Ralph Nader wrote a piece about a time when he challenged Scalia’s view that corporations were persons. Nader asked Scalia how that was consistent with Scalia’s originalism. According to Nader, Scalia “added that, like Social Security, which he believed to be unconstitutional, the according of corporations the rights of personhood is so deeply embedded in our socio-economic fabric, that it is unlikely the status quo could be reversed” (see here). Is that allowing the Constitution to be a living, breathing document—-or at least giving it a little breathing room?
There is a lot out there that I can read on this, I am sure. Sometime, I would like to listen to a public debate that Scalia had with the more liberal justice, Stephen Breyer. Maybe then, I could have a more nuanced understanding of their positions. Does textualism mean absurd literalism? Scalia did not always think so. Does seeing the Constitution as a living, breathing document mean allowing the Constitution to mean anything one wants it to mean, as many conservatives allege? I have my doubts that Breyer would go that far.
R.I.P., Justice Scalia.