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
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.
The right to bear arms: resources
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