On Political Books

June/July/August 2014 Alone on His Own Ice Floe

How Antonin Scalia ceased to be a powerhouse jurist and became a crank.

By Michael O'Donnell

O’Connor is tough cookies, and claims not to have been bothered by Scalia’s harsh tone over the years. Whether or not that is true, the same cannot be said for the sensitive Kennedy, whose social libertarianism and grandiloquent rhapsodies have made him a particular target for derision. Scalia chased him away like a bully on a playground. In the critical abortion decision Planned Parenthood v. Casey (1992), Kennedy, contributing to a joint opinion along with O’Connor and David Souter, described a woman’s “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Moist and misty though those sentiments be, a prudent opponent would hold his tongue so as not to alienate a potential ally in future cases. Not Scalia. When referring to Casey in a later decision, he openly mocked its “sweet-mystery-of-life passage.”

Casey is a good example of Scalia’s ineptitude as a coalition builder. The Court initially voted 5-4 to uphold Pennsylvania’s tough abortion law and to overturn Roe v. Wade. But then Kennedy began to wobble. Scalia tried to reinforce his vote, inviting him on a walk to discuss the case. (When Kennedy’s papers become available to future historians, this encounter will be a must-read.) As Murphy writes, Scalia left the conversation believing he had convinced Kennedy to stay on board. But Kennedy had already defected: along with Souter and O’Connor, he was secretly at work on the joint opinion that would modify but ultimately spare Roe. Scalia had engendered no loyalty in previous cases that would have enticed Kennedy to hold the line; he could not call upon close friendship or affection. Who knows, Kennedy may have even enjoyed sticking it to a colleague who had savaged him ruthlessly in case after case. It was the type of scenario where the more pragmatic and collegial tactics of a Brennan or a John Paul Stevens might have made the difference.

Indeed, Murphy narrates several cases where those two justices easily outmaneuvered Scalia to advance their own interests. In South Carolina v. Gathers (1989), a capital case concerning the use of victim impact statements during sentencing, Justice Byron White was the undecided justice. The liberals wanted to prohibit such statements as inflammatory, while the conservatives, including Scalia, believed they were permissible. Brennan picked up White without difficulty by writing a narrow decision permitting victim impact statements generally, but finding that such a statement was inappropriate in the case at hand because of its unique facts. In another abortion case, Webster v. Reproductive Health Services (1989), Stevens picked off O’Connor by writing a memo catering to her doubts about the majority decision, minimizing the damage from a conservative victory.

Scalia purports to be above such deal making. The Constitution says what it says, and it means what it means. You might as well horse-trade verses of holy scripture! But while this type of sanctimony is common in the law, it is nevertheless foolish. When nine judges must jointly interpret statutes, rules, and constitutional text, those who cooperate will get things done. Those who rigidly go their own way will not. Scalia’s recent victories in Second Amendment cases (District of Columbia v. Heller, 2008) and campaign finance law (Citizens United v. FEC, 2010, and McCutcheon v. FEC, 2014) represent not the triumph of reason or coalition building but of raw political power: Republican presidents have appointed enough justices to win the day. It is no surprise that Scalia’s hero is Sir Thomas More, the patron saint of lawyers who refused to agree to the annulment of King Henry VIII’s marriage and was executed for it. To Scalia, More is an inspiring and principled role model. Yet there are other interpretations of More’s defiance. Hillary Mantel suggests in the novel Wolf Hall that at the time, everyone actually thought More was a pompous ass.

Murphy devotes much of his book to examining Scalia’s vaunted method of constitutional interpretation, which is called originalism. Scalia’s originalism differs from, say, Judge Robert Bork’s, who claimed to divine the “original intent” behind constitutional provisions. What, Bork asked, did the Founders intend with phrases like “cruel and unusual punishments,” “reasonable searches and seizures,” and “equal protection of the laws”? In a series of books and lectures, Scalia emphasized that he was interested not in the Founders’ original intent, but in the text’s “original meaning.” In his own words: “What was the most plausible meaning of the words of the Constitution to the society that adopted it?” What did the general public understand “cruel and unusual punishments” to mean when the Bill of Rights was ratified in 1791? This approach—judicial interpretation as time travel—has led Scalia to some offensively wooden results, like insisting that the Fourteenth Amendment’s Equal Protection Clause, which was adopted after the Civil War, does not prohibit sex discrimination.

The eminent historians of the founding era think Scalia is on a fool’s errand. Murphy renders a great service by quoting their reflections at length. Stanford historian Jack Rakove notes,

Historians have little stake in ascertaining the original meaning of a clause for its own sake, or in attempting to freeze or distill its true, unadulterated meaning at some pristine moment of constitutional understanding. They can rest content with—even revel in—the ambiguities of the historical record, recognizing that behind the textual brevity of any clause there once lay a spectrum of complex views and different shadings of opinion.

Likewise, Gordon S. Wood of Brown University points out, “not only were there hundreds of Founders, including the Anti-Federalists, with a myriad of clashing contradictory intentions, but in the end all the Founders created something that no one of them ever intended.” Judge Richard Posner has derided Scalia’s originalism as “law office history,” in which the justice, untrained and incompetent as a historian, searches out historical sources to bolster his position, ignoring or downplaying those that contradict it. Scalia has made a career of scorning the use of legislative history—committee reports and floor speeches—to interpret statutes, because he says the process amounts to looking out over a crowd and picking out your friends. Finding the Constitution’s original meaning seems awfully similar.

If those are the mechanics of originalism, what about its politics? Scalia has insisted, loudly and repeatedly, that originalism “establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself.” This is nonsense dressed up in jargon. Originalism is by its very nature a reactionary enterprise that addresses contemporary problems by turning back the clock 250 years. Small wonder that it overlaps closely with Scalia’s socially conservative politics. Suppose a justice were to announce that she planned to interpret the Constitution in accord with the latest practices in Vermont—or, better yet, Sweden. This “neutral” principle would of course be blatantly progressive. Suppose further that the justice gave speech after speech insisting that Swedenism was strictly divorced from her politics—even though she herself was the most outspoken liberal on the Court. You would not only disbelieve her, you would begin to lose respect for the institution she served.

Michael O'Donnell , a frequent contributor to the Washington Monthly, is a lawyer living in Chicago with his family.


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