Scalia's Court

A Legacy of Landmark Opinions and Dissents

Antonin Scalia, Kevin A. Ring, Kevin A. Ring

• Editorial: Regnery
• Año: 2016
• ISBN:
  9781621575337
• Categoría: Politics & International Relations
• Categoría: Conservatism & Liberalism

"The passing of this brilliant jurist is a great loss, but his writings—with their plain language and constitutional moorings—will guide generations to come." - Speaker of the House Paul Ryan The sudden passing of Justice Antonin Scalia shook America. After almost thirty years on the Supreme Court, Scalia had become as integral to the institution as the hallowed room in which he sat. His wisecracking interruptions during oral arguments, his unmatched legal wisdom, his unwavering dedication to the Constitution, and his blistering dissents defined his leadership role on the court and inspired new generations of policymakers and legal minds. Now, as Republicans and Democrats wage war over Scalia's lamentably empty Supreme Court seat, Kevin Ring, former counsel to the U.S. Senate's Constitution Subcommittee, has taken a close look at the cases that best illustrate Scalia's character, philosophy, and legacy. In Scalia's Court: A Legacy of Landmark Opinions and Dissents, Ring collects Scalia's most memorable opinions on free speech, separation of powers, race, religious freedom, the rights of the accused, abortion, and more; and intersperses Scalia's own words with an analysis of his legal reasoning and his lasting impact on American jurisprudence. "I don't worry about my legacy, " Scalia once told an audience at the National Archives. "Just do your job right, and who cares?" Now that "the lion of American law has left the stage, " as the U.S. Attorney General put it, it is for the rest of America to worry about his legacy—and to care.

CHAPTER ONE

SCALIA’S PHILOSOPHY

JUSTICE ANTONIN SCALIA was a verbal craftsman. His mastery of language and respect for words carried over into his judicial philosophy. That philosophy was fairly simple and straightforward, and Scalia explained and championed it in his opinions, public speeches, and even a couple of books. As with his memorable opinions, the basis of Scalia’s philosophy was that words matter.

Scalia was a self-proclaimed “textualist.” He believed laws—and especially that supreme law known as the Constitution of the United States—say what they mean and mean what they say. In short, when interpreting the Constitution, Scalia thought judges should focus on the text. If someone claims he is being denied the exercise of a right or if the government asserts it has authority to take a given action, courts must make certain there is specific textual support for each assertion.

If the proper meaning of the text is clear, judges should then determine whether it provides support for the claimed individual right or governmental authority. If so, the claim is valid; if not, it should be rejected. The analysis is complete.

If the text is ambiguous or not dispositive, however, Scalia said courts should look for support for the claimed right or authority in the legal and social traditions of the United States. If an agency of government had been exercising a certain authority since the Constitution was adopted and it had been accepted by law or custom, it should stand. Conversely, if an asserted individual liberty had been restricted or eliminated by the states throughout history, the claim for constitutional protection should fail. Scalia used the lack of textual and historical support to oppose recognition of, among others, the “right” to abortion (chapter five) and the “right” to die (chapter sixteen).

Scalia also advocated adoption and adherence to general and clear rules when interpreting the Constitution. For instance, with regard to the Fourth Amendment’s prohibition of unreasonable searches and seizures, Scalia noted that it was not always clear what constitutes a seizure.¹ Of course an individual has been seized if he has been physically forced into the back of a police car, but what if a suspect were being chased by police on foot? He certainly does not have freedom of movement at that point, but has he been seized for constitutional purposes? Scalia said that questions like this should be answered whenever possible with clear general rules. In a case involving these very facts, he joined an opinion that argued that police conduct does not constitute a seizure until it has had “a restraining effect.” Such a rule, if adopted by the Court, would help to define what constitutes a seizure for all future related cases.

In Scalia’s view, general rules are beneficial because they provide notice and certainty to the public that is expected to obey the law.² They also ensure that the American people will receive equal and consistent treatment and not be subjected to the predilections of the current justices on the Court or to shifting popular opinion.

Consistent with his textualism and preference for clear lines, Scalia argued for a strict separation of powers between the executive, legislative, and judicial branches of the federal government. In his view, each branch of government had the authority granted to it by the Constitution. No more, no less. None of the branches could give up its power or exercise authority given to another branch, even if consent was explicit and the goal was more efficient government. Scalia contended the Constitution’s structural designs—separation of powers (division of power among three federal branches) and federalism (division of power between federal government and states)—were more important to safeguarding individual liberties than the Bill of Rights (chapter three).³

Nevertheless, the Bill of Rights was not unimportant in Scalia’s philosophy. He believed the freedoms enumerated in the Bill of Rights were nonnegotiable and deserved the highest level of protection, even when competing interests seemed convincing. For example, the Confrontation Clause of the Sixth Amendment guarantees criminal defendants the right “to be confronted with the witnesses against him.” The clause does not say defendants shall have that right “sometimes” or “often” and it does not cover “some” witnesses. All the time, all witnesses. Yet a majority of the Supreme Court had held that in light of modern psychology’s concerns about the impact on youthful accusers and witnesses, especially those alleging sexual abuse, use of closed-circuit television does not abridge a defendant’s confrontation right. Scalia opposed the Court’s decision and said the Sixth Amendment should not be watered down to avoid potential harm to child witnesses.⁴ The text is clear. The right is guaranteed.

These are the types of difficult cases, Scalia believed, for which the Framers designed a Constitution and gave the justices of the Supreme Court the benefit of life tenure—to prevent society from changing the law in ways that violate the enduring values the nation enshrined in the text of the Constitution. After all, Scalia argued, a democratic nation does not need a written constitution to reflect current values.⁵ Elections do that. A written constitution is needed to protect values against prevailing wisdom.

For example, the First Amendment to the United States Constitution prohibits the suppression of free expression. The Framers wanted to create an environment in which all ideas would be heard and debated and the best would prevail. They understood that for a self-governing people this freedom had to include the right to criticize the government.

Nearly two hundred years later, a substantial majority of the American public seemed willing to forfeit some of that freedom to curb a form of political protest that offended it: burning the American flag. The Congress, being a political body, responded by passing the Flag Protection Act of 1989. Scalia voted with four of his colleagues to strike down the law on the grounds that the act of burning the flag amounted to protected speech.⁶ The value enshrined in the First Amendment—freedom of speech, especially political speech—must trump popular opinion, however strongly held, or the First Amendment’s guarantee is meaningless (see chapter thirteen).

Scalia contended that the nation’s founding charter is flexible enough—as written—to deal with most challenges presented by modernity. The same guarantee of freedom of “the press,” which covered early American printing presses, applies with equal force today to the online press, even though the Framers could not have foreseen computers, much less the Internet. When ruling on the legality of a police department’s use of thermal imaging to search a suspected drug dealer’s house for contraband without a warrant, Scalia did not find the Constitution lacking, even though it was written before sheriffs had cars, let alone thermal imaging technology. Scalia wrote for the Court’s majority that the Fourth Amendment’s prohibition against unreasonable searches protected Americans against this modern law enforcement practice.⁷

Finally, Scalia’s fidelity to the Constitution did not lead him to conclude that the document could not be changed. He simply argued that it should be amended only according to the procedures set forth in the charter itself. The Constitution’s amendment process was followed when the American people wanted to make structural changes to their government, as when they ratified the Seventeenth Amendment to provide for direct election of United States Senators. And, he pointed out, it was used when Americans wished to create additional individual rights, such as when the Nineteenth Amendment was ratified to guarantee women the right to vote.⁸

Some might believe changes such as women’s suffrage were long overdue and should have been incorporated into the Constitution by a more generous interpretation of another provision, such as the Equal Protection Clause. Yet the Supreme Court in those days did not feel empowered to establish new rights without textual or, at least, historical support. As important and overdue as women’s right to vote was, its legitimacy was established by its adoption—as required by the Constitution—by a two-thirds vote of the Congress and ratification by 75 percent of the states. This legitimacy stands in stark contrast to the way rights are added to the Constitution by activist judges today.

Scalia’s judicial philosophy and methodology for constitutional interpretation were fairly simple to describe but not always easy to apply. Scalia admitted as much.⁹ But he said that adherence to his approach would help to steer judges clear of policymaking roles. Further, Scalia said you can’t beat his methodology with no methodology.¹⁰

PHILOSOPHY IN PRACTICE

In applying his unique judicial philosophy, Scalia bucked some modern trends in constitutional interpretation. Chief among those theories was that of a “living” Constitution. The idea is that the document’s meaning changes from age to age to accommodate the evolving values of the American people.¹¹ This view of constitutional interpretation, which is shared to some extent by nearly all liberal legal scholars, gives judges tremendous power. After all, it is the judge who gets to decide which rights and responsibilities are valued by the public and which ones can be discarded. The obvious danger in such an approach is that the rule of law becomes rule by lawyers.

With bracing political incorrectness, Scalia said he likes his Constitution “dead.”¹² He argued that only a fixed and enduring charter could keep judges from reading new fads into the Constitution and less popular mandates out. He pointed to the death penalty, ironically, as a good example of the dangers of a “living” Constitution.¹³ Although the text of the Constitution specifically contemplates capital punishment, no fewer than four members of the Supreme Court during Scalia’s tenure asserted it was unconstitutional in all situations (see chapter seven). In their view, government-administered execution is no longer in synch with “evolving standards of decency.” Still other judges have limited states’ use of capital punishment against certain classes of convicted criminals after deciding, in their view, that it is now “cruel and unusual.”

As breezily as advocates of a “living” Constitution write the death penalty out of the Constitution, they also read new rights into the nation’s charter. Whether one believes same-sex marriage should or should not be recognized, neither the federal government nor any of the states thought it a constitutional right for the 135 years following ratification of the Fourteenth Amendment. States could allow it, states could deny it; it was their choice. No one thought it a federal constitutional matter because same-sex marriage was not protected by an explicit provision of the Constitution or by long-standing tradition. Consequently, the voters of each state were free to choose.

In 2015, however, this question was removed from democratic debate when, in Scalia’s words, a majority of the Supreme Court, in Obergefell v. Hodges, “discovered in the Fourteenth Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since.” The living Constitution apparently “matured,” and a new right to same-sex marriage emerged that could not be limited by the states.

For textualists like Scalia, the results should not change unless the law, that is, the text, changes. Thus, neither same-sex marriage nor any other favored activity can become a constitutional right without passage of a constitutional amendment. But as Scalia wrote, for the advocates of the “living” Constitution every issue is open to new and changing interpretations.¹⁴

Though not to the degree it conflicts with the living Constitution theory, Scalia’s approach also differed from a couple of modes of interpretation that were fashionable in conservative legal camps before he joined the High Court. While nearly all judicial conservatives agreed that the text should control, they diverged over how to interpret ambiguous text or how to apply it to unforeseen circumstances. Some judicial conservatives suggested the proper interpretation can be discerned by examining the “original intent” of the Framers. They searched the historical record in an attempt to figure out what James Madison or another drafter of the Constitution intended a particular provision—the Establishment Clause, for example—to accomplish. But this mode of interpretation suffered from its reliance on something that was often unknowable. To continue the example, if a search of the historical record revealed that James Madison intended the Establishment Clause to prevent only the declaration of a national religion, while every other Framer who supported its adoption intended the clause to prohibit any manifestation of government support for religion generally, whose intent should be determinative?

For this reason, among others, Scalia did not find intent authoritative. Instead, he urged judges to search for “original meaning,” which he defined as the original understanding of the text at the time it was drafted and ratified. This theory of interpretation is known as “originalism,” and it is distinct from “original intent.” Scalia said an originalist would look to many of the same historical sources that a proponent of original intent does—for example, the record of debates regarding the Constitution’s ratification and the writings of the Framers. Scalia used these sources not to determine the drafters’ intent but to gain insight into what the most informed people of the time understood the words of the Constitution to mean.

Scalia’s reliance on context when interpreting the text of the Constitution also distinguished him from those judicial conservatives, known as “strict constructionists,” who believed all words should be interpreted narrowly....