Antonin Scalia: His Legacy

Justice Scalia spent three decades on the Supreme Court.  During his tenure many cases of great consequence were argued and decided.  Scalia was always part of the conservative bloc on the court, thus it is not surprising that he will be remembered differently depending on the politics of the observer.  This conclusion suggests a troubling consequence inevitable for any country that depends on an ancient constitution incapable of providing guidance on new issues as they emerge: justices will rule based on social, political, and religious leanings.  Scalia seemed to have been burdened by all three classes of bias.

It is of interest, and hopefully informative, to collect a few of the commentaries generated by Scalia’s recent passing in order to assess the divergence of viewpoints. 

Ross Douthat is a politically conservative writer (mildly so by today’s standards) who produces columns for the New York Times.  He is an admirer of Justice Scalia and his legal philosophy and expressed his thoughts in Antonin Scalia, Conservative Legal Giant. 

Douthat credits Scalia with bringing the concepts of originalism and textualism to the fore in the arena of constitutional interpretation.

“He was important because of his intellectual influence. There were and are many legal theories and schools of constitutional interpretation within the world of American conservatism. But Scalia’s combination of brilliance, eloquence and good timing — he was appointed to the court in 1986, a handful of years after the Federalist Society was founded, and with it the conservative legal movement as we know it — ensured that his ideas, originalism in constitutional law and textualism in statutory interpretation, would set the agenda for a serious judicial conservatism and define the worldview that any ‘living Constitution’ liberal needed to wrestle with in order to justify his own position.”

In Douthat’s opinion, Scalia’s ideas provided “rigor and integrity” to constitutional arguments that liberal justices with their perspectives could not match.

“….Scalia had a long record of putting originalist principle above a partisan conservatism. And this, too, set an example for his fellow conservatives: The fact that today the court’s right-leaning bloc has far more interesting internal disagreements than the often lock-step-voting liberal wing is itself a testament to the premium its leading intellectual light placed on philosophical rigor and integrity.”

Douthat also ascribes to Scalia purity when it comes to partisan thoughts and motives.

“This intellectual importance was compounded by the way he strained to be consistent, to rule based on principle rather than on his partisan biases — which made him stand out in an age when justices often seem as purely partisan as any other office holder.”

The article concludes with a repeat of the claim that Scalia was above political wrangling and personal bias as Douthat anticipates a nasty situation awaiting any nominee to replace him.

“The irony is that this kind of high-stakes collision of law and politics is precisely the thing that Scalia’s legal philosophy strained to curb and check and roll back, by promoting a more limited and humble vision of the Supreme Court’s role in our republic.”

Let us examine Scalia and his legal philosophy, and compare it to the liberal belief in a ‘living Constitution,” in the contentious area of abortion rights. 

Roe v. Wade was decided in 1974 with a decision that made abortion legal.  To fully understand what was happening at the time, let us recall the situation that led to the Supreme Court decision.  Katha Pollitt provides an assessment of the state of affairs with regard to abortion at the time of the decision in her book Pro: Reclaiming Abortion Rights. 

“Today, the real-life harms Roe was intended to rectify have receded from memory.  Few doctors remember the hospital wards filled with injured and infected women.  The coat-hanger symbol seems as exotic as the rack and thumbscrew, a relic waved by gray-haired ‘radical feminists’.”

Prior to Roe v. Wade, the contention by the factions that today we refer to as “pro-choice” and “pro-life” had been resolved in vastly different ways around the nation.  Abortion was legal in some locations and illegal in others, a situation that could be easily resolved by the wealthy, but left others helpless, depending on where they lived.  The disparity in laws produced economic and racial discrimination.

“The more exceptions there were to the criminalization of abortion, the more glaringly unfair and hypocritical the whole system was seen to be.  By the time Roe came to court, well-off savvy women could flock to New York or several other states where laws had been relaxed and get a safe, legal termination; poor women, trapped in states that banned abortion, bore the brunt of harm from illegal procedures.  There was a racial angle too: Not only did women of color, then as now, have far more abortions than whites in proportion to their numbers, they were much more likely to be injured or die in botched illegal procedures.  According to the Centers for Disease Control and Prevention, from 1972 to 1974, the mortality rate due to illegal abortion for nonwhite women was 12 times that for white women.  The injustice of a patchwork system, in which a simple medical procedure could leave a woman dead or injured based purely on where it took place, was obvious.”

The Supreme Court, the majority of the population, and most religious groups were in favor of relaxing the laws against abortion and decriminalizing it in many situations.

“If you assume the churches were united against abortion, think again: Beginning in 1967, the Clergy Consultation Service founded by the Reverend Howard R. Moody, a Baptist….helped thousands of women across the country find their way to safe illegal abortions.  In the years leading up to Roe, legalization of abortion under at least some circumstances was endorsed by the Union for Reform Judaism, the Southern Baptist Convention, the National Association of Evangelicals, the United Methodist Church, the Presbyterian Church USA, the Episcopal Church, and other mainstream denominations.”

“You would never know that Ayn Rand and Barry Goldwater were pro-choice, and that in 1967, the governor of California, Ronald Reagan, signed what was then the most liberal abortion law in the nation.”

Abortion is as old as history.  Whether for economic, medical, or personal reasons, women have been willing to risk their lives to attain one.  That is fact.  Women were dying in large numbers because there was no definitive ruling on the matter, and the majority of the people were in favor of addressing this problem.  The Constitution says nothing about abortion, so what is one to do?

Jeffrey Toobin provides a very concise description of how liberals and conservatives approached this issue in his book The Oath: The Obama White House and the Supreme Court.

“Starting in the 1960s, liberals on the Supreme Court and elsewhere developed a theory built around the idea of “enumerated rights.”  Even if a right was not specifically mentioned in the Constitution, the Court could draw on the implications of the explicit provisions of the Constitution, prior decisions, and the broader evolution of American society to expand the liberties of Americans.  Most famously (or notoriously) during this period, the Court recognized a constitutional right to privacy, which became the basis for protecting a woman’s right to choose abortion.”

The selection of privacy as the justification was considered the weakest of arguments in support of the abortion right.  Women justices seem to have a better idea of women’s issues than men.  When they had their chance, they produced better justifications, with women’s equality perhaps the favorite.  The concept of equal rights for women is also not found in the Constitution.

“On the Supreme Court, Antonin Scalia and Clarence Thomas had led the charge for what became known as ‘textualism,’ which said that if the Constitution did not explicitly create a right, it did not exist.  A close cousin to textualism was originalism, which asserted that the words of the Constitution must be interpreted as they were understood by the men who wrote and ratified it.  Under either textualism or originalism, there was no such thing as a right to privacy and, of course, no constitutional right to abortion.”

While it might appear that Scalia and friends had an approach laden with “rigor and integrity,” it was, in fact, a shield to hide behind as they proceeded to negate any Court precedent that they found inconvenient, and to create any “right” that was necessary to forward their agenda.  Corporations were not mentioned in the Constitution, but they managed to provide them the same rights as individuals and override Congressional legislation limiting their ability to spend their vast wealth influencing elections.  Somehow, the opinions and intentions of the men who wrote and ratified the Constitution always seemed to be the same as those of the Republican Party.

Toobin also tells the tale of Scalia’s forced admission that his originalist philosophy led to absurdities. 

Scalia was selected write the majority opinion on District of Columbia v. Heller, the decision that was supposed to finally decide on the meaning of the Second Amendment as to the right to bear arms.  The wording of this amendment is simple.

“A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.”

For over 200 years this was interpreted as associating the right to bear arms with militia duty, along with plenty of “originalist” documentation to support that assumption.  However, the agenda required that that perception be changed and Scalia had to justify that change within the constraints of originalism.  This he labored mightily to do, but there was one problem he could not dodge: our founding fathers associated the right to bear arms with the desire for them to be used in military activities.

“In the uniform militia Act of 1792, Congress compelled militia members to purchase muskets, bayonets, and other weapons that were needed in military combat.  The true originalist would, presumably, assert that the Constitution protected an individual right to possess military weapons.”

Even Scalia could not deal with a population set free to own machine guns, bazookas, flamethrowers, and other such things.  He limited the Court ruling to handguns.  The decision to rule that it was only handguns that the District of Columbia could not prohibit was a compromise between the desired agenda and the realities of modern life.  It left no one happy; the gun-rights activists were particularly disturbed.  The focus on handguns clearly had nothing to do with anything related to the intentions of the framers of the Constitution.

“It was clear….that for all its rhetoric and historical citations, Scalia’s decision had little to do with the original meaning of the Second Amendment.  It was an improvisation designed to reach a policy goal, which was, not coincidentally, one of the top priorities of the modern Republican Party.”

“Notwithstanding his denials, Scalia had demonstrated precisely how the Constitution is not dead at all—but a vibrant living thing.  In other words, there was less to the originalism revolution than met the eye.  Originalism was no more principled or honorable than any other way of interpreting the Constitution.  It was, as Heller demonstrated, just another way for justices to achieve their political goals.”

Scalia is best known for his social views such as his antiabortion stance and his revulsion towards homosexuality.  James Surowiecki penned a note in The New Yorker, Courting Business, to remind us that his most lasting damage to society may arise from his pro-business and anti-consumer decisions.

“Yet Scalia’s death will have only a limited impact on the culture wars, because regarding many social issues he was already in the minority on the Court. But there is one area where the question of his replacement has huge consequences: business. As a member of the Court’s conservative majority, Scalia played a key role in moving American law in a more corporate-friendly direction.”

“In Citizens United, it famously ruled that corporations had free-speech rights and that many restrictions on corporate spending in elections were therefore unconstitutional. It has overturned long-standing antitrust restrictions. It has limited liability for corporate fraud and made it harder for workers to successfully sue for age and gender discrimination. It has made suing businesses and governments more difficult, especially in class-action suits.”

Scalia wrote the majority opinion in a few cases that received little publicity but have far-reaching consequences.  The N.Y.U. law professor Arthur R. Miller and Brian Fitzpatrick a Vanderbilt law professor are quoted.

“In these cases, both of which turned on an interpretation of a once obscure 1925 law, the Court ruled that companies could require customers to give up their right to sue in open court, with disputes to be settled by a private arbitrator instead. ‘These cases don’t get people’s attention the way things like abortion and same-sex marriage do,’ Miller said. But, if the decisions stand, Fitzpatrick argues, ‘they have the potential to literally wipe out the class-action lawsuit’.”

 And why is access to class-actions so important?

“….in an era when regulators are routinely falling down on the job, lawsuits play a crucial role in deterring corporate misbehavior. Miller calls them a ‘private enforcement of public policies.’ And when it comes to big corporations class-action suits are often the only kind that make any economic sense. If every individual defrauded by a company loses fifty dollars, the collective harm can be immense, but it’s not worthwhile for any single victim or lawyer to bother. Fitzpatrick says that obstacles to filing class-action lawsuits make it more likely that ‘companies will not be held accountable for hurting people, for cheating people, for defrauding people, for discriminating against people.’ In that sense, the battle over access to the courtroom is, as Miller puts it, ‘a kind of class conflict between ordinary individuals and corporate power.’ And in that conflict there’s no question which side Scalia was on.”

Surowiecki points out that consequences have already been observed from Scalia’s disappearance from the Court.

“….just last week, Dow Chemical settled a major class-action suit, saying that Scalia’s death increased the chances of ‘unfavorable outcomes for business’.”

And there is his final note on Scalia’s passing.

“It’s unlikely that Scalia will be replaced anytime soon. But let’s hope that, when a successor is finally appointed, it is someone willing to give ordinary citizens the day in court that Scalia worked so hard to deny them.”

Jeffrey Toobin also contributed a piece in The New Yorker commenting on Scalia’s passing: Looking Back.  Here are a few relevant comments.

“Antonin Scalia, who died this month, after nearly three decades on the Supreme Court, devoted his professional life to making the United States a less fair, less tolerant, and less admirable democracy. Fortunately, he mostly failed. Belligerent with his colleagues, dismissive of his critics, nostalgic for a world where outsiders knew their place and stayed there, Scalia represents a perfect model for everything that President Obama should avoid in a successor.”

“The great Justices of the Supreme Court have always looked forward; their words both anticipated and helped shape the nation that the United States was becoming. Chief Justice John Marshall read the new Constitution to allow for a vibrant and progressive federal government. Louis Brandeis understood the need for that government to regulate an industrializing economy. Earl Warren saw that segregation was poison in the modern world. Scalia, in contrast, looked backward.”

Scalia’s social views were formed from a 1950s Catholic upbringing, while his politics was unabashedly Republican and pro-business.

“Scalia described himself as an advocate of judicial restraint, who believed that the courts should defer to the democratically elected branches of government. In reality, he lunged at opportunities to overrule the work of Presidents and of legislators, especially Democrats. Scalia helped gut the Voting Rights Act, overturn McCain-Feingold and other campaign-finance rules, and, in his last official act, block President Obama’s climate-change regulations. Scalia’s reputation, like the Supreme Court’s, is also stained by his role in the majority in Bush v. Gore. His oft-repeated advice to critics of the decision was ‘Get over it’.”

In the end, his beloved originalism was becoming a joke.

“Even Scalia’s ideological allies recognized the folly of trying to divine the ‘intent’ of the authors of the Constitution concerning questions that those bewigged worthies could never have anticipated. During the oral argument of a challenge to a California law that required, among other things, warning labels on violent video games, Justice Samuel Alito interrupted Scalia’s harangue of a lawyer by quipping, ‘I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them’?”

Toobin provides this epitaph.

“For all that Presidents shape the Court, the Justices rarely stray too far from public opinion. And, on the social issues where the Court has the final word, the real problem for Scalia’s heirs is that they are out of step with the rest of the nation. The public wants diversity, not intolerance; more marriages and fewer executions; less money in politics, not more. Justice Scalia’s views—passionately felt and pungently expressed though they were—now seem like so many boats against the current, borne back ceaselessly into the past.”

The nation should remember Justice Scalia for who he was and what he did.