The death of Antonin Scalia has precipitated an outpouring of praise for his warm personal relationships, good humor, and cultivated tastes; and for his legal ingenuity, acerbic dissents, and principled opinions. Muted is the criticism that he lacked the impartiality and the temperament of a Justice of the Supreme Court. Only a few whisper that he was a partisan driven to use his voice and his vote to achieve, not legal, but political, ends.
Scalia’s sharp tongue does not imply a sharp mind. On the contrary, it suggests that aggression superseded argument. His dissents, although sometimes witty, became more often and increasingly indecorous and insulting, and cheapened discourse on the highest court in the land. His lack of rhetorical restraint reflected his partisan commitments, particularly as the strain of losing votes on major cases took its toll. Indeed, Scalia became unable to read views or hear news deemed liberal, and made his sources of information highly selective and exclusively conservative.
This bias is most evident in the doctrine with which Scalia is famously associated: originalism. This doctrine, which he urged as a basis of Constitutional interpretation, holds that judges should be restricted to, and guided by, the meaning of its text as drafted or amended. The suggestion is that originalism, not reinterpretations of, or departures from, the Constitution, ensures fidelity to it.
The doctrine is a legal fiction about an interpretive approach theoretically and practically impossible. The Constitution is not self-interpreting. Some meanings of its words were disputed at the time, were ambiguous or vague, or have changed since written. How does an originalist pick one meaning and not another or make imprecise words precise? What does “life” mean (used only once, in Article III, Section 3)? What are the Eighth Amendment meanings of “cruel” and “unusual” in matters of punishment (then including flogging, branding, mutilation)? Scalia approved studying contemporary texts to ascertain “originalist” meanings but disapproved studying legislative histories to ascertain the meanings of enacted laws. Consistency would rule out The Federalist Papers and The Anti-Federalist Papers or rule in such histories.
Scalia’s application of originalism reflects his biases against new laws to address new circumstances or situations. He invoked or applied it in dissents, not in concurrences. The most recent and egregious instance is his supporting the majority opinion in Citizens United, which declared financial contributions to political campaigns protected speech under the First Amendment. Yet neither the Constitution nor its Amendments connect, much less equate, money and speech (only the street adage “money talks” does so). His failure to invoke originalism in this case shows him less intent on interpreting law than serving moneyed interests. Scalia used originalism as a cover to conceal his political activism. He was at least as much a judicial activist as any other justice has ever been; he just deplored judicial activism in other justices.
Ultimately, originalism renders one branch of the government defined by the Constitution a needless appendage. If it creates a judiciary without the authority to interpret laws when their meaning or applicability is the basis of cases before it, then it creates a branch of government with no purpose. Court decisions in such cases always influence the meanings of the laws. If such decisions are called judicial lawmaking, so be it; American law has usually evolved incrementally in this way. Scalia fabulates otherwise: each word in the Constitution retains its first, fixed, and unchanging meaning and has only one correct interpretation. Such a Constitution never was, never was intended to be, and never can be. With Scalia’s passing, we can move beyond his legal myth-making and his pseudo-judicial posturing.