Wednesday, September 14, 2016

Justice Scalia 1 and Justice Scalia 2: A Modest Proposal

By Eric Segall

Jack Balkin of Yale Law School recently posted an essay about Justice Scalia's legacy which sets forth four criteria for ascertaining what a Justice's long term reputation is likely to be. Balkin argued we should look at 1) how useful the Justice is likely to be to future generations; 2) Is the Justice central to the political regime in which he lived; 3) Did the Justice take positions that are likely to end up on the "right side of history"; and 4) Did the Justice have promoters and "acolytes" willing to strongly defend his positions.

I think these criteria are fine for the task at hand, and so does my friend Ilya Somin, who responded to Balkin with his own post on the Volokh Conspiracy. Like any good balancing test, we don't really know how these criteria will play out in the future, and neither Balkin nor Somin takes a strong position on what they mean for Scalia's long-term reputation. But, and it is a big but, both men in making their arguments accept that part of Scalia's legacy, in Balkin's words, amounts to "methodological commitments to originalism or textualism", and in Somin's words, that Scalia was a "leading champion of originalism." Before I make my main point, I must note that neither Balkin nor Somin thinks Scalia's alleged commitments to originalism or textualism are as important to his legacy as the results he advocated, and I whole-heartedly agree.

If constitutional law professors are going to write about Scalia's originalism and/or textualism, they should also mention that when it comes to his votes, he was neither. I have made these arguments before in detail here and elsewhere, so won't repeat my analysis. Suffice it to say that no reasonable person can look at Scalia's votes in affirmative action, takings, 11th Amendment, standing, first amendment, criminal procedure, and commandeering cases, among others, and argue that he voted as an originalist or textualist.  He voted his values writ large, like every other Justice.

One thing Scalia did do was talk the talk of originalism and textualism in his writings, his dissents, and his public speaking engagements. And, he did that very well. So, here is my proposal. From now on, I hope academics will refer to "Scalia 1" and "Scalia 2."  Scalia 1 was the witty academic, fun public speaker, and caustic dissenter who made detailed and interesting arguments in favor of judges leaving elected officials alone unless they violated the clear text or original meaning of the Constitution. Scalia 2 was the judge who voted to overturn the acts of those very same officials all the time through huge swaths of constitutional law even though neither the clear text nor the original meaning supported those decisions.

Whatever Scalia's legacy ends up being, if we don't keep the two Scalias straight, we are not doing justice to the actual man.