How Scalia Saved Originalism By Destroying It

by Michael Dorf

Linda Greenhouse writes in The New York Times that Justice Scalia's legacy has already begun to unravel, as the SCOTUS--hitherto reluctant to cite legislative history in its statutory interpretation cases--has embraced legislative history since his death.  Greenhouse goes on to say that this development undercuts Scalia's lasting impact overall. She contends that Scalia wrote few memorable  majority opinions, citing DC v. Heller as a notable exception. She acknowledges that Scalia's admirers say his main legacy was "his insistence on originalism in constitutional interpretation and textualism for statutes." Yet, Greenhouse says, "[d]ebates over how to read the Constitution preceded Antonin Scalia and will be with us forever," thereby implying that Scalia's contribution to constitutional interpretation is negligible. And with the "debate about legislative history" that Scalia sparked "a fading memory," Greenhouse concludes that Scalia's legacy as a whole is fading.

Greenhouse's assessment of Scalia's legacy in statutory cases is premature. Meanwhile, I think she misunderstands Scalia's views about constitutional interpretation and thus also misunderstands his legacy there.

Exhibit A for Greenhouse's claim about statutory interpretation is the recent decision in Digital Reality Trust, Inc. v. Somers, in which: Justice Ginsburg unapologetically relied extensively on a Senate Report; Justice Thomas, joined by Justices Alito and Gorsuch, concurred in the opinion only insofar as it did not rely on the Senate Report and disavowed the authority of that Report; and Justice Sotomayor, joined by Justice Breyer, responded to Justice Thomas with a defense of the utility of the Senate Report as an aide to discerning the statute's meaning.

Digital Reality Trust was 6-3 on the legislative history front. That suggests that, even if Justice Scalia were still serving on the Court, it also would have been 6-3 in that regard, as Justice Gorsuch seems to be no less committed to disavowing legislative history than Scalia was. Thus, it is not at all clear that the net lineup would have looked any different before Justice Scalia's death. If the temptation of a unanimous opinion rather than an opinion joined in full by only six justices was not enough to induce Justice Ginsburg to place her discussion of the Senate Report in a standalone section at the end of her opinion now, why would it have been a sufficient temptation three years ago?

Accordingly, count me as provisionally unpersuaded that much has changed on the Supreme Court with regard to legislative history. Let's turn now to constitutional interpretation.

Greenhouse attributes to Scalia the "view that the only legitimate basis for interpreting the Constitution is the original intent of its framers." That's inaccurate. Scalia successfully championed original meaning as against original intent.

In a well-publicized 1985 speech to the American Bar Association, President Reagan's Attorney General Edwin Meese argued for construing the Constitution to reflect the "original intention of those who framed" it.  That same year, in a speech at San Diego Law School, Judge Robert Bork argued that judicial review is only legitimate if "judges interpret the [Constitution] according to the intentions of those who drafted, proposed, and ratified its provisions and its various amendments." After the Senate failed to confirm Bork to the Supreme Court, he wrote a book, The Tempting of America, in which he referred to the "original understanding" of the Constitution, but he used that term more or less interchangeably with original intent.

Scalia was different. At a time when most originalists were still promoting original intent, Scalia was talking about original meaning, sometimes described as original public meaning. Scalia rejected legislative history in statutory interpretation because he thought the goal of statutory interpretation was not to uncover the intentions of the legislature but to discern the meaning of the words it enacted.  As he wrote for the Court in a 1998 case, "it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed."

Scalia's views about constitutional interpretation were cut from the same cloth. In 1997 he expressed a point he had been developing for more than a decade: that both statutory interpretation and constitutional interpretation should aim at the original public meaning of the words adopted rather than the subjective intentions and expectations of the law writers. Here is a notable passage from Scalia in the 1997 book A Matter of Interpretation:
It is curious that most of those who insist that the drafter's intent gives meaning to a statute reject the drafter's intent as the criterion for interpretation of the Constitution. I reject it for both. I will consult the writings of some men who happened to be delegates to the Constitutional Convention--Hamilton's and Madison's writings in The Federalist, for example. I do so, however, not because they were Framers and therefore their intent is authoritative and must be the law; but rather because their writings, like those of other intelligent and informed people of the time, display how the text of the Constitution was originally understood.
Greenhouse is right that debates about constitutional interpretation pre-dated and now post-date Scalia. But she is wrong about his position in that debate and thus fails to appreciate his profound impact on it. Although Scalia was not the only self-styled originalist to shift from original intent to original public meaning, he was one of the first and certainly the most prominent. And as a consequence of his influence, the vast majority of self-styled originalists now favor original public meaning. That is a major and lasting legacy.

By reorienting originalism in constitutional interpretation, Scalia thus saved originalism from the very sorts of critiques that he himself had leveled against intentionalism in statutory interpretation. But in saving originalism he also destroyed it, because once originalism was loosed from 18th century attitudes (or 19th century ones in the case of provisions like the 14th Amendment), judges and scholars could plausibly claim fidelity to original meaning while voting for outcomes that were inconsistent with the specific intentions and expectations of earlier generations. Once the likes of Ronald Dworkin and Jack Balkin were able to embrace originalism (as Dworkin did as early as 1996 in his book Freedom's Law and as Balkin did more recently), originalism ceased to be a distinctive position in debates over constitutional interpretation.

To be sure, Scalia's actual votes in constitutional cases do not appear to have been driven chiefly by his devotion to original public meaning. But neither were they driven by a devotion to original intent. Like just about all justices, Scalia's votes were best explained in nakedly ideological terms. He typically voted for conservative outcomes and then (sometimes) offered originalist rhetoric to rationalize those results.

That said, Greenhouse assumes (and I agree) that jurisprudential philosophy--whether in statutory or constitutional cases--can make some difference sometimes. And if any judge or justice would have a lasting influence due to his or her jurisprudential philosophy, it would be someone like Scalia, who regarded judicial philosophy as important.

When it comes to the particulars, though, Greenhouse is wrong. Scalia's legacy in constitutional interpretation is substantial. More than anyone, we have Scalia to thank for killing originalism.