Wednesday, December 09, 2020

Justice Scalia's Legacy as Irony: Reviewing Ed Purcell's Antonin Scalia and American Constitutionalism

 By Eric Segall

"The most fundamental significance of Scalia's career and jurisprudence lies in the way and extent to which they illustrated the changing, dynamic, and inherently goal-and value based nature of American constitutionalism itself, its truly living nature."

Justice Scalia used to tour the United States arguing that the "Constitution is Dead, Dead, Dead." He detested what he saw as the judicial lawlessness of the Warren/Burger Court's eras and he claimed to follow a different path devoted to the study of text and history, not the imposition of value judgments by a "committee of nine lawyers." 

Yet, when Scalia's thirty years of jurisprudence are examined carefully without the trappings of the late Justices' barbs, quips, and talking points, it turns out, as Professor Ed Purcell shows in his new book, "Antonin Scalia and American Constitutionalism," that Scalia's legacy demonstrates that he could no more avoid living constitutionalism than any other Justice. For all his unyielding rhetoric about originalism as the only true method of constitutional interpretation, Scalia's career shows that pluralistic decision-making was the true hallmark of his judicial method.

This is not news to most academics who have studied Scalia, but Purcell's book is a wonderfully comprehensive and devastating critique of Scalia the Justice. In time, I hope this book play a major role in dispelling the myths surrounding Justice Scalia so that we can stop pretending this man was a principled or even honest Supreme Court Justice.

Purcell makes it clear at the start that he is not writing a biography of Antonin Scalia the man. Rather, this book takes seriously Scalia's constitutional law and statutory interpretation jurisprudence and examines that case law with a probing, smart, microscope revealing its too-many-to-count flaws and inconsistencies. Scalia the man is only relevant to how his personality and upbringing obviously affected his decision making. Despite Scalia's protestations to the contrary, his Catholic, rule-based upbringing along with his love for hunting and all things guns, as well as his penchant for the singular authority of a unitary executive, all deeply affected his Supreme Court opinions. Values, not text or history, are they keys that unlock Scalia's judicial career.

Early in the book, Purcell says the following about Scalia (p.49):

Scalia believed wholeheartedly in the death penalty, market economics, limited government, the centrality of religion, the right to possess firearms, and a broad set of values he considered 'traditional.' He was adamantly opposed to abortion, gay rights, affirmative action, and a right to assisted suicide. In his mind two truths were beyond question: His position on each of those issues was morally right, and on each of those issues the Constitution was either fully consistent with his moral position or, at a minimum, failed absolutely to support those who disagreed with him.

The remainder of this wonderful book is a step-by-step dissection of Scalia's opinions, showing how the Justice manipulated or ignored text and history to reach the policy results he thought best. One of the most powerful sections of the book involves Scalia on two consecutive days in 2013 lambasting his liberal colleagues (and Justice Kennedy) for overturning the Federal Defense of of Marriage Act on the grounds, among others, that the case "was about the power of the people to govern themselves ... we have no power under the Constitution to invalidate this democratically adopted legislation," even though the day before he joined the other four conservatives to strike down a key section of the Voting Rights Act, which was enacted by a unanimous Senate, overwhelming support in the House, and signed by a Republican President. Democracy for thee but not for me.

Purcell shows with laser-like precision that Scalia would look to text and history when it supported his preferred policy positions but would abandon any such search when it didn't. Scalia's total disregard of the Fourteenth Amendment's original meaning in affirmative action cases is well-documented but what is less known is that in a 1979 article Scalia attacked affirmative action, in Purcell's words, "vigorously and across the board, charging that racial 'entitlement' of any kind evoked 'Nazi Germany.'" Scalia wrote that "I am, in short ... opposed to racial affirmative action for reasons of both principle and practicality." 

During his confirmation hearing, however, Scalia said that his views were just "policy views [that] will not inform my decisions from the Supreme Court." Of course, Scalia voted to strike down every affirmative action law, state and federal, he ever saw based on a non-textual, anti-historical judge-invented principle of complete color-blindness. So much for text and history.

Purcell shows how Scalia completely jettisoned originalist analysis in most free speech cases, how the Constitution's silence on the dormant commerce clause led Scalia to advocate for the dismantling of that corner of the Court's jurisprudence but the Constitution's silence on lawsuits against states by citizens of other states did not stop Scalia from adopting a non-textual rule of sovereign immunity despite much disagreement about the historical basis for such a judge-created rule. Sometimes text mattered a lot, sometimes not at all, and Scalia never tried to harmonize these inconsistencies.

Many defenders of Justice Scalia claim that his occasional siding with criminal defendants showed that Scalia would take the Constitution wherever his originalism led, but Purcell points to an academic study of Scalia's Fourth Amendment jurisprudence that showed he voted originalist in only 18% of Fourth Amendment cases. Whatever drove Scalia to at times issue opinions friendly to criminal defendants, it was not originalism but other values, most likely Scalia's penchant for clear rules in place of balancing tests.

Purcell leaves no hypocritical originalist stone unturned. His chapters on District of Columbia v. Heller and Bush v. Gore set forth devastating critiques of both opinions and show how neither text nor history supported either decision while both results were consistent with and furthered Scalia's personal penchants for guns and the Republican Party. In fact, one of the most important animating features of Scalia's opinions over three decades was how, in Purcell's words (p.286), Scalia led "a campaign of constitutional politics. In his case it was a campaign that would not return the United States to the views and values of the founding generation but would move them toward the views and values of the post-Reagan Republican coalition." Scalia's jurisprudence was much more 1980's conservative America than 1789 or 1868 America.

Purcell's final chapter is the most poignant in the book because it shows how Scalia's inability to apply his preferred interpretative methods of textualism and originalism with even minimal coherence or consistency reflects American constitutionalism in a way that Scalia would have strongly denied. The reality is that the "fundamental jurisprudential problem of American constitutionalism [lies] in the fact that the Constitution [is] in large areas indeterminate, the nation's constitutional history was the history of Americans defining and redefining themselves over time." (p.283)

Scalia, despite his protests, was a living constitutionalist throughout his career defining, his Constitution in line with his policy goals. His preferences for gun rights, strong free speech protections even for conduct, the unitary executive, ultra-formalist rules for separation of powers cases, non-textual limits on Congress's legislative powers, affirmative action, takings, standing, and numerous other hotly contested constitutional questions were all informed much more by Scalia's personal views, values, politics and experiences than the Constitution's text or original meaning. Purcell's book covers all of these topics and many more but they all add up to the same conclusion: Justice Scalia, like most (maybe all) Supreme Court Justices, was a convenient textualist and originalist, nothing more and nothing less. 

If all of this is true, how did Scalia so successfully convince not only the American public but much of  academia that he was a true originalist who just followed but didn't make the law? The truth is that Scalia was a great salesman. He was witty, acerbic, a great writer, and a warm and friendly person with a captivating smile. He also knew politics. In one of Purcell's best paragraphs, he says the following (p.294):

[Scalia] was far more openly and overtly political than any of his predecessors. A good number of those predecessors had continued their political involvements in varying ways and degrees while on the Court, but none had pushed their political and partisan views into the public arena as freely, continuously, and emphatically as Scalia did. His countless writings, public speeches, and media appearances commonly lent support to the agenda of the political right, and together with his much heralded public work on behalf of the Federalist Society—the Republican Party’s acknowledged judicial and administrative employment agency—they made his personal political and social allegiances vividly apparent.

Purcell ends this fabulous book by noting that the most enduring part of Scalia's legacy is, or at least should be, the irony that "his career demonstrated the dynamic nature of American constitutionalism, the very 'living' constitutionalism that he condemned so vigorously." (p.293). Just so. Hopefully, someday the myth of Scalia the Originalist will evaporate and, if it does, Purcell's book will be an important reason why.

7 comments:

Joe said...

Values will be involved in judging and choices will be made. One must be honest and a bit humble about the whole thing. That is the problem here really though me personally I also think he was wrong on the merits a bit too often.

The author of the book also wrote "Originalism, Federalism, and the American Constitutional Enterprise: A Historical Inquiry," which also sounds promising.

stephenmiller said...

Not mentioned here is that “originalism” has become a fig leaf for the most irresponsible conservative jurisprudence, infecting vast swaths of the courts. Scalia’s con job was apparent but retailed by academics and journalists who sold the sizzle.

AndyM said...

Scalia was a master propagandist. He was a smart strategist and even "fun" when he appeared in public.

His wannabe successors are anything but. Stiff, boring and surely awful to know. I can't help but think that they would all be incapable of elevating Originalism as Scalia did.

Unknown said...



AndyM said...

"Gotta invite Gorsuch to our party! Man, we don't agree with him, but what a livewire!" Said no one ever

Joe said...

He might not be the life of the party, but listening to him, Gorsuch seems to be having fun. Kavanaugh and Alito are grumpy. Thomas off the court has signs of having fun (maybe while driving around in his RV) and joking with Breyer when he still was sitting on an actual bench. Roberts has a sense of humor. Barrett is new, but seems to be starting the ball running. Might not be a livewire though.

Bob Moss said...

I've been saying for years that those who believe in the rule of law have to stop issuing wimpy platitudes about these Injustices having certain judicial philosophies and so on, and call them out for what they are: liars. And I mean liars. Their favorite activity is misstating the contents of precedents. It's not easy to do something about dishonest judges, but the first step is to change the the conversation.