Supreme Irony: GOP Talking Points and Scalia's True Legacy

By Eric Segall

Donald Trump is running one of the most bizarre political campaigns in American history. His positions on Mexican immigration, Muslims, and NATO are outside even the usual GOP mainstream. But there is one area of public policy where Trump has closely hewed to the traditional Republican line (at least until Tuesday when he suggested that maybe "Second Amendment people" could do something about Hillary if she gets to pick judges). Every four years, the GOP Presidential nominee utters worn and inaccurate clich├ęs about how important it is to vote for him so that he will appoint Supreme Court Justices who will “follow” not “make” the law and who will apply the original meaning of the United States Constitution instead of acting like “activist” judges. With the vacancy created by Justice Scalia’s death, and the advanced ages of Justices Ginsburg (83), Kennedy (80), and Breyer (77), the future of the Court is one of the most important issues at stake in the upcoming election.

Trump has expressly said that he will appoint Justices similar in philosophy to the late Justice Scalia, while the official GOP platform laments that “only a Republican President will appoint judges who respect the rule of law expressed within the Constitution… as did the late Justice Scalia.” Senator Ted Cruz, a former Supreme Court clerk, has justified the Senate’s stonewalling of Merrick Garland on the basis that he wants a Supreme Court Justice who “adheres to the unchanging text, history and structure of the Constitution… [rather than] a justice who thinks the Constitution should evolve with the personal beliefs of unelected lawyers.”

It is fair for Republicans to promise to appoint Justices who will vote for policies that further their interests. It is absurd, however, for Republicans to suggest, as they always do, that what that means is that their judges, and only their judges, will respect the text and history of the Constitution. Since both Donald Trump and the official GOP platform pay specific homage to Justice Scalia as the kind of Justice they would name, examining the late Justice’s actual voting record instead of fairy tales about his alleged text-and-history approach shows the falsity of the GOP talking points about our highest Court.

Justice Scalia did consistently vote against abortion and gay rights, often ranting that the Constitution is “dead, dead, dead” and arguing that judges shouldn’t make up rights that are not listed in the text of the Constitution. In a famous dissent in an important abortion case, Scalia said that “value judgments should be voted on [by the people] not dictated” by unelected judges. These cases, however, are aberrations. because Justice Scalia frequently made up rights and rules that aren’t mentioned anywhere in the Constitution and are often in direct conflict with the history of the Constitution.

For example, the Eleventh Amendment to the Constitution unambiguously provides that states cannot be sued without their consent by a “citizen of another state.” Justice Scalia enthusiastically accepted a line of cases twisting this text to invent a rule that states can’t be sued even by their own citizens. He endorsed this conclusion not just on stare decisis grounds but on the merits, and on the bizarre basis, one that might even embarrass a so-called “living constitutionalist,” that the Amendment’s clear text was more important for what it “reflected” than for what it “said.”

Justice Scalia also concocted a rule that even when Congress is acting within its power to regulate commerce among the states, or any other power expressly given it in the Constitution, Congress cannot require states to help implement otherwise valid federal law. This so-called “anti-commandeering” rule is nowhere in the Constitution and directly conflicts with clear statements in the Federalist Papers that the states that ratified the Constitution understood that Congress could use them to implement federal law. If we needed a draft in a hurry, the strange made-up nature of this rule could become apparent quite quickly.

Justice Scalia voted to strike down a key section of the Voting Rights Act in a decision in which Chief Justice Roberts said that, even when Congress acts pursuant to its authority under the Reconstruction Amendments, ratified in the wake of the demise of slavery and the Civil War, it cannot treat different states differently absent a very strong reason. This principle is nowhere in the text of the Constitution, and it is hard to imagine any rule being more inconsistent with the original meaning of the Civil War Amendments than Chief Justice Roberts’ completely fabricated “equal state sovereignty” rule, which the Court announced for the first time ever in 2013.

Justice Scalia did not limit his non-textual, non-historical judging to cases protecting states’ rights. His joining in a decision protecting flag burners from state prosecution, while obviously correct, cannot be justified solely under an originalist or textualist approach to the Constitution. Justice Scalia also consistently voted to prevent the states from deciding on their own to use limited racial criteria in their publicly funded schools and public employment programs to help minorities and other traditionally disadvantaged groups. He also did not allow states to enact meaningful campaign finance reform. None of the anti-state power rules Scalia embraced in these cases, or perhaps we should call them value judgments, can be gleaned from either the text or history of the Constitution, but they did interfere with state policies. Moreover, Scalia often proudly voted in favor of accused criminals in cases where, regardless of whether one approved or disapproved of the outcomes, the results favoring the defendants could not be justified simply on the basis of the vague texts of the Fourth, Fifth and Sixth Amendments or the history of those provisions.

The reality is that for over a quarter of a century Justice Scalia voted to strike down both state and federal laws or overturn the political decisions of both state and federal officials, on the basis of his own idiosyncratic personal ideology. Most of the time conservatives and Republicans liked those results (Bush v. Gore and the Voting Rights cases being the most famous examples), and occasionally they didn’t (the flag burning case and opinions protecting the rights of the accused), but the true basis of all those decisions was Scalia’s value judgments writ large, not any serious reliance on constitutional text, history, or other legal sources. So, if Donald Trump and the Republican Party are sincere about their pledge to appoint judges who take text and history seriously (though of course they aren’t), Justice Scalia is in fact a very bad role model for that approach to constitutional interpretation.