Justice Scalia and the Myth of the Originalist Judge

By Eric Segall

At midnight last night, Amazon began selling the Kindle version of a new book containing many of Justice Scalia's speeches. The late Justice was an excellent public speaker, and it speaks well of him that he was so willing to shares his views with the public. There can be no debate that he was a dedicated public servant who devoted his career to trying to improve our country. But, and his passing more than a year behind us should not stop us from recognizing this truth, he was not in any measure an originalist judge.
During Justice Scalia’s national speaking tours, he constantly lamented the living Constitution, and advocated for, what he repeatedly, called, the “Dead, Dead, Dead” Constitution. According to the Justice, “you would have to be an idiot” to think the Constitution is alive.

Scalia has said that my “Constitution is a very flexible one…there's nothing in there about abortion. It's up to the citizens. ... The same with the death penalty." To Scalia, “the only good Constitution is a dead Constitution.”

What Scalia meant by all of this “dead” and “alive” talk was that social and political change should some through the people and constitutional amendments, not through creative readings of text and history by nine unelected, lawyers. Scalia repeatedly pressed these arguments in his speeches to law students, college students, the media, his dissenting opinions, and the public at large.

There can be no denying how much of an impact Justice Scalia’s thirty-years on the Court has had on constitutional law, judicial politics, and how judges perceive and sell themselves. Bruce Allen Murphy said it best (and presciently) writing shortly after Scalia’s death: “From among the thousands of younger lawyers and conservative federalist society members who revere his judicial opinions, many books, and entertaining speeches, we might see his intellectual heirs rise through the judiciary in the years and decades ahead, with perhaps one or more being appointed to the Supreme Court.” This prediction, of course, given the Federalist Society’s direct role in choosing judicial nominees for President Trump, has more than come true.

There is one substantial problem with all of this. Justice Scalia did not vote like the Constitution was “dead, dead, dead,” and he never let text or history stop him from imposing his personal values on the rest of us during his tenure on the Court. As I've written before, Scalia’s voting patterns in areas as diverse as affirmative action, federalism, criminal procedure, jurisdiction, and free speech all betray his alleged judicial method.

Although Scalia occasionally broke with conservatives on issues involving defendants' rights and first amendment freedoms, his votes for thirty years reliably reflected those of the Republican Party. He supported (in the legal sense) gun rights, term limits, abortion restrictions, same-sex marriage bans, sodomy bans, affirmative action bans, class action limitations, consumer-hostile arbitration agreements, campaign finance restrictions, the death penalty for minors and the mentally ill, non-textual limitations granting states sovereign immunity from lawsuits and immunity from congressional commandeering, and the list goes on and on. In many of these areas, Scalia voted, usually along with four other conservatives, to strike down state and federal laws without a solid grounding in text or history.

Justice Scalia updated the Constitution all the time with non-textual principles he supported on purely policy grounds. This description of Justice Scalia by one commentator hits the mark:
The adulation by admirers of Justice Antonin Scalia over his alleged role as a conservative constitutional steward who applied neutral, nonpartisan principles, is pure myth…. Justice Scalia was, in fact, one of the most unabashedly partisan judges ever to sit on the Supreme Court. His manipulation of the constitution was brilliant, and maddening, mostly because he and his followers pretend otherwise…. Sometimes he glorified judicial restraint and vilified his colleagues for … expanding constitutional rights. Sometimes he was a clear example of judicial activism.
And here is law professor Paul Campos:
Scalia had no real fidelity to the legal principles he claimed were synonymous with a faithful interpretation of the law.  Over and over during Scalia’s three decades on the Supreme Court, if one of his cherished interpretive principles got in the way of his political preferences, that principle got thrown overboard in a New York minute…. Justice Scalia was only interested in originalism to the extent that it advanced his political preferences.
And one more using Scalia’s commerce clause votes to make the same point:
Scalia is neither a faint-hearted or stout-hearted originalist. He is a convenient originalist. He’s an originalist when it leads to the result he wants and he’s not an originalist when it doesn’t…. And he’s perfectly happy contradicting himself to reach the result he prefers. Just compare his ruling in Raich to his ruling in the challenge to the Affordable Care Act... In Raich he agreed that the interstate commerce clause gave Congress the power to regulate the growth of marijuana for personal use — an action that is neither interstate nor commerce — despite that being legal under state law. In the ACA case he argued that the interstate commerce clause did not give Congress the power to regulate the health insurance market, which is, by any definition, a matter of interstate commerce. Ironically, Scalia is exactly what he has for decades accused liberals of being, a results-oriented judge.
We should also not forget that even Professor Randy Barnett, one of our leading originalists, used the prestigious Taft Lecture at the University of Cincinnati Law School to lament "Justice Scalia’s infidelity to the original meaning of the Constitution," and to argue that "Justice Scalia is simply not an originalist."

So why do so many law professors and Court commentators pretend that Justice Scalia embodied the theory of originalism? It can’t be enough to justify the originalist label to talk about text and history but routinely distort or ignore those legal sources to implement your own values. Why was Scalia so effective in advocating for a theory of constitutional interpretation he did not personally implement? The answer may be that originalism generally is not really a theory of constitutional interpretation that judges can effectively use to decide cases but an aspiration, an article of faith, that tries to link judicial review, the rule of law, and, in our generation at least, conservative results. I’ll have much more to say about that thesis in the months to come.