Where Did Nino Go?

The late Justice Antonin Scalia looms large over today's Supreme Court.  His lively prose and attention to interpretive methodology helped transform the Court and made him the leader of American conservative legal thought.  It should be no surprise, then, that today's conservative Justices invoke Justice Scalia, celebrating his contributions and invoking his methodologies (textualism in statutory interpretation, originalism in constitutional interpretation).  In conservative legal circles, Justice Scalia is not just an icon; he is the icon.

And yet, given his iconic status, today's conservative Justices follow Justice Scalia less than one might expect.  Methodologically, the Court today seems to depart from Scalia's stated preferences.  In statutory cases, they depart from statutory texts when it suits them.  The current Court's most important statutory-interpretation innovation is the "new" major questions doctrine, which often casts aside statutory text to rein in administrative power. 

In constitutional cases, several of today's conservatives claim to embrace originalism, but in cases like Dobbs v. Jackson Women's Health, Kennedy v. Bremeton School District, and New York State Rifle & Pistol Association v. Bruen, they instead alight upon a "history and tradition" analysis.  While that approach's historical concerns can overlap somewhat with originalism, it decenters original public meaning, which Justice Scalia favored (though he admitted to being "faint-hearted" about it).  History and tradition also seems to invite wider ranging historical inquiry than originalism and plausibly play multiple roles in elucidating constitutional meaning.  The move to "history and tradition," then, reflects a methodological shift away from originalism. 

Admittedly, Justice Scalia himself sometimes played fast and loose with his own methodological preferences.  Nevertheless, though he was less of a methodological purist and formalist than he often claimed, he cared about methodology.  Like most (possibly all) judges, he was not perfectly consistent, but he thought deeply about interpretive methodologies.  In particular, his contributions to statutory interpretation reshaped the field and will likely resonate for generations.  Today's conservative Justices, by contrast, seem more methodologically adrift.  While Scalia likely would have been sympathetic to the outcomes of many recent cases, it's not clear he would have thought too highly of the Court's opinions.  

Substantively, today's conservatives are also pushing against Justice Scalia's stated preferences in some important areas.  (I acknowledge below that Scalia's own ideas changed late in his life.)  In the administrative law sphere, for example, many of today's conservatives seem to hold positions contrary to Scalia's.  Justice Scalia wrote Whitman v. American Trucking Associations, Inc., which applied the "intelligible principles" standard deferentially to uphold a Congressional delegation to the EPA.  The opinion is so deferential that Erwin Chemerinsky's Constitutional Law treatise concludes, "Descriptively ... a successful challenge to a federal law as an impermissible delegation of legislative power seems unlikely."  Nevertheless, led by Justice Gorsuch, several of today's conservatives seem interested in reviving the non-delegation doctrine.  

Likewise, for most of his career, Justice Scalia was a vigorous defender of Chevron deference, which directs courts to defer to agencies' reasonable interpretations of ambiguous statutes they administer.  Today's Court, by contrast, frequently ignores Chevron.  Indeed, this term it will hear Loper Bright Enterprises v. Raimondo to determine whether it should overrule Chevron altogether. 

Justice Scalia also authored Auer v. Robbins, which held that courts ordinarily should defer to administrative agencies' interpretations of their own regulations.  In Kisor v. Wilkie, Justice Gorsuch, joined in substantial part by Justices Thomas, Alito, and Kavanaugh, wrote separately to lament the Court's failure "to say goodbye to Auer."

It's not just administrative law; today's conservative Justices depart from Scalia in other areas as well.  One of Justice Scalia's most famous majority opinions was Employment Division v. Smith, which held that the Free Exercise Clause does not relieve individuals of an obligation to comply with neutral, generally applicable laws that incidentally burden their religious conduct.  Today's Court has not yet overruled Smith, but it has narrowed the instances in which Smith can apply.  For example, Tandon v. Newsom stated that a government regulation is not generally applicable if it treats "any comparable secular activity more favorably than religious exercise."  While Tandon technically does not abandon Smith, it does make it more difficult for the government to find safe harbor within Smith's rational basis review because any exception to a policy triggers strict scrutiny.  Moreover, several of the conservative Justices in Fulton v. City of Philadelphia expressed interest in revisiting Smith altogether.  

It's hard to know for certain, but there are other areas, too, where we might speculate that Scalia and today's conservative Justices might have parted ways.  I suspect, for instance, that several conservatives today would refuse to join Justice Scalia's opinion in Gonzales v. Raich, which relied on the Necessary and Proper Clause to conclude that Congress can prohibit the cultivation and possession of marijuana that has never been bought or sold, or crossed state lines.  Justice Thomas rejected Scalia's analysis then, and it seems likely that others today would, too.  Likewise, Justices Thomas and Alito dissented from Scalia's opinion in Arizona v. Inter Tribal Council of Arizona, which emphasized Congress's sweeping authority to regulate federal elections under Article I's Election Clause.  In all likelihood, additional conservatives on today's Court also would have broken from Scalia in that case.

I also tend to think that Justice Scalia would not have joined Justice Barrett's four-Justice Nance v. Ward dissent, which ignored the bright line between habeas and 42 U.S.C. sec. 1983 that Scalia himself had drawn in Heck v. Humphrey (and voted to reaffirm in cases like Nelson v. Campbell and Hill v. McDonough).  Perhaps I am wrong; Scalia was certainly no friend to the capital inmate plaintiff and Nance presented a slight twist (was Section 1983 still the proper vehicle to bring a method-of-execution challenge if the alternative executive method proposed by the plaintiff would require the State to pass a new statute adopting such a method?).  But Justice Scalia also brought to the law a rigid, logical order, and he viewed habeas and Section 1983 as serving different purposes in prison litigation.  Habeas permits you to challenge the fact or duration of your sentence.  Section 1983 allows you to challenge the way in which your sentence is carried out.  Given that Eighth Amendment lethal injection challenges seek to invalidate a proposed method of execution but not the underlying death sentence, they fall squarely within Section 1983's ambit (as the Court reaffirmed in Nance).  My guess is that Scalia, the unbending proceduralist, would have agreed and followed the Heck-Nelson-Hill line of cases.  (Had he hesitated, he might have been comforted knowing that Mr. Nance was bound to lose his case anyway, given the district court's statute-of-limitations ruling.)  

Of course, Nance came out the same way I am guessing Scalia would have voted.  However, whereas Nance was a 5-4 decision, Heck, Nelson, and Hill were all unanimous.  I suspect Justice Scalia would not have approved of the four Nance dissenters' efforts to muddy previously clear procedural waters. 

A few caveats bear mention.  First, while today's conservative Justices' departures from Scalia's substantive and methodological preferences are significant, they also ought not be overstated.  Justice Scalia surely would have enthusiastically joined many outcomes supported by the current Court, including Dobbs, Bruen, Bremerton School District, Students for Fair Admission v. Harvard, and others.  The differences (whether actual or speculative) between Justice Scalia and the current conservatives, then, are interesting, but they are likely the exception, not the rule.  

Second, the current conservative Justices don't always agree with each other.  Whereas Justices Thomas, Alito, Gorsuch, and (possibly) Barrett might be deemed ideological, movement conservatives, Chief Justice Roberts and Justice Kavanaugh tend to be more incremental, perhaps especially in cases involving administrative power.  (Of course, these labels have descriptive weight, except when they don't.  Justice Gorsuch, for instance, famously votes with the progressives in Indian law cases.)  That said, the Court has unquestionably moved to the right in recent years.  To the extent, the conservative Justices driving those changes often invoke Justice Scalia, it is worth asking how much of their agenda he actually would have embraced. 

Third, and most interestingly, Justice Scalia's own preferences were not static.  Especially late in his career, he seemed to change direction on several important issues.  Scalia wrote Auer, but he later regretted that decision.  Likewise, observers have noted that he may have changed his mind on Chevron as well.  And Justice Scalia's own position in NFIB v. Sebelius seems, at best, in tension with his Raich concurrence.  To that extent, "late Scalia" may have been a somewhat different Justice than "early" and "middle" Scalia.  (In addition to those substantive changes, my gut-feeling, non-empirical impression was that "late Scalia" was a bit crankier and a tad less formidable than earlier Scalia.)   

If I am correct that today's Court has departed from Justice Scalia (at least, from early and middle Scalia), the question is why.  My hypothesis is that the conservative changes at the Court track changes within the conservative legal movement, which, in turn, follow broader political changes within American conservatism.  

Take administrative law.  Why have the conservative Justices raised questions about core doctrines (like Chevron and the non-delegation doctrine) that lawyers took for granted for decades?  One possibility might be that doctrines that once seemed politically neutral now seem progressive-friendly.  Chevron was a unanimous decision by a Court dominated by Republican appointees.  Admittedly, the unanimity can be explained partially by the fact that it was an obscure case decided late in the Supreme Court term.  The unanimity, however, was also because the decision seemed politically neutral.  Because the decision required deference to agencies' interpretations of ambiguous statutes, it favored the party in the White House, which in 1984 was the Republicans. Indeed, Chevron upheld the Reagan administration's deregulatory agenda.

Gradually, though, the Republican Party moved further to the right, increasingly opposing most legislation (except tax cuts) and regulation.  In the eyes of more recent conservatives, administrative agencies were not so much tools to help the party in power govern more efficiently but progressive institutions that created policies that couldn't get through Congress.  And, of course, given heightened partisan gridlock, little can get through Congress anymore, so to neuter agencies is to neuter progressive policy making.  

In the decades since Chevron, then, right-wing political thought has grown increasingly hostile to the administrative state.  This growing hostility encouraged conservative lawyers to rethink their attitudes towards Chevron, the non-delegation doctrine, and other features of administrative law.  Chevron, in their eyes, was no longer a neutral deference principle but a boon to progressives.  To be sure, there has long been a "Constitution in exile" movement that lamented the growth of administrative power, but in recent decades, those ideas have moved from the fringe to the center of conservative political and (therefore?) legal thought.  

Somewhat similarly, Smith reflected Justice Scalia's concern that permitting religious exemptions would open the door to legal chaos.  In a pluralistic society, Scalia feared that if the Court let individuals exempt themselves from otherwise applicable laws because of religious objections, it "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind."  In Scalia's eyes, such a rule would undermine law and order.  

Today, however, many conservatives see religious exemptions again as a tool to escape otherwise burdensome progressive regulations.  There surely is terrific value in protecting the free exercise of religion, but religious freedom (whether invoked under the First Amendment or the Religious Freedom and Restoration Act) can also be used as a sword to attack liberal policies, such as public health measures, anti-discrimination laws, and health insurance requirements

Conservative legal thought, then, might have shifted to provide tools to aid the conservative political agenda.  To be sure, this is not all that is going on.  The Justices are smart and complicated people and likely have multiple motivations for their legal positions.  That said, law and political culture are inevitably intertwined, and it seems likely that political changes within the Republican Party help explain why several of the conservative Justices today depart from the preferences of their chosen icon.