Is Scalia for Real?

The death of Judge Antonin Scalia has occasioned much commentary and reminiscing. About a number of things there seems to be consensus: he was extremely smart; he was a ‘happy warrior’ who reveled in argument and intellectual combat; he wrote and spoke eloquently; he was funny; he was a good friend and mentor, even to those with whom he disagreed; he was a committed social and political conservative; and he claimed to make legal decisions in accord with a detailed theory of originalism designed to counter individual subjectivity.

The challenge I think Scalia poses is whether he was really able to contain this explosive mix of brilliance and partisanship in the tight confines of his judicial method. Our reasoning is always in danger of being corrupted by a range of biases: self-interest, past experiences, prejudice, unexamined suppositions, commitment to a cause, and so on. People seem to assume that the more intelligent you are, the more able you are to recognize and overcome these, but I don’t think this is true, or rarely so. What is more common is that great intelligence is used to confirm our bias and prejudice. We become better at marshaling arguments in our favor and demolishing those of our opponents. If we are exceptionally talented communicators, like Scalia, the danger only increases, because the praise we get for our skillful presentations confirms we are right.

A 2014 Vox article by Ezra Klein called ““How Politics Makes Us Stupid” makes this argument in detail, drawing on psychological research, such as experiments that ask people to estimate probabilities and do math problems; people who are perfectly objective at problem-solving begin to make ‘mistakes’—always in their favor–when the problem is given a political spin. The researcher, Dan Kahan, a Yale law professor, calls this Identity Protective Cognition, a fancy way of saying that people fight fiercely against evidence and arguments which, if accepted, would undermine their basic sense of who they are. In fact Kahan, when pressed by Klein about the potentially disastrous implications for our ability to be objective, cites Scalia as an example:

“At one point in our interview Kahan does stare over the abyss, if only for a moment. He recalls a dissent written by Supreme Court Justice Antonin Scalia in a case about overcrowding in California prisons. Scalia dismissed the evidentiary findings of a lower court as motivated by policy preferences. “I find it really demoralizing, but I think some people just view empirical evidence as a kind of device,” Kahan says.

But Scalia’s comments were perfectly predictable given everything Kahan had found. Scalia is a highly ideological, tremendously intelligent individual with a very strong attachment to conservative politics. He’s the kind of identity-protector who has publicly said he stopped subscribing to the Washington Post because he “just couldn’t handle it anymore,” and so he now cocoons himself in the more congenial pages of the Washington Times and the Wall Street Journal. Isn’t it the case, I asked Kahan, that everything he’s found would predict that Scalia would convince himself of whatever he needed to think to get to the answers he wanted?”

I will admit that this has been for some time my view of Scalia—a really smart guy with many attractive characteristics who unfortunately uses his big brain to validate a set of conservative policy preferences. Since he is on the Supreme Court and not blogging from his basement, this has done tremendous damage to our country on issues such as money in politics, gun control, and voting rights.

But could I be selling Scalia short? Maybe Scalia, knowing that he has strong views, is trying to counter his own prejudices. One piece of evidence is that Scalia had a practice of always having one liberal clerk on his staff (out of the standard four for Supreme Court justices) to offer a different point of view. Several of these liberal clerks have praised Scalia and said he challenged them and made them better thinkers and better lawyers. Lawrence Lessig, who clerked for Scalia in the early 90s, says that on a number of occasions, when Scalia’s ‘originalist’ method produced an outcome that went against Scalia’s conservative principles, Scalia would grit his teeth and go with originalism, saying “I don’t believe in an originalism of convenience.”

If this were consistently the case it would paint a different picture. Scalia knows he needs to hear contrarian voices, so he puts liberals on his staff. We know he was good friends with Ruth Bader Ginsburg, a strong liberal voice, and had many friends with different views. Perhaps more importantly, he adopts a method of interpretation designed to rein in his policy preferences by forcing him to follow the method wherever it leads—sometimes to a liberal, sometimes to a conservative conclusion.

There are two questions we have to answer to decide if Scalia was a clever partisan or an admirable jurist. First, how consistently did Scalia allow his method to deliver unwelcome (to him) conclusions? In particular, did he do it for big, important cases? It’s common to try and defuse criticism by acting against expectations on some small, secondary issues and then pointing to those decisions to prove lack of bias. If most of the consequential cases go the other way, it calls the impartiality into question.

The second question has to do with the nature of Scalia’s ‘originalism.’ Is the theory itself fair, or is it a method that puts a strong conservative thumb on the scales? Does choosing that approach guarantee conservative outcomes, not in every case, but for the most part? Even if it does, that might not prove Scalia is biased—perhaps he holds conservative views because that’s where the method leads him, not the other way around. But it would make me suspicious.

On the first question, whether Scalia overruled originalism or otherwise ignored evidence that went against his conservative ideals, the evidence is somewhat mixed. We saw above where Kahan (himself a law professor and Supreme Court clerk) claims Scalia ignored factual material. Lessig, the liberal clerk who praised Scalia for being principled, goes on to say that later on he told Scalia “that he had ruined me as a constitutional lawyer, because I was constantly predicting he’d choose originalism over conservatism. Yet too often, I said, when the decision came down, I felt like Linus waiting for the Great Pumpkin.” Lessig doesn’t specify which cases he has in mind, but the implication is that it was unwise to bet on Scalia adhering to originalism when it contravened his conservatism.

William B. Gould, a Stanford professor of law and former head of the National Labor Relations Board, claims Scalia was inconsistent on the rights of unions; in a 1991 decision, according to Gould, Scalia backed the right of public sector unions to require dues, while in the recent California case (before the Court and undecided at the time of Scalia’s death) he signaled his support for the argument that all public sector bargaining is ‘political’ and hence we cannot require people to support it. Gould says Scalia shifted because in 1991 there was no chance of success, while in 2016 the conservative majority saw the chance to cripple public sector unions, a core conservative policy goal.

Those who see Scalia as more principled point to his support for 4th and 6th amendment rights. Justice Ginsburg regularly pointed out in defending Scalia from charges of conservative bias that he had written a number of strong decisions on the 4th amendment protection against “unreasonable searches and seizures” (Kyllo vs. United States, 2001; United States vs. Jones, 2012), and defended the free speech right to burn the American flag.  While significant, I would argue that on the questions that matter most for political and social conservatives, like gun control, voting rights, equating money and speech, abortion, gay marriage, and so on–not to mention a decisive vote to make George Bush President in 2000–Scalia stayed true to his partisan roots.

The second question on the merits of originalism is harder to untangle. (Not being an expert on constitutional interpretation I will happily accept correction if this is off-base, but it’s the best I can do with what I’ve got). Originalism is defended by Scalia and his supporters, as stated in his 2012 book Reading Law, as necessary to “reject judicial speculation about both the drafters’ extra-textually derived purposes and the desirability of the fair reading’s anticipated consequences.” Otherwise constitutional interpretation becomes an assertion of preferences or a consequentialism that looks to results rather than rights. (The slippery slope is very steep in the arguments of originalists. I hypothesized that Scalia may have embraced originalism in part to check his own strong conservative views, but it is certainly true that originalism is largely designed to check the views of liberal believers in a ‘living Constitution.’)

Is originalism necessarily conservative? Defenders say no, or only incidentally. But critics argue that this is disingenuous. The most pointed argument that I know of comes from Judge Richard Posner, who wrote a scathing review of Reading Law in The New Republic called “The Incoherence of Antonin Scalia.”  Posner, also a conservative but with a much more libertarian bent than Scalia, says:

It is true, as Scalia and Garner [Scalia’s co-author Bryan Garner] say, that statutory text is not inherently liberal or inherently conservative; it can be either, depending on who wrote it. Their premise is correct, but their conclusion does not follow: text as such may be politically neutral, but textualism is conservative.

A legislature is thwarted when a judge refuses to apply its handiwork to an unforeseen situation that is encompassed by the statute’s aim but is not a good fit with its text. Ignoring the limitations of foresight, and also the fact that a statute is a collective product that often leaves many questions of interpretation to be answered by the courts because the legislators cannot agree on the answers, the textual originalist demands that the legislature think through myriad hypothetical scenarios and provide for all of them explicitly rather than rely on courts to be sensible. In this way, textualism hobbles legislation—and thereby tilts toward “small government” and away from “big government,” which in modern America is a conservative preference.

To Posner’s objection one could add that in a Groundhog-Day interpretive world where it is always the late 18th century, judges will remain tethered to views and values that do not reflect changes in the understanding of the basic rights articulated at the time. Few today would defend the prevalent views in 1787 about the status of women, or blacks, or Catholics, or the propertied. Originalists argue logically that if mores have changed, we should change the laws to match—but amending the Constitution is hard, and we count on judges to re-interpret it, without doing violence to our respect for the text.

Even Scalia acknowledged that he was sometimes a “faint hearted originalist,” because the implications of a consistent originalism are so troubling. Under originalism, for instance, Brown vs. Board of Education would have gone the other way. The Court would have been unable to step in to help the nation overcome its centuries-old logjam over race; and since the Court’s conservative shift in the 1970s, it has largely ceased to play that role.

This tendency is stronger under Scalia’s specific form of originalism. While I suspect most Americans assume that seeking the original meaning involves trying to understand what the authors of the Constitution and Bill of Rights intended, this is not what Scalia has in mind. He is four-square against any attempt to base interpretation on “original intent,” or on the legislative history, or what the legislators who wrote and debated the law said they meant. What matters is what the text meant to the average reader at the time. So if Madison or Franklin or others at the Constitutional Convention agreed to value slaves as 3/5ths of a man, but perhaps did so in the hope that in time American views of slavery would evolve—under the influence of an upbringing shaped by the new understanding of individual rights and popular government—this is irrelevant to Scalia. The law becomes operative when it is voted on and approved by the states, and what matters is what they think they are approving, which we can know by seeking out the common understanding of words and phrases. Scalian originalism is characterized by detailed historical research into dictionaries and thesauruses and finding how many times a particular phrase is used and in what context, at approximately the time and place when the Constitution and Bill of Rights or whatever law under discussion was approved.

This is why, in addition to its conservative bias, Posner criticizes originalism as epistemologically flawed:

The decisive objection to the quest for original meaning, even when the quest is conducted in good faith, is that judicial historiography rarely dispels ambiguity. Judges are not competent historians. Even real historiography is frequently indeterminate, as real historians acknowledge. To put to a judge a question that he cannot answer is to evoke “motivated thinking,” the form of cognitive delusion that consists of credulously accepting the evidence that supports a preconception and of peremptorily rejecting the evidence that contradicts it.

If you want to test this for yourself, try reading one of Scalia’s most famous decisions, his majority decision in Heller vs. District of Columbia on the 2nd Amendment, the case that sharply expanded the right to keep and bear arms.  I did, and came away convinced that Posner’s critique is on target.  Scalia takes the reader on a galloping tour through late 18th and early 19th century texts in an effort to define each of the key terms of the Amendment (what are ‘arms’? what did ‘bear’ mean? what were the different definitions of ‘militia’?). One is left with a good deal of interesting information, along with assertions that the particular texts and examples cited are exhaustive and determinative. But no one who is familiar with historical research or textual interpretation in other contexts (philosophy, religion, literature) can doubt that different researchers could unearth other texts and other examples and come to different conclusions. Or as Posner says, citing the author of Reading Law’s Preface, Judge Frank Easterbrook:

“Easterbrook goes on: “When the original meaning is lost in the passage of time…the justification for judges’ having the last word evaporates.” This is a version of the doctrine of judicial self-restraint, which Scalia and Garner endorse by saying that a statute’s unconstitutionality must be “clearly shown”—which it was not in Heller. Justice Scalia’s interpretation of the Second Amendment probably is erroneous, but one who doubts this should conclude that the relevant meaning of the amendment had been “lost in the passage of time,” and so the Court should have let the District of Columbia’s gun ordinance stand.”

As many Scalia critics have pointed out, a genuine conservative would be inclined to follow precedent and defer to legislatures, but Scalia has been aggressive in using his method to challenge and overturn established understandings.

These are the basic reasons why Posner concludes, after examining many specific cases in Reading Law, that Scalia’s arguments don’t add up and that in fact they provide a convenient excuse for furthering his policy preferences:

A problem that undermines their entire approach is the authors’ lack of a consistent commitment to textual originalism. They endorse fifty-seven “canons of construction,” or interpretive principles, and in their variety and frequent ambiguity these “canons” provide them with all the room needed to generate the outcome that favors Justice Scalia’s strongly felt views on such matters as abortion, homosexuality, illegal immigration, states’ rights, the death penalty, and guns.

Scalia also defends originalism from a different direction that we should consider. When Scalia and liberal Justice Stephen Breyer conducted a series of debates over their competing approaches, Scalia often justified originalism by using the well-known joke about the two campers attacked by a grizzly—you don’t have to be faster than the bear, just faster than the other camper.  In other words, originalism may be far from perfect, but it’s better than the subjective alternatives.

If the conclusion is that originalism should be the only or dominant mode of interpreting the Constitution, I would disagree, but I do think that having a tough-minded originalism in the mix of competing approaches is a good thing. I want judges and scholars to take the original meaning of the text and the intentions of the drafters seriously. I want them to clearly justify an interpretation that stretches the original meaning. Many observers credit Scalia and other originalists with raising the level of debate and challenging argle-bargle liberal thinking. We have nine Supreme Court justices and we’re better off with someone like Scalia on the bench, making their case forcefully and keeping the rest of us on our toes. But given originalism’s shortcomings, Justice Breyer’s more eclectic approach that includes six interpretive tools—text, history, tradition, precedent, the purpose of a statute, and the consequences—is a better model for the Court as a whole.

I would describe Scalia as like an alcoholic who knows he has a problem, goes to occasional AA meetings, but regularly falls off the wagon. Much of the time he is charming and funny and great company at the bar. But when he goes on a bender, it’s a doozy and there’s a lot of smashed-up furniture. The American people will be paying the bill for decisions like Heller and Citizen’s United for a long time to come.

Conclusion. I think at bottom we have an issue that depends on which aspect of the American founding you want to emphasize. Was the great innovation at our country’s birth the discovery of rights, eternal principles that, once discovered and properly defined, don’t change and need to be protected in their pristine vigor? Or was it representative democracy, the idea of basing government on the will and interests of the people, making use of what Hamilton in the Ninth Federalist calls a new and improved “science of politics” to create new institutions to guard against the dangers of popular rule?

If the former you will lean towards originalism, because the great danger is that as we become more distant from, and forgetful of, our origins, as conditions change and immediate interests come to the fore, we will infringe on these rights. The original meaning should be our constant rudder as we move into the future.  (And a pox on democracy, too, if it gets in the way. Case in point:  David Harsanyi, who wrote a shrill conservative rebuttal to Ezra Klein’s argument about politics making us stupid, is the author of a recent book called The People Have Spoken (And They Are Wrong):  The Case Against Democracy.)

If the latter you will want a living Constitution that responds better to the people’s will. You will side with Thomas Jefferson’s intent (if not necessarily his exact prescription) in proposing that the Constitution be rewritten every generation to keep society from being tyrannized by the past.  You will not want the original intent or the meaning of a piece of text in the eyes of people in 1787—which you may think is impossible to know in any case–to be an anchor that prevents us from moving at all.