On February 13, 2016, America lost one of the greatest legal minds in its history in Supreme Court Associate Justice Antonin Scalia. The national discourse quickly shifted to what will surely be the contentious process of selecting Justice Scalia’s replacement. We will have plenty of time to discuss the effects of Justice Scalia’s death and the importance of ensuring that he is replaced by a brilliant jurist who will carry on his legacy. For today, I would like to instead focus on the career of a great man and a great American who left us too soon.
Justice Scalia’s Biography
Justice Scalia was born in Trenton, New Jersey, on March 11, 1936. He obtained his law degree from Harvard Law in 1960. After working as a law professor, Scalia served in various capacities in the Nixon and Ford administrations. During the Carter administration, Scalia returned to academia. Of note to those interested in immigration law, Scalia served as the chairman of the American Bar Association’s Section of Administrative Law from 1981-82. In 1982, Scalia was nominated by President Ronald Reagan, and subsequently confirmed by the Senate, to the United States Court of Appeals for the District of Columbia Circuit. In 1986, President Reagan nominated then-Judge Scalia to the United States Supreme Court to fill a vacancy created by the elevation of Justice William Rehnquist to Chief Justice. Scalia was confirmed by the Senate by a vote of 97-0 and took his seat on the Supreme Court on September 26, 1986.1 Of note at the time, Justice Scalia was the first Italian-American Justice to serve on the Supreme Court (Justice Samuel Alito is now the second).
Justice Scalia’s Impact on Reading Law
Whether one agrees or disagrees with Justice Scalia’s approach to reading law, there is no questioning that he was a legal thinker of immense consequence. There are three terms often associated with Justice Scalia’s legal philosophy:
Originalism
Textualism
Strict Constructionism
In a speech delivered at the Catholic University of America on October 16, 1996, Justice Scalia described his way of reading the Constitution thusly [link]:
I belong to a school, a small but hardy school, called “textualists” or originalists.” … The Theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.2
In Reading Law, a book that Justice Scalia coauthored with legal lexographer Bryan Garner, the two authors argued for textualism as follows:
Textualism will not relieve judges of all doubts and misgivings about their interpretations. Judging is inherently difficult, and language notoriously slippery. But textualism will provide greater certainty in the law, and hence greater predictability and respect for the rule of law. A system of democratically adopted laws cannot endure-it makes no sense-without the belief that words convey discernable meanings and without the commitment of legal arbiters to abide by those meanings.3
Underlying Justice Scalia’s philosophy of reading law is “the belief that words convey discernable meanings.” Justice Scalia sought to read the constitution and statutes fairly, with respect to the fairly understood meanings that the words had at the time they were adopted. In a large sense, this is a dramatic oversimplification of Justice Scalia’s legal philosophy. Justice Scalia and Garner spent over 500 pages in Reading Law listing a multitude of canons for interpreting judicial texts. However, for the purpose of a blog post, it is a suitable summary of Justice Scalia’s ideas.
You will often see the term “strict constructionism” applied to Justice Scalia. However, Justice Scalia disputed any notion that he was a strict constructionist. For example, the following is an excerpt from his book “A Matter of Interpretation”:
Textualism should not be confused with so-called strict constructionism, which is a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be-though better that, I suppose, than a nontextualist. A text should not be strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.4
This is important to remember when reading about Justice Scalia. While many apply their own terms to his legal philosophy, Justice Scalia was in fact quite clear on what he saw as the proper way to read legal texts. Justice Scalia believed that words ought to be read as having the fairly understood meaning they had at the time the text was drafted. However, he believed that words and phrases should be read reasonably and in context. To read a text strictly would be to ignore the legal canons of interpreting texts, to read a text leniently would be to ignore the definite discernable meanings of the words in the text.
An interesting offshoot of Justice Scalia’s philosophy of reading texts was his opposition to relying on what is called “legislative intent.” The idea behind legislative intent is that a court will use legislative history in order to determine the intent if the legislature in passing the statute. Justice Scalia categorically opposed the judiciary’s reliance on legislative history. In “Reading Law,” Justice Scalia wrote:
My view that the objective indication of the words, rather than the intent of the legislature, is what constitutes the law leads me, of course, to the conclusion that the legislative history should not be used as an authoritative indication of a statute’s meaning.5
In his speech at the Catholic University of America, Justice Scalia said:
…I don’t use legislative history. The words are the law. I think that’s what is meant by a government of laws, not of men. We are not bound by the intent of our legislators, but by the laws which they enacted, which are set forth in words, of course.6
Justice Scalia’s opposition to the use of legislative history stems from two factors. First, Justice Scalia believed that the way to determine what a law means is to study the actual meaning of the words used in the text of the law. Ultimately, the thing that held meaning for Justice Scalia was the words that composed a law, not the intent of the legislators in drafting the law. In addition, Justice Scalia noted that legislative bodies are made up of many distinct members, and that it would be accordingly difficult to ascribe a single “legislative intent” to a statute.7
Nevertheless, Justice Scalia was often willing to not overturn decisions he disagreed with because of the concept of stare decisis, “to stand by things decided.” In A Matter of Interpretation, Justice Scalia responded to a critique from law professor Lawrence Tribe that Justice Scalia’s acceptance of stare decisis stood at tension with his originalist legal philosophy:
The whole function of [stare decisis] us say that what is false under proper analysis must nevertheless be held to be true, all in the interest of stability. It is a compromise of all of our philosophies of interpretation, his no less than mine.8
Justice Scalia continued:
As I have explained, stare decisis is not a part of my originalist philosophy; it is a pragmatic exception to it.9
Whether Justice Scalia sought to overturn a line of precedent depended on the severity of the error in the previous decisions and whether there was a simpler way to reach a decision in the instant case that was consistent with the judicial canons. However, it is interesting to note that Justice Scalia would often compromise in letting stand past decisions he considered erroneous in the interest of stare decisis.
Justice Scalia’s Dissents
In addition to his great contributions to legal theory and textual interpretation, Justice Scalia was well known for his writing style. His opinions were well-reasoned, whether one agreed or not. However, he was perhaps known in the public for his witty, and often acerbic, dissents. I am loath to pick just one example, but for this post I will cite Justice Scalia’s dissent in the PGA Tour, Inc. v. Martin, 52 U.S. 661 (2001). In short, the question concerned a professional golfer with a muscular condition who sought to use a golf cart during the third round of the PGA Tour’s qualifying tournament. The PGA Tour argued that walking was an essential part of golf. By a 7-2 majority, the Supreme Court found that the PGA Tour failed to adhere to the Americans with Disabilities Act in denying the golfer the use of a cart. Justice Scalia authored a dissent that was joined only by Justice Clarence Thomas. The following is an excerpt from the dissent:
If one assumes, however, that the PGA TOUR has some legal obligation to play classic, Platonic golf-and if one assumes the correctness of all the other wrong turns the Court has made to get to this point-then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power “[t]o regulate Commerce with foreign Nations, and among the several States,” U.S. Const., Art I, §8, cl. 3, to decide What Is Golf. I am sure the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to argue with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the land, that walking is not a “fundamental” aspect of golf.
To be sure, Justice Scalia’s flamboyant dissents rubbed some-most often those who disagreed with his perspective-the wrong way. But there is no question that a dissent with a paragraph that touches on the Platonic ideal of golf, a constitutional citation, and an edict of King James II will make for entertaining reading. Justice Scalia’s style in his dissents drew attention to his views, and helped make what would otherwise be arcane legal issues interesting to laymen, law students, and lawyers alike. One may think reading this that Justice Scalia the process of writing opinions. However, this was not the case according to Justice Scalia in an interview given to C-SPAN that was transcribed in “The Supreme Court: A C-SPAN Book Featuring the Justices in their Own Words”:
I do not enjoy writing. I enjoy having written. I find writing a very difficult process. I sweat over it. I write. I rewrite, I rewrite again.10
In the same interview, Justice Scalia was asked if he preferred writing dissents. Although Justice Scalia preferred to write majority opinions, because commanding a majority is preferable to dissenting, Justice Scalia said the following about writing dissents:
[D]issents are more fun to write, I’ve got to say that, because when you have the dissent, it’s yours. You say what you want, and if somebody doesn’t want to join it, who cares?11
Of course, Justice Scalia’s dissents were written for more than our amusement. While writing a dissent means that your views did not prevail in the instant case, the dissent is an opportunity to express the result that you would have liked to have seen. Justice Scalia certainly hoped that the opinions expressed in his dissents may be the opinions in the majority opinion in a subsequent case, but he wrote his dissents for a larger audience. Justice Scalia surely recognized that writing in an engaging and entertaining manner would make his opinions more accessible to the next generation of lawyers and judges and to the public at large. To this effect, Justice Scalia often succeeded even when he found himself in dissent by crafting colorful dissents that will be read for years to come.
Justice Scalia’s Legacy
It is too soon to say what the ultimate legacy of Justice Scalia’s work on the Supreme Court will be. However, there can be no doubt that Justice Scalia was a titan of the legal profession, and that his work on the Supreme Court for nearly thirty years distinctly impacted American law. While he is often known most for his dissents, Justice Scalia wrote many consequential opinions. For example, Justice Scalia authored the landmark decision in the District of Columbia v. Heller, 554 U.S. 570 (2008), which held that the Second Amendment protects an individual’s right to possess a firearm for traditionally lawful purposes.
Although not all of his views have received widespread favor on the Court-for example Justice Clarence Thomas is the only other member of the Supreme Court who shared Justice Scalia’s disdain for the use of legislative history-Justice Scalia forced litigators to make textualist and originalist arguments before the Supreme Court that would not have been necessary without a Justice Scalia to persuade. Furthermore, his brilliantly articulated and forceful views helped inspire a renaissance in conservative legal philosophy that continues to this day.
In addition to remembering his legacy in the law, let us also remember that he leaves behind a wife of 55 years, 9 children, 28 grandchildren, and many friends. Justice Scalia was by all accounts a good man, and he was undoubtedly a great American who rendered a tremendous service to his country.
Although they approached the law very differently, Justice Scalia’s closest friend on the Court was Justice Ruth Bader Ginsburg. Therefore, I cannot think of a better way to conclude this post that with an excerpt of Justice Ginsburg’s touching statement remembering her friend and colleague:
From our years together at the D.C. Circuit, we were best buddies. We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial calculation.12
- See “Biographies of Current Justices of the Supreme Court”: available at http://www.supremecourt.gov/about/biographies.aspx [link]
- A. Scalia, “A Theory of Constititution Interpretation,” (Oct. 18, 1996), available at http://web.archive.org/web/19970108070805/http://www.courttv.com/library/rights/scalia.html [link]
- A. Scalia and B. Garner, “Reading Law: The Interpretation of Legal Texts,” (Thompson/West. 2012), XXIX
- A. Scalia, “A Matter of Interpretation: Federal Courts and the Law,” (Princeton University Press. 1997), 23
- Id. 29-30
- A Theory of Constitution Interpretation
- A Matter of Interpretation. 32-37
- Id. 139
- Id. 140
- Ed. B. Lamb, S. Swain, and M. Farkas, “The Supreme Court: A C-SPAN Book Featuring the Justices in Their Own Words,” (PublicAffairs. 2010) 64
- Id. 65
- R. Savransky, “Ginsburg on Scalia: ‘We were best buddies’” The Hill, (Feb. 14, 2016), available at http://thehill.com/blogs/blog-briefing-room/news/269458-ginsburg-on-scalia-we-were-best-buddies [link]
