Contrary to Ben Wittes’s insights, this recent Los Angeles Times article contends that “this is the year Justice Antonin Scalia … could emerge as a leader of a new conservative majority.” I wish it were true (if, that is, “conservative” is understood to mean “judicially restrained”), but counting to five will indicate that it is not.
Unfortunately, the article is replete with confusing political labels (“to the right”, “moderates”, etc.) and phrases that obscure the difference between judging and policymaking. It even states that a “Scalia-led majority would … more tightly regulate abortion,” when what it means (or ought to mean) is that Scalia-led deregulation of the judicial role in abortion would permit the democratic processes to establish abortion policies. (A later passage in the article is much clearer.)
The article states that Scalia says that the Establishment Clause “was intended only to bar the government from supporting an official national religion.” But is there anyone who contends otherwise? More to the point (in terms of how he would “make his mark” in judicial rulings), the article fails to inform readers that Scalia has accepted the incorporation of the Establishment Clause against the states.
The article also cites critics of Scalia for certain points. (In responding to these points, I am not disputing how the article reads; I am instead disputing the critics.) Law professor Mark Tushnet, for example, asserts that originalism “doesn’t work in deciding cases.” From the context, it’s not clear what exactly he means, but, having heard this objection before, I’m guessing that his claim is that the original meaning is sometimes or often difficult to discern. That’s certainly not the case for the most contentious controversies. But let’s assume that his claim is often true. So what? If judges can’t discern an original meaning that a legislative enactment violates, then they have no authority to override the legislative enactment. In other words, the eminently workable rule, for anyone who embraces both originalism and judicial restraint, is that democratic enactments prevail unless they can fairly be said to conflict with the Constitution.
According to the article, critics also say that Scalia’s originalism has been inconsistent: the Equal Protection Clause applies only against the states, but Scalia has applied it against federal racial preferences that disfavor whites. But the inconsistency claim is feeble: Unless Scalia is to reject the notion that there is an equal-protection principle embedded in the Fifth Amendment that protects blacks from racial discrimination by the federal government, he can hardly be expected to rule that that equal-protection principle does not apply to non-blacks. The question, thus, is how an originalist deals with the problem of non-originalist precedent. And, as Scalia has explained (in A Matter of Interpretation), this same problem is one faced by every “other theory of interpretation put into practice in an ongoing system of law.” It’s worth noting that Scalia has applied all sorts of precedents (like the incorporation of the Establishment Clause against the states) that he believes are wrong and that often produce “liberal” results.
The article closes with law professor Erwin Chemerinsky’s comment that Scalia’s use of originalism “tends to persuade those who already agree with him,” but “it doesn’t persuade those who disagree with him.” Well, maybe (though that may say a lot about the closedmindedness of those who disagree). As for the vast bulk in the middle—those who are undecided—Scalia has plainly been the most influential legal thinker of the past two decades, and his influence will continue for generations. But don’t expect to see it come to fruition this year.