Bench Memos

Antonin Scalia, Full-Time Originalist

The Washington Post has published an op-ed by Washington lawyer David Dorsen under the headline “Antonin Scalia, Part-Time Liberal.” Dorsen contends that Justice Scalia “was personally a committed conservative and originalist” and that “he relied on that pair of approaches to render conservative opinions” on various topics. Dorsen goes on to recount a litany of what he terms “important liberal opinions” penned by Justice Scalia.

Like Justice Scalia’s hundred-odd other former law clerks, I’m quite familiar with the justice’s oeuvre; by the time I worked for him, relatively late in his tenure on the bench, the justice had already staked out a position on most of the constitutional questions we encountered. So I was naturally curious to see whether Dorsen was aware of some hitherto underappreciated part of the Scalia canon that I (and many others) had somehow missed.

The answer is no. Not only that, but the author’s roster of putatively “liberal” opinions includes many of Justice Scalia’s greatest originalist triumphs. The justice’s opinions on the confrontation clause, the Sixth Amendment right to trial by jury, the Fourth Amendment’s prohibition against unreasonable searches and seizures, and the First Amendment’s guarantee of freedom of speech — just to name a few — are “liberal” only in the sense that they produced policy consequences agreeable to the political Left.

Which of course is utterly irrelevant to the role of the judge as Justice Scalia saw it: The justice doggedly enforced the original public meaning of each of these constitutional guarantees because they are constitutional guarantees, not because doing so produced “liberal” outcomes. The justice enforced the Bill of Rights’ many textual protections for criminal defendants with the same resoluteness as he did the Second Amendment’s guarantee of the “right to keep and bear arms.” In short, these are originalist decisions, not liberal decisions, in the only respect that matters.

The same is true even of the one non-constitutional doctrine the author discusses: the rule of lenity, an interpretive principle which holds that where reasonable doubt exists, a statute should be read not to create criminal liability. Justice Scalia applied the rule of lenity not out of some personal affinity for criminal defendants, but because it accords with the Constitution’s separation of powers. As Chief Justice John Marshall explained, the rule rests “on the plain principle that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the Court, which is to define a crime, and ordain its punishment.”

To some extent, Dorsen’s article performs a useful service by highlighting (particularly for the Post’s many left-leaning readers) that Justice Scalia followed his originalist commitments to their logical ends, regardless of whether the result aligned with his personal policy preferences. These decisions give lie to the canard that the justice’s originalism was merely a pretext for him to achieve conservative policy outcomes.

Unfortunately, the piece makes the all-too-common error of classifying judicial decisions by their policy consequences — a valid metric for grading legislators, not judges — rather than their reasoning. Justice Scalia was a full-time originalist, and that’s what explains both his “conservative” and his “liberal” opinions.

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