Bench Memos

Bruce Allen Murphy’s Scalia: A Court of One—Part 5

See Parts 1, 2, 3, and 4

Another major thesis of Bruce Allen Murphy’s forthcoming biography of Justice Scalia is that Scalia’s interpretive methodology has repeatedly changed over the years. In a summation of his charge (p. 425), Murphy contends that

any fair reading of [Scalia’s] speeches and judicial opinions demonstrates clearly how the Court of Appeals judge, who had used a wide variety of decision-making theories, then became a strict textualist on the Supreme Court by the late 1980s, then evolved into a broader originalist by 1996, spoke as a Catholic on the Court in the early 2000s, became an even more partisan originalist by 2005, and was now [in 2010] casting himself as the judge of the historians.

Murphy’s contention is hopelessly confused. For starters, I’ll highlight the contrary assessment that a genuine scholar, Ralph Rossum, offers in his impressive 2006 book, Antonin Scalia’s Jurisprudence: Text and Tradition. According to Rossum, “Since his appointment to the Supreme Court, [Scalia] has been remarkably consistent in his approach to questions of constitutional and statutory interpretation, and his opinions have provided considerable instruction on what it means to be a principled and intelligent textualist.” Further, Scalia’s opinions during his D.C. Circuit years “sketched the outlines of the textualist jurisprudence that he would fully elaborate once he was on the Supreme Court.” (Murphy lists Rossum’s book among the 150 or so books in his selected bibliography, but I discerned no sign that he ever read it.)

Now let’s try to untangle Murphy’s confusion step by step:

1. Murphy says that Scalia “used a wide variety of decision-making theories” during his four years as a D.C. Circuit judge. To be sure, as a lower-court judge, Scalia was much more constrained by Supreme Court precedent than he would later be. That said, Murphy’s own account cuts against his claim.

According to Murphy, in the early Scalia dissent that “best demonstrated his early judicial technique and philosophy,” Scalia “demonstrated his new theory of ‘textualism,’ going to his dictionary for a textual meaning of the limits of speech in the Constitution’s First Amendment.” (In another passage, Murphy misunderstands textualism as nothing more than “dictionary meaning.”) In another opinion, he “add[ed]” to his textual approach “an inquiry into the historical tradition.” And by the fall of 1985, Scalia was “proposing that judges rely on his version of the ‘public meaning’ of the Constitution, interpreting laws according to the meaning of the words in the minds of the people at the time of the creation of that charter.”

Murphy seems to think that these illustrations are discordant rather than compatible. But if we set aside his error in thinking that textualism is limited to dictionary meaning and his infelicitous mixing of “public meaning” with what is “in the minds of the people,” we recognize the clear outlines of Scalia’s originalism.

2. Murphy states that Scalia “became a strict textualist on the Supreme Court by the late 1980s,” and he contrasts that phase with a later evolution “into a broader originalist.” By “strict textualist,” Murphy evidently means that Scalia supposedly “bas[ed] decisions” solely “on the dictionary definition of the Constitution’s or statute’s words.”

It’s true that Scalia sometimes relied on contemporaneous dictionary definitions. But Murphy can point to nothing that would indicate that Scalia ever embraced the notion that textualism was nothing but dictionary definitions. There is nothing in the “public meaning” theory of originalist textualism that remotely suggests such a limit.

Further, even if Murphy has a somewhat more expansive understanding of what it means to be a “strict textualist,” Scalia’s full originalism was already on display early in his time on the Court. Take Scalia’s classic 1988 dissent in Morrison v. Olson, at the end of only his second term.  Scalia relies heavily on the structural principle of separation of powers. He doesn’t  look to a dictionary to determine what “the executive Power” means. And after citing two competing dictionary definitions of “inferiour,” he relies on the structure of the Constitution and on the context of the word “inferior” in the Appointments Clause to determine that it means “subordinate.”

3. I have no idea what Murphy means when he contends that Scalia shifted to an interpretive methodology in which he “spoke as a Catholic on the Court in the early 2000s.” As my Part 3 post makes clear, I think it’s obvious that Murphy likewise has no idea what he means.

4. As for Murphy’s claim that Scalia, in 2010, was “casting himself as the judge of the historians,” it ought to be clear, whether from Murphy’s own account of Scalia’s “original meaning” approach in 1985 or from Morrison v. Olson or from umpteen other pieces of evidence, that Scalia’s public-meaning originalism always entailed a historical inquiry into the original meaning of legal provisions.

* * *

In sum, Murphy’s claim that Scalia made the various dramatic shifts that Murphy posits”—much less that “any fair reading of [Scalia’s] speeches and judicial opinions demonstrates clearly” those shifts—is ridiculous.​

Lest I be misunderstood: I readily acknowledge the possibility that an intelligent scholar could plausibly identify changes in Scalia’s approach as well as inconsistencies in how he has applied his stated principles. (Rossum, for example, contends that Scalia “has occasionally drifted from his text-and-tradition moorings.”) But Murphy’s account falls well below the bar of competence.

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