The Essential Scalia, co-edited by Sixth Circuit judge Jeffrey Sutton and me, provides the occasion for a long essay in the New York Review of Books by Harvard law professor Noah Feldman. Feldman explores how tensions among Justice Scalia’s jurisprudential principles might play out in a Supreme Court reshaped by the three new justices who profess adherence to Scalia’s judicial philosophy. But Feldman’s confusing account of Scalia’s “judicial restraint” leads him to posit tensions that don’t exist and to misframe those that do.
1. Feldman contends that Scalia’s jurisprudence is “based on the principles of judicial restraint, originalism, and textualism.” He fairly summarizes judicial restraint as “roughly, the idea that judges must not make what [Scalia] called ‘legislative judgments’ of public policy.” But several paragraphs later comes this bizarre passage about Scalia’s jurisprudence:
From the start there were latent contradictions between originalism and judicial restraint. Judicial restraint called for judges to defer to Congress’s authority to pass laws. But what if the original meaning of the Constitution required striking down laws that had been passed in the centuries since ratification?
The “latent contradictions” existed only if Scalia embraced a principle of judicial restraint under which judges must always “defer to Congress’s authority to pass laws”—in other words, may never rule a law to be unconstitutional. I doubt that any proponent of judicial restraint has ever espoused such a principle (which is tantamount to rejecting the power of judicial review). Scalia certainly never did.
Nor would such imaginary “contradictions” have been “latent” for long: Right near the start of his career as a justice, at the end of only his second year on the Court, Scalia penned his famous solo dissent in Morrison v. Olson (1988) in which he argued that the independent-counsel statute was unconstitutional.
2. Feldman asserts that judicial restraint “call[s] on judges to respect past rulings”—in other words, that it requires significant deference to wrongly decided Supreme Court precedent. On this misunderstanding, he contends that Chief Justice Roberts “relied on the Scalian principle of judicial restraint” in last term’s abortion ruling in June Medical Services v. Russo when he “provided the decisive vote to affirm the right to abortion as expressed in Planned Parenthood v. Casey (1992). He even contends that Justices O’Connor, Kennedy, and Souter “embrace[d] judicial restraint” in their joint opinion in Casey.
Feldman gets everything very wrong here.
For starters, judicial restraint aims to promote the proper role of the courts in a system of representative government and separated powers. By contrast, stare decisis, or adherence to precedent, is largely an intrajudicial doctrine. It’s doubtful that judicial restraint dictates any particular theory of stare decisis. But the strongest implication it would have is that precedents like Roe v. Wade and Casey that wrongly intrude on the democratic processes should especially warrant being overruled.
As the Chief Justice explains in his opinion concurring in the judgment in June Medical, his vote rested entirely on his understanding of what stare decisis required, not on “the Scalian principle of judicial restraint.” Nor did the Chief “vote to affirm the right to abortion as expressed in” Casey. The Chief expressly noted that the parties “agree that the undue burden standard announced in Casey provides the appropriate framework to analyze Louisiana’s law,” so there was no occasion to revisit Casey. The precedent that the Chief instead found binding was the ruling three years ago in Whole Woman’s Health v. Hellerstedt.
It’s astounding to contend that the joint opinion in Casey—an opinion that is breathtaking in its grandiose misunderstanding of the Supreme Court’s role—“embrace[d] judicial restraint.”
In sum, Feldman’s claim that reversing Roe and Casey would violate “Scalian judicial restraint” is baseless.
3. More broadly, I believe that Feldman is wrong to include judicial restraint, along with originalism and textualism, in the “Scalian trinity” of jurisprudential principles. I think that Scalia instead understood judicial restraint as a value that originalism and textualism serve. Originalism respects the broad play that the Constitution gives to the democratic processes, and textualism implements the laws that have been democratically enacted.
If a third Scalia principle is to accompany originalism and textualism, it should be Scalia’s commitment to establishing a law of rules. Feldman briefly discusses Scalia’s lecture titled “The Rule of Law as a Law of Rules” (the lead item in The Essential Scalia), but he never explores the tensions that actually do exist between Scalia’s commitment to a law of rules, on the one hand, and his originalism and textualism, on the other. (There is plenty of room, for example, to argue that Scalia’s controversial Free Exercise ruling in Employment Division v. Smith (1990) was driven by his commitment to a law of rules rather than by his originalism.)
4. If I’m understanding it correctly, I also disagree with this claim of Feldman’s:
Scalia’s legal approach adheres closely to the theory of legal positivism, which in its modern form goes back to the English philosopher John Austin (1790–1859). Legal positivism depicts law as a set of rules determined by factual description of existing laws and institutions, without reference to normative moral arguments about what the law should be.
Scalia was a judicial positivist—he believed that judges could not indulge their own moral preferences in interpreting and applying legal texts—but where did he ever express the view that legislators should make laws “without reference to normative moral arguments about what the law should be”? On the contrary, he thought it entirely proper that legislators should act on their and their constituents’ understandings of what justice requires. As he stated in his dissent in Casey, “Value judgments, after all, should be voted on, not dictated [by judges].”