Justice Scalia, the Last Originalist
Justice Antonin Scalia didn’t invent originalism. The credit for that on the modern Supreme Court goes to Justice Hugo Black, who developed the approach to constitutional interpretation as a liberal tool to make the states comply with the Bill of Rights. But Scalia did more to bring originalism into the conservative mainstream than any other Supreme Court justice. In fact, his role as the godfather of the conservative constitutional rebirth of the 1980s and ’90s derived from his originalist advocacy.
But will Scalia’s originalist legacy last? Can the philosophy outlive the man? There is reason to doubt it -- because Scalia is literally irreplaceable, and because the younger conservative justices aren’t originalists of the same stripe.
Scalia’s influence was not only intellectual but also charismatic, driven by his outsize personality, and institutional, driven by his role writing for the court. Without the force of his character and his steady stream of opinions, his long-term impact will depend on how much his ideas have seeped into the water of conservative constitutional thought. At a broad level, originalism has had one important effect that isn’t going away: It’s fueled the growing academic field of constitutional history. 1
But you can study the history of the Constitution without thinking that it’ll lead you to the promised land of objective historical truth. Scalia thought that such history could be found, as he argued in a lecture he gave repeatedly in recent years.
Most historians doubt that. Indeed, training in history departments tends to yield the opposite result. Historians don’t think there’s a single answer to most complex historical problems.
What’s more, they often believe in historical evolution and change, which is more compatible with the idea of a living Constitution than of Scalia’s dead one. More constitutional history of the careful kind won’t be a legacy that Scalia would’ve embraced as his own.
On the court, Justice Clarence Thomas is carrying the torch of historical originalism, and will no doubt continue to do so. In many cases, Thomas has taken historical inquiry deeper and further than Scalia did. Thomas at times seems willing to scrap much of constitutional precedent when it’s inconsistent with what he considers the original public meaning of the document. 2
But Thomas doesn’t have Scalia’s influence among conservative legal thinkers. Many movement conservatives admire him personally, but unlike Scalia, Thomas doesn’t present himself as a hard-hitting intellectual, eager to wage the war of ideas in every possible venue. Thomas’s opinions do show historical originalism, and sometimes very deep and hard research. But his public lectures and nonjudicial writings aren’t designed to promote his jurisprudence.
To illustrate: Thomas’s best-known book is his autobiography. Scalia’s is an essential volume published in 1998 by Princeton University Press titled “A Matter of Interpretation.” It’s the record of Scalia’s Tanner Lectures on human values -- the most prestigious lecture series in the humanities. It contains not only Scalia’s serious and penetrating text, but also responses by four major thinkers: the historian Gordon Wood, the late legal philosopher Ronald Dworkin, and two of my law professor colleagues, Mary Ann Glendon and Laurence Tribe.
Given our current confirmation practices, it’s hard to imagine a future conservative justice with the combination of intellectual heft and desire to perform in public that led to Scalia’s Tanner Lectures.
That leaves Scalia’s originalist legacy mostly in the hands of the other Supreme Court justices. Chief Justice John Roberts isn’t anything like a pure originalist. A brilliant doctrinal lawyer, Roberts is far more comfortable sorting through complex precedents in the U.S. Reports than finding new sources that shed light on constitutional history. What’s more, Roberts in recent years has shown a tendency toward judicial restraint that’s at odds with the swashbuckling conservative.
Justice Samuel Alito might on the surface look like a more promising figure to inherit Scalia’s mantle. But he’s no “Scalito,” as some critics charged when he first joined the court. Alito is certainly deeply conservative. But his conservatism seems to rest more on deeply cherished values, like religious liberty, than Scalia’s did. For Scalia, what mattered first and foremost about constitutional interpretation was the method. For Alito, what matters is the result and its compatibility with conservative values. 3
Of course, if elected president, Ted Cruz or Marco Rubio or even Donald Trump might elevate other conservative intellectual originalists to the court. But unless that happens, it seems probable that, over the long-term, Scalia’s originalism will fade as an intellectual force. Clever lawyers will keep on making originalist arguments to the courts -- but they’ll stop if no one’s buying. Conservative justices will use originalist arguments sometimes, but except for Thomas, they won’t make originalism their touchstone. With no replacement for Scalia to lead the charge, originalism as a constitutional philosophy will recede – until a new generation finds it useful for as yet unknown purposes.
The so-called historical turn in constitutional scholarship isn’t absolute by any means. Many of my smartest contemporaries who teach constitutional law are more committed to political science (inflected by economics) as a source of insight than to history.
Scalia was always more wary of going this far. He had a vestigial attachment to the ideal of judicial restraint, which was very important for his philosophy of statutory interpretation, known textualism. This occasional impulse to restraint stood in the way of the counterimpulse to follow the history wherever it went, even if that meant reversing centuries of doctrine.
It's not a coincidence that Scalia was educated at Harvard Law School in the tradition of what’s known as the “legal process” school of thought, which sought consistent, nonideological methods to decide cases. Alito in contrast was educated at Yale Law School, where the emphasis was more strongly on reaching substantively correct legal results in accordance with the value of justice.
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