Immediately following his death, Justice Antonin Scalia was widely praised, mainly but not exclusively by far-right political conservatives, as one of the most influential jurists of his generation, if not in America history. Indeed, the adulation was so frothy one might have concluded that Scalia was already enshrined in the pantheon of great American jurists along with Chief Justice John Marshall, Justice Louis Brandeis, and Circuit Court Judge Learned Hand, to name but a few.
It is true that over the three decades Scalia was on the Supreme Court, he made distinctive contributions to a vigorous debate over the meaning of the Constitution and how a judge should divine that meaning. He also played a central role in fueling deliberations over how to interpret statutes. But as strong a voice as he was in those debates, Scalia was not always the most consistent or persuasive one. Thus, the fact that he became an important figure not just in the minds of judges, lawyers, and inside-the-Beltway commentators, but individuals of many different stripes around the country, must mean that something much more potent than his participation in these debates contributed to his enormous public standing.
Justice Scalia had power, and for three decades he utilized that power to promote a radically conservative agenda. On so many of the highly controversial issues the court has decided in recent decades, the nine justices split 5 to 4, making Scalia essential to a conservative majority.
He was also a distinguished writer—and he wrote not just for the bench or the bar, but for the broader public. Accordingly, many of his opinions bristle with words and phrases likely inserted to appeal to far-right fellow travelers.
Justice Scalia refused to have his voice muffled by the Supreme Court’s protective walls. He broke through the stifling gates of judicial convention to become a prominent public figure with a national following. Indeed, Scalia became a firebrand celebrity who delighted in preaching his radically conservative values, and who could be counted on to increase attendance at politically conservative retreats and conferences such as the Federalist Society.
Scalia became prominent and celebrated precisely because he used his position as a justice on the court to mobilize conservatives, to rally those sympathetic to his cause, and to point them toward the radical change he favored. And he succeeded. He became a hero to the nation’s radical-right political establishment.
But will Scalia’s influence last? That is highly unlikely. History will eclipse him, and for many reasons.
Justice Scalia’s substantive views were antithetical to what is most fundamental, important, and enduring about American legal and political aspirations. He was horrified—indeed outraged—by the court’s ruling that a woman has a constitutional right to an abortion. In a case that arose a few years after he joined the court, and in which Justice Sandra Day O’Connor wrote a concurring opinion supportive of a woman’s right to abortion, Scalia stated that he did not think O’Connor’s opinion could “be taken seriously,” and he dismissed it as “irrational.”
Years later, when the court invalidated by a vote of 6 to 3 a Texas criminal statute banning same-sex sodomy on the ground that it violated a constitutional right to liberty, Justice Scalia’s bitter, backward-looking views were on full view when he wrote: “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”
What Scalia wrote was surely correct—many are deeply prejudiced against gays and lesbians. But his statements were legally irrelevant. Just as the demands of the Constitution did not permit the prejudice of whites to deny African Americans their rights, the Supreme Court ruled that the Constitution protects homosexuals from condemning critics. Scalia’s suggestion that legal rights should be denied because some Americans oppose their implementation is ridiculous. And he surely knew that. But in a few words, Scalia simultaneously ridiculed his judicial colleagues before a segment of the American public, fanned the flames of bigotry, and legitimized discrimination.
Justice Scalia’s interpretation of the Constitution left women out in the cold. Or, to put the matter more precisely, he believed that although women have been victims of horrific discrimination, they are not entitled to any special protection under the Fourteenth Amendment because, when that amendment was adopted, the people thought women were second-class citizens. Thus, from Scalia’s perspective, the 19th-century Supreme Court decisions construing the Fourteenth Amendment to permit states to bar a woman from voting or becoming a lawyer were correct at the time and remained correct in 2016.
In a throwback to the pre–New Deal, discredited era of laissez-faire, Scalia was a staunch defender of big business. Thus, at the federal level, he was one of five justices who voted to invalidate congressional regulation of campaign spending by not-for-profit corporations and to deny Congress the power to pass the Affordable Care Act under the commerce clause. And at the state level, for example, he was one of five votes in support of invalidating a California statute aimed at protecting consumers from mandatory arbitration clauses in the name of a 1925 congressional statute.
Justice Scalia’s crucial support of private enterprise was not lost on American businesses. In fact, within two weeks of his death, Dow Chemical settled a $1.06 billion jury verdict for $835 million because, as the company stated, of the “increased likelihood for unfavorable outcomes for business involved in class action suits.”
Scalia will go down in history as someone who undermined the legitimacy of his own court by writing opinions that demeaned and denigrated his colleagues. For example, in his opinion criticizing the majority’s ruling in the 2003 same-sex sex case, he charged that the majority opinion was “the product of a court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”
But even that attack on his colleagues’ integrity was not enough for Scalia. Repeating a refrain that has echoed across the history of African Americans, Irish Americans, Italian Americans, and Jews in America, he insisted, “I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means.” No, Scalia insisted, he was not a bigot; rather he, in contrast to his colleagues, believed in democracy. Therefore, gays and lesbians, along with others who may be a political minority, must win their rights in the state legislatures. For them, the Constitution is neither sword nor shield, and if they cannot persuade the politically powerful to change the law of a given state, their choice is clear: Stay where you are and live as a second-class citizen, or move to another state. From Scalia’s perspective, any Supreme Court justice who disagreed was undemocratic, and any ruling that was contrary to his view was not based on the Constitution.
Scalia did not merely criticize the opinions of his colleagues, he mocked and dismissed them as illegitimate. And when he supplemented that conduct with the public bullying of American law students—as, for example, when he would respond to student questions about the 2000 Bush v. Gore decision by saying “get over it,” he put aside reasoned argumentation in favor of the arrogance of power.
Scalia sought to avoid portraying himself as a radical. He tried to strike a pose of judicial humility by claiming that he interpreted the Constitution in accordance with “originalist” principles, which hold that justices should not make the law but engage in a historical search of relevant texts to find the meaning of the law when the Constitution, or a subsequent provision, was adopted. As Scalia preached it, his brand of originalism promised a “right” answer to difficult questions that he would find through historical analysis.
The prime example of this methodology was the 2008 blockbuster handgun case, District of Columbia v. Heller. But that opinion was anything but a persuasive example of the soundness of originalism. Indeed, the result was a tortured exploration of subjective materials that was powerfully answered by Justice John Paul Stevens, who employed the same methodology but reached the opposite outcome. As a result, instead of Scalia’s handgun opinion solidifying originalism as the best way to interpret the Constitution, his effort was so contrived that his opinion even convinced some who had initially embraced originalism that it promised much more than it could deliver and therefore was fundamentally faulty.
Originalism is inherently flawed and unworkable. Historical texts seldom if ever yield definitive answers to complicated constitutional questions. In fact, historical texts not only may yield many answers to such questions, they may yield no answers. Judges are not historians, and the idea of Supreme Court justices becoming law-office historians in order to resolve significant contemporary constitutional questions is unnerving. Originalism requires that the Constitution mean today what it meant when adopted, but it fails to define the level of generality that should be used to define the original understanding.
Originalism had its contemporary origins as a conservative response to Warren court rulings that defined important rights across the American legal landscape. Because conservatives lacked a meaningful reply to the substance of the rulings, they embraced originalism as a way to attack the Warren court’s judicial method. From its contemporary beginnings, originalism was a second-best response to—and counterattack against—the establishment of constitutional rights that conservatives disdain.
Originalism has never won the minds—let alone the hearts—of Supreme Court justices. Indeed, the idea that the meaning of the Constitution was eternally frozen at the time of its adoption was, for example, rejected by John Marshall, Oliver Wendell Holmes Jr., Louis Brandeis, Charles Evans Hughes, Felix Frankfurter, Earl Warren, William Brennan, John Harlan II, and William Rehnquist. The only justice on the court today who is an originalist is Clarence Thomas, and that claim includes Chief Justice John Roberts Jr. and Samuel Alito Jr. Originalism is a bankrupt concept, flawed beyond redemption, and will soon be (if it hasn’t been already) swept away by the dustbin of history.
Because Scalia is said to have been brilliant, he surely knew the limitations of his methodology as well as any outside observer. But he never admitted its fundamental shortcomings. Instead, he insisted that originalism was the best way to approach the Constitution and he sought to hide from public view both its profound shortcomings and his radical judicial activism by insisting that he was finding the law, not making it.
Scalia’s star may continue to shine for some years to come. But because his radical views were backward-looking, the very legal opinions that conservatives celebrate today will in time be disparaged and dismissed as misguided, and Scalia will be viewed as having fought not just losing battles but battles that should have been lost.