Feb
14

Originalism and the Death of Antonin Scalia

            Antonin Scalia’s death doesn’t just yield a vacancy on the United States Supreme Court; it provides an opportunity to re-examine the role of the Court in American life, and to ask fundamental questions about how we decide what is, and is not, just.

            No sooner had word been publicized that Justice Scalia had died than presidential candidates weighed in on whether President Barack Obama should nominate a replacement, or should defer to the next president. President Obama put a quick end to speculation about his intentions, announcing that he will nominate a replacement. Most Senate Republican presidential candidates, and Senators, want the nomination deferred; the Republican-controlled Senate is all but certain to refuse to confirm.

            Politics defines the process of selecting a justice.

            That should hardly come as a surprise. The very act of judging is inherently political. Despite pretensions about deciding cases on the basis of neutral principles, the act of judging is intensely political, requiring jurists to make commitments about fundamental values.

            Justice Scalia was, perhaps, one of the last angry white males in a robe. The battle over his replacement will, in fact, be a struggle over not just visions of how the Constitution should be read, but, more importantly, it will be a battle about what American society should look like.

            Scalia’s signature judicial doctrine was the notion of “originalism.” On this theory, a judge’s interpretive efforts should be confined to a close reading of the text of the Constitution, construing the document, and its clauses, in a manner best approximating the intended meaning of those who drafted the document. He scorned the notion of a “living constitution.” Constitutional doctrine was rooted in the past, in the eighteenth century, to be exact, the world of the Thomas Jefferson, John Adams and James Madison.

            Just why we the living should tether ourselves to the intentions of the long dead was a question he seemed to beg, rather than address head on. Originalism is a species of hagiography, the making of saints out of the founders of the Republic.

            But the founders weren’t saints, their intentions not imperatives binding future generations. They founded a republic, not a church: there is no Apostolic succession binding Supreme Court justices to the doctrinal commitments of the past. Scalia, the Court’s first Catholic, made an unconvincing catechism of his originalism.

            That’s not to say originalism is incoherent. It’s not. The canons of this school of thought are rooted in a profession of faith in democracy. Judges are not elected; they are members of the least popular branch of government. These unelected scribes should defer to elected officials. When judges make law, democracy is mocked.

            Originalism, then, is a doctrine of constraint, a potent means to combat “judicial activism.”

            This distinction between originalists and activists is specious. I can think of no more active a means of interpreting the Constitution than the originalist’s exercises in divining the intentions of the dead. Indeed, under Scalia’s influence, Supreme Court decisions have, in recent decades, become longer, less comprehensible to ordinary folks, and doctrinally more complex. Could it be that public confidence in the courts has declined precisely because the justices are engaged more in necromancy than in the concerns of the living, breathing folks appearing before them as parties?

            Originalism is, perhaps, the most self-conscious and involved form of activism imaginable.

            Replacing Scalia in this contentious presidential election year places much more than judicial temperament at the center of the selection process. Let’s decode the political landscape for a moment to see what’s at stake.

            The next justice will like serve 25 or so years on the Court, serving until the 2040, or thereabouts. That’s when Caucasians will become a minority in the United States. The presidential candidates are already talking about this demographic shift, as we saw in the most recent debate between Hillary Clinton and Bernie Sanders. Sanders associated statistics about increasing suicide rates among white working class Americans with their loss of hope in the future.

            Forgive me if I think of Antonin Scalia as the justice for the vanishing white America. The Constitution must be read as it was in the founding era? It strains the obvious to note that was an era of slavery, of privileges overcome by time.

            Don’t mistake my meaning. The deeper structure of constitutional doctrine is colorblind: the separation of powers and federalism are powerful skeletal forms holding together governing institutions of fragmented power.

            But skeletons only move as they are compelled to move by muscles, and the musculature of the republic is the passions of the people who live within it. In a bygone era, the passions that mattered were largely white and male. Ours is an era of identity politics; it’s now assumed that “white male privilege” both exists, and must be combatted.

            Just how does an originalist, a person committed to reading a doctrine composed in an era of white hegemony, walk eyes wide open into the new America?

            The Roman orator Cicero long ago defined a Republic as a collection of people bound together by common interests and a common conception of right. The sense of aggrievement worn on the sleeve of every identity politician yields a sense of right not rooted in the eighteenth century, but in a future as yet unrealized.

            Antonin Scalia was no racist, I believe. He was witty, charming, brilliant, and, most of all, idiosyncratic. It took a combination of all these characteristics, together with a lifetime appointment to the Supreme Court, to make originalism influential. Now that he is dead, originalism will soon expire, too. It is bankrupt form of activism.

            It’s simply ludicrous to make amateur historians of justices. What’s needed on the Court is something it does not have: a trial lawyer who earns his or her bread in the well of the court arguing the cases and controversies of contemporary Americans. There’s a crisis of legitimacy abroad; detached jurists helped create it. Appointing people’s lawyers to the high court can help overcome it.

Related topics: Journal Register Columns
Comments (1)
Posted on February 24, 2016 at 8:49 pm by Andrew Warren
Legal Education and SCOTUS
Is there a graduate of a public law school on the court right now? Might be a decent place to look for a people's lawyer.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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