How Scalia played with fire

Story highlights

Carolyn Shapiro: Scalia adhered to textualism, originalism, relying on Constitution's language, rejecting history or framers' intent

Shapiro: In this absolutism, justice sometimes maligned dissenters

He created false idea of law as objectively set, added to polarization over court, she says

Editor’s Note: Carolyn Shapiro is an associate professor of law at IIT Chicago-Kent College of Law. She is on leave from that position and is serving as Illinois solicitor general. The views expressed in this article are hers alone and do not reflect the views of the Illinois attorney general’s office.

CNN  — 

The late Justice Antonin Scalia has been justly praised for his tremendous intellect, his resounding influence on the law and his supremely accessible opinions. And since his death Saturday, many commentators have noted his sincere, long friendship with liberal Justice Ruth Bader Ginsburg and others with whom he often disagreed.

Indeed, some have suggested that we use the legendary Scalia-Ginsburg friendship – so well-known that it inspired an opera – as a model for how we should all relate to those whose political views we disagree with.

But Scalia’s personal warmth should not preclude considering to what extent his jurisprudence and his famously acerbic tone may have contributed to the polarized national conversation about the court.

Throughout his tenure, Scalia insisted on a particular approach to interpreting statutes and the Constitution. For statutes, he argued for “textualism,” requiring judges to look only at the statutory language, and sometimes to dictionaries, when determining a statute’s meaning.

He vociferously rejected reliance on legislative history, such as statements made by members of Congress and explanations of a statute’s purpose in committee reports. He argued that legislative history is unreliable and subject to manipulation and that the Constitution recognizes only duly enacted statutory text as the law.

For constitutional interpretation, he believed in “originalism,” a form of textualism that attempts to determine what the words of the Constitution meant at the time of the nation’s founding. And his focus was much more on the words’ meaning than on the possible intent of the framers. He believed that the meaning of the Constitution was static – or as he put it, in response to arguments in favor of a “living Constitution,” that it was “dead, dead, dead.”

The justice’s insistence on textualism and originalism has had a transformational effect on the law. Substantially as a result of his influence, no advocate today would write a Supreme Court brief about the meaning of a statute that does not focus first on its language, and many people across the political spectrum (myself included) believe that this emphasis on text has been a positive development.

But Scalia’s rhetoric and claimed absolutism have also had some less salutary effects. He claimed that his jurisprudential approach was the one most likely to prevent a judge or justice from imposing his or her own values and preferences. In other words, it was more constraining of judges and more respectful of Congress and state legislatures – and by extension of the people.

But even Scalia could not live up to the absolutist position he espoused. And his rhetoric created a false view of law as always having objectively correct answers even to the difficult questions that the Supreme Court regularly decides.

As part of his insistence on textualism, Scalia famously refused to join portions of opinions – sometimes even particular footnotes – that relied on legislative history.

Except when he didn’t. In Food and Drug Administration v. Brown & Williamson Tobacco Corp., for example, the Supreme Court decided 5-4 that the FDA did not have the authority to regulate tobacco under the Federal Food, Drug and Cosmetics Act.

The majority opinion was written by then-Justice Sandra Day O’Connor, and it was a fiesta of legislative history, including reliance on legislation that Congress considered and rejected, statements made by individual members of Congress when considering legislation enacted both before and after the 1938 passage of the act, statements made in congressional reports and statements made by FDA officials – people who are not even members of the legislature.

But Scalia joined that opinion in full.

Why the inconsistency? Probably because law is not a field of absolutes. It is full of gray. In the FDA case, a pure textual analysis might well have required allowing the regulation. Ironically, the liberals in dissent made precisely that argument. The court could reach its contrary conclusion only by putting the statute in the context of longstanding and evolving understandings of the scope of the FDA’s authority. (For the record, I find the majority opinion more persuasive than the dissent, in large part because of that analysis.)

This inconsistency points to the most troubling aspect of Scalia’s legacy. He pretended that the gray areas do not exist. And his rhetoric on this subject was so insistent, so compelling, so flamboyant, so quotable, that he led not only his ideological compatriots, but numerous ordinary Americans, down the garden path.

He painted a picture of reassuring certainty. If only judges do their job right, the objectively correct answers will emerge.

02:00 - Source: CNN
The Supreme Court's odd couple

But that promise of neutrality is absurd. The hard questions that the Supreme Court decides are hard for a reason. They are hard because the sources that the justices can turn to are inconclusive. A focus on text alone, for example, will often not settle an issue because language is vague or ambiguous. And because the sources are inconclusive, answering the hard questions requires judgment, an understanding of the context in which a provision was enacted, and an evaluation of how the provision operates in today’s world.

The Fourth Amendment’s prohibition on “unreasonable searches and seizures,” for example, is not self-defining. Interpreting it requires judgment about what is reasonable – an inevitably value-laden question – and such value-laden judgment is necessary whether trying to determine what the framers thought was unreasonable or what is recognized as unreasonable today.

Moreover, Scalia’s promise of certainty has a dangerous corollary: When there is disagreement about an outcome, the justices he disagrees with are reaching unprincipled or objectively wrong results. Nor did he leave that conclusion to others to draw. His dissents could be intemperate and frankly insulting of his colleagues, and in recent years, he sometimes even suggested that he believed they were acting in bad faith.

In Obergefell v. Hodges, for example, last year’s decision legalizing same-sex marriage throughout the land, he accused the majority of being “a threat to American democracy,” and he accused the court of engaging in a “judicial Putsch.” He called the majority opinion “a naked claim to legislative – indeed super-legislative – power; a claim fundamentally at odds with our system of government.”

00:59 - Source: CNN
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This is playing with fire. The court’s stature is diminished, particularly in our polarized political climate, when the American people – encouraged by one or more of the justices themselves – come to believe that half of the court, in any given case, (which half of course depends on one’s political views) is necessarily acting in bad faith.

But in fact, there is more than one legitimate jurisprudential approach. We can, and should, argue about these, and we can, and should, disagree about the outcomes and legal reasoning of particular cases. We can even believe that some approaches and outcomes are not legitimate. But Scalia went further. He claimed that only his approach, and by extension, only his conclusions, were legitimate.

His death in the middle of an already overheated election year will undoubtedly lead to increased discussion of the role of the Supreme Court and of how justices should reach their decisions. It would be an ironic but welcome turn of events if the timing of Scalia’s death led to a more honest discussion of the reality that Supreme Court justices legitimately make value-laden decisions and that a discussion of those values and approaches is a necessary and appropriate subject for public debate.

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