Justice Scalia has rightly been described as an influential Justice, but the nature of that influence needs to be put into perspective, and the desirability of that influence needs to be questioned. Recent commentary mentions Justice Scalia’s influence in advocating for originalism, a theory of constitutional interpretation that would honor the original text of the Constitution and its meaning as understood at the time of the text’s adoption. There is no question that Scalia had a substantial effect on the debate in the academy regarding the proper mode of constitutional interpretation. He did not initiate the debate. His intervention was preceded among other things by the writing of Raoul Berger and the pressing of originalism by Edwin Meese, the Attorney General in the Reagan Justice Department. Nonetheless, Scalia was a great writer and rhetorician. His advocacy had a profound effect on law students and legal scholarship.
But his influence on the Court is more difficult to assess. Of the eight other Justices on the Supreme Court, only one is an originalist, though all of them believe the original meaning of the text is one source of constitutional interpretation alongside many others. Justice Thomas is an originalist, but not a Scalia convert. Many argued in many of the original years of Justice Thomas’ tenure on the Court that he was a lap dog of Justice Scalia. But emerging evidence shows that Justice Thomas had more influence on Scalia than the other way around. He wrote drafts of opinions that outflanked Scalia on the right, and Scalia often reconsidered his view and joined a Thomas opinion. It would be surprising if Scalia’s advocacy did not shape opinions of the conservative justices. Yet one has to wonder whether Scalia’s influence on this score was limited by the well-known nastiness of his dissents. There are reports of his being liked by Justices Ginsburg and Kagan, but other reports about negative reactions to the acid character of some of his dissents.
Beyond his influence, the sagacity of Justice Scalia’s originalism deserves to be questioned. On his theory, what deserves to be preserved is the likely specific application of a text at the time of its adoption. So in interpreting the equal protection clause, the question for Justice Scalia was how the clause would be applied at the time of its adoption, not the general principle of equal protection. On this understanding, as has been much discussed, Brown v. Board of Education was wrongly decided. On originalist principles, it would still be constitutional to racially segregate the schools. In response to this, Scalia said he was a “faint hearted” originalist, was not a “nut,” and would follow precedent. Later he regretted saying that he was a “faint hearted” originalist. Nonetheless, whether he backed off the theory (when the results were obviously unacceptable) or not, originalism is deeply flawed. Under that theory, not only could government segregate the schools, government could refuse to hire women on the ground that their proper place is in the home, and free speech could generally be limited because it was “dangerous or offensive.” It is extremely doubtful that the Framers thought originalism should be the exclusive mode of interpreting the Constitution and even if they so thought, one would wonder why we would interpret the meanings of concepts like liberty and equality through the eyes of 18th century white male agrarian slave holders.
Finally, it needs to be said that Justice Scalia did not follow originalist dictates when it suited his conservative philosophy. He claimed that the Constitution opposed affirmative action; he twisted the Civil War amendments to limit their force; he urged many interpretations that would strengthen the hand of the Republican Party without evidence of the original understanding. Most seriously, he voted to determine the outcome of the Presidential election in Bush v. Gore. When he was routinely criticized for this, he said “get over it.” That is a response, but it is not an argument. It reflected an arrogant assumption of power that no lapse of time or attempt to silence should cause us to forget.