One of My Favorite Judges: Constitutional Interpretation, Democracy and Antonin Scalia

You cannot get a sense of Scalia as a judge unless you have some idea of how blunt and biting and downright funny he could be. This is a quality I very much like. Start with a few examples from his judicial opinions on the top U.S. court:

“It is one of the unhappy incidents of the federal system that a selfrighteous Supreme Court, acting on its members’ personal view of what would make a “more perfect Union” (a criterion only slightly more restrictive than a “more perfect world”) can impose its own favored social and economic dispositions nationwide.”⁽⁵⁾

“Words no longer have meaning if an Exchange that is not established by a State is ‘established by a State’.”⁽⁶⁾

“We should start calling this law SCOTUScare … [T]his Court’s two decisions on the Act will surely be remembered through the years … And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.”⁽⁷⁾

Finally, I will relate a personal anecdote. It was 1999 and I was working at a very good law school in Dunedin, New Zealand. A colleague and friend from a different New Zealand law school had organized a conference in Auckland and had invited Justice Scalia, who would be attending. I went too. Now I could tell you how, of all the judges speaking at that conference, it was only Scalia who volunteered for a special question and answer session with the Auckland law school students, and who stayed until there were no more questions. Or I might relate how much fun it was to find myself in a bar alone with my conference organizing friend, and with Scalia, with the latter making fun of his own short size and telling some great jokes while the three of us had a drink or two. But instead let me recount the session I witnessed at that Auckland conference, where Justice Scalia was on the same panel as a then Supreme Court of Canada Justice. The Canadian judge went first, and gently criticized as ‘ancestor worship’ any form of constitutional interpretation that relies on some form of originalism, preferring what we might today label a ‘living tree’⁽¹⁸⁾or ‘living Constitution’ interpretive approach. With hundreds of lawyers and judges in the room Scalia went up the podium when his turn came, put down his prepared talk, and proceeded to rebut the Canadian judge’s claims, point by point. He was scathing and unremitting. I still recall Scalia looking at the Canadian judge and saying something along the lines of: “Of course I have no doubt that in Canada the judges have superior moral sentiments and feelings to mere plumbers or secretaries. But let’s be clear that this is what my Canadian friend’s approach boils down to – feelings, nothing more than feelings. In the US, those of us who are originalists on our top court do not believe we have superior moral and political feelings to everyone else.”

It was a tour-de-force. I suspect the experience was also something of a shock for a top Canadian judge as in my native Canada, and I daresay in Australia, New Zealand and Britain, the top judges get used to being treated as lesser Gods, unctuously deferred to (not least by law students and lawyers who sometimes do so in ways that might qualify as ‘Uriah Heepesque’), and not often criticized in public by anyone – and especially not by barristers, top lawyers, lower level judges, and rarely even by politicians for that matter. It struck me at the time that it would be a lot better and healthier for a legal system (especially those with a bill of rights where judges have more scope to gainsay the elected legislature) if top judges did have to face such public criticism – and I include vigorous criticism – on a more regular basis, and hence have to defend their views. Certainly Scalia appeared perfectly at home taking as much as giving. In fact, he seemed to revel in the vigorous exchange of views. I doubt there existed a kitchen anywhere whose heat could have forced Scalia out.

Of course that sort of combative style and attitude makes it very unlikely that Scalia would excel at consensus building, in the way that, say, Justice Brennan did on the Supreme Court of the United States.⁽¹⁹⁾ And indeed he did not. Scalia excelled instead at the biting dissent (including dissenting alone). Alan Morrison and Robert Stein put that same general point in these two ways:

Whenever one dissents, whether in a judicial decision or a faculty committee, a choice must be made between attempting to narrow the majority’s decision or pointing out its potentially apocalyptic consequences. Justice Scalia has chosen the second option as his preferred choice in most cases.⁽²⁰⁾

As an ideologue, Justice Scalia preferred his subjectively “correct” answer to the most mutually agreeable answer. Justice Scalia cites his adherence to originalism and textualism as the reason for his inability to form coalitions. Another, perhaps pettier, view suggests that Justice Scalia isolated himself by attacking his colleagues … [though] Scalia responded, “You really think my colleagues are going to mess up American law because they are peeved at me?….”⁽²¹⁾

And I am myself much more partial to that ‘great dissenter’ sort of judge. Put aside for the moment the more substantive issue of what sort of judicial philosophy one wants from his or her ideal top judge and focus on the periphery, on how one wishes a top court judge to respond to other top judges who appear not to be convinced by your ideal judge’s reasoning in some case. In that situation I prefer my judicial common law world to be broadly inhabited by dissenting Scalias rather than negotiating, coalition-building Brennans.⁽²²⁾ In Australia, where I live and work, there are two very good recent examples of big dissenters on the country’s top court, the High Court of Australia, both of whom are now retired. One is Dyson Heydon. In his last couple of years on the High Court he dissented at a very high rate indeed.⁽²³⁾ Another is Michael Kirby, also someone known for dissenting. In terms of their approaches to constitutional interpretation and public law decisionmaking more generally, the substantive issue, I am very much a fan of Heydon and a critic of Kirby.⁽²⁴⁾ But I nevertheless recognize that the odd Kirby or two every century on a top court might be a good thing⁽²⁵⁾ – for John Stuart Mill free speech type reasons related to the benefits of being criticized and sharpening your own arguments as well as on other grounds too. Likewise with Lord Denning, to take a British example of a great dissenter, and irrespective of whether you are an admirer of the Denning modus operandi or not.⁽²⁶⁾

Turn now from Scalia the biting, funny judge not afraid to file (or perhaps unleash) a dissenting opinion and consider his approach to constitutional interpretation. This is a top judge who once said: ‘I am not so naïve (nor do I think our forbears were) as to be unaware that judges in a real sense “make” law. But they make it as judges make it, which is to say as though they were “finding” it – discerning what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be.’⁽²⁷⁾And extracurially he claimed that:

Every issue of law resolved by a federal judge involves interpretation of text – the text of a regulation, or of a statute, or of the Constitution. Let me put the Constitution to one side for the time being, since many believe that that document is in effect a charter for judges to develop an evolving common law of freedom of speech, of privacy rights, and the like. I think that is wrong – indeed, as I shall discuss below, I think it frustrates the whole purpose of a written constitution.⁽²⁸⁾

The second problem is at least as telling. Real life OPM adherents may tell us that the meaning of some provision in the Constitution depends upon what some hypothetical, well-informed, reasonable person at the time (call him ‘Jim’, or probably back then ‘James’) would have taken the words to mean. But how would this James back then have gone about interpreting the legal text, remembering that he is not some literalist, strict constructionist and that the bare words – as Stanley Fish continually shows – will not often, if ever, be constraining? Would this James have sought the real-life actual authors’ intended meanings of the text (since fictional James could not have been seeking his own preferred meaning)? But if fictional James is looking at the intended meanings of the real life authors then we, today, might as well cut out this made up Jamesian middle man and look at the real life ratifiers’ and framers’ intentions ourselves. Or would the fictional James, in all those penumbral or hard cases, have constructed his own fictional, hypothetical, reasonable person James II? And likewise James II would have constructed James III ad infinitum?

So given these two core problems with OPM originalism why is it that all originalists are not (or no longer are) authors’ intentions or Original Intended Meaning or old originalists? Certainly Scalia unequivocally rejects the relevance of the real life ‘drafter’s intent as the criterion for interpretation of the Constitution’.⁽³⁴⁾ Larry Alexander, after dismissing as wrong-headed two other concerns about original intentions originalism, concedes that there is a very real problem with this OIM interpretive approach. It is the group intentions problem, or as Alexander put it in the passage above, the aggregation problem. How do you deal with legal texts that were collectively authored? It is this, argues Alexander, that pushed people away from OIM originalism into the arms of OPM originalism. By positing but one hypothetical person back at the time of the law’s passage you niftily avoid the group intentions problem. But as noted above, this cure is a good deal worse than the disease. It is worse than the group intentions disease because while attributing a single intention to a group is a problem, overwhelmingly it is not an insuperable one (while the OPM problems are). Certainly groups can and do have shared intentions (as any symphony-goer can attest, or any team sports fan can too after watching his favorite team execute a complicated play). In addition, albeit more so in the Westminster parliamentary world than when it comes to the U.S. Congress, there are evolved practices such as a Minister’s Second Reading speech before the passage of a government Bill that allows us most times to say that these – the Minister’s intentions – are what all who voted in favor intended.⁽³⁵⁾

Within the broad church that is originalism, then, I think Scalia was in the wrong denomination. He had it wrong. He should have sought the meaning of the US Constitution in the actual intended meanings of the real life people who framed and ratified it, not in ‘how it was originally understood’⁽³⁶⁾ by some non-actual person at the time. He ought to have sought his external interpretive constraints where Alexander and Fish and Kay and Ekins seek theirs.

However, let me for a moment put to one side that intra-familial originalism debate and focus instead on the differences originalists (broadly speaking) have with non-originalists (broadly speaking). I want to do this because my goal in this article is to explain why I liked Scalia as a judge. Yes, as I set out in Part I, he was funny and biting and blunt and a great dissenter, and I liked that. But in this Part II it is Scalia’s approach to constitutional interpretation that is our focus. And the question one needs to ask of non-originalist approaches to constitutional interpretation – which runs the gamut from ‘living tree’ or ‘living Constitution’ approaches through Dworkinian Herculean ‘best fit’ approaches⁽³⁷⁾ through moral reading approaches and even takes in Posnerian ‘can’t help it’ or ‘don’t invalidate unless it fails the puke test’ approaches⁽³⁸⁾ – is from where do the external constraints come? Given the fact of reasonable disagreement, a disinterested outside observer would not find a top judge’s claim to be constrained by what is most moral, or by what best fits with the settled materials, or by what is most in keeping with changing social values, or by asking what makes him want to puke to amount to mind-independent constraints on that interpreter.⁽³⁹⁾ With these non-originalist interpretive approaches, to say there is an external-to-you constraint on the answer you have to reach would not be convincing. Hence, if you worry about judicial usurpation or judicial activism, and very much desire the interpreting judges to be constrained by something outside of their own moral and political and pragmatic sensibilities, then non-originalist approaches will not obviously be all that appealing to you.

Originalism, by contrast, asks you to look to external historical facts to find your answer, and so that answer might (and sometimes will) be one you dislike morally or politically or on efficiency grounds. Put differently, if we are to put much stock in rule of law values then the answers dictated by the legal norms must sometimes differ from the answers the point-of-application interpreter (the judge) would like them to be if he or she were legislating or writing a constitution from scratch. Non-originalist interpretive approaches make this distinction – between A) what the most plausible interpretation of the legal text happens to be and B) what I, the interpreter, would like the answer or outcome to be – extremely precarious. Indeed, Ronald Dworkin found it notoriously difficult to point to U.S. Supreme Court decisions that were in his view rightly decided (according to his own interpretive theory, or theories) and yet which had reached decisions he thought were morally and politically wrong.⁽⁴⁰⁾ If, like me, you believe the distinction between A) and B) is a crucially important one in a democratic society,⁽⁴¹⁾ then any non-originalist interpretive theory will be less attractive to the extent you think it undermines the distinction and gives judges significant leeway (from an outside observer’s vantage, if not seen or admitted by the interpreting judges themselves) to impose their own preferred outcomes – to legislate from the bench.⁽⁴²⁾

But rather than read how I put the case against non-originalist interpretive approaches, here is small taste of how Scalia himself puts it:

It seems to me that a sensible way of approaching this question is to ask oneself whether the framers and ratifiers of the Constitution (or of the Fourteenth Amendment) would conceivably have approved a provision that read somewhat as follows:

In addition to the restrictions upon governmental power imposed by the Bill of Rights, the States and the federal government shall be subject to such additional restrictions as are deemed appropriate, from time to time, by a majority of the Judges of the Supreme Court.

To pose that question is to answer it.⁽⁴³⁾

My larger point is that whenever we are talking about a relatively benevolent liberal democracy (so not, say, apartheid South Africa), I much prefer Scalia’s approach to constitutional interpretation to the various non-originalist alternatives. Of course I think he’s in the wrong denomination of originalism. But I like his approach miles better than all the ‘living tree’/‘living Constitution’ and moral reading-type alternatives that clearly dominate, say, the European Court of Human Rights, the Supreme Court of Canada in all its Charter of Rights litigation, many of the recent SCOTUS majority opinions, and even some of the recent constitutional interpretation in Australia, where they lack any sort of national bill of rights and so you might have hoped for more.⁽⁴⁸⁾

So in addition that is another reason I liked Scalia as a judge. He is, or rather was, considerably better than almost all of the alternatives today on offer. As a Scalian might say, it takes a theory to beat a theory, and the burden is not to prove originalism is flawless or perfect but simply to show it is better than the alternatives.

To start this Part III it might be desirable to make a confession. I think the best way, or rather the least-bad way, to make large scale social policy decisions is by counting all citizens or residents equally and voting for representatives. These elected parliamentarians or members of Congress will then in turn have an equally weighted vote as to whether their jurisdiction might, say, change the status quo when it comes to abortion, euthanasia, same-sex marriage, and so on. I very much believe it to be a bad thing when unelected judges make these calls, as they regularly have and continue to do, including in the United States and my native Canada.⁽⁴⁹⁾ Scalia was against this trend towards ever more powerful judges or judicial usurpation. He liked democratic decision-making, and did not believe that the U.S. Bill of Rights had an ever-expanding scope or reach or ambit, one that allowed more and more issues to be resolved by unelected judges like him. No, Scalia believed that the inroads into parliamentary sovereignty (or into what the elected branches could and could not do) were locked in at the time the constitutional provision was adopted. That is what originalism delivers, a locked-in new floor below which the legislature may not descend but above which reform or change depends on voting and letting-the-numbers-count. The reach of some enumerated list of rights, for Scalia, did not after adoption grow or expand its reach or metaphorically become ‘alive’ based on what nine ex-lawyer top judges happened to believe were changing social values.

The people are not stupid. When the primary function of the Supreme Court was thought to be interpretation of text and identification of legal tradition, the people were content to have justices selected primarily on the basis of legal ability. But they know that Harvard Law School, Stanford Law School – yea, even Yale Law School – do not make a man or woman any more qualified to determine whether there ought to be a right to abortion, or to homosexual conduct, or to suicide, than Joe Six Pack.⁽⁵⁰⁾

This, then, is yet another reason for my praising Antonin Scalia the top judge. He had more trust in the voters and the democratic process than the vast preponderance of other common law top judges operating in a system with an entrenched bill of rights.⁽⁵⁵⁾

It should be plain to all readers by now that I was a fan of Scalia the judge. I would gladly have put his clone on to the High Court of Australia, or on to the Supreme Court of Canada, or indeed back on to the Supreme Court of the United States. By my way of thinking it is extremely unlikely that Scalia’s replacement will measure up to the judge he or she is replacing – not in terms of wit, humor and quality of dissents; not in terms of the interpretive theory this replacement brings to the job; not in terms of a core respect for the voters’ choices; and notwithstanding whether the replacement is nominated by a Democrat or a Republican.

By contrast, most law professors in the U.S. – and possibly more again in Canada, the U.K., Australia and New Zealand – will see just about any replacement for Scalia as an improvement. A major reason for that, in my view, is that many law professors quite like a solid measure of judicial activism or ‘social progress through the unelected judges’ and are not overly trustful of the choices that would be made by a majority of their fellow citizens.⁽⁵⁶⁾ Call this preference one for a modern day form of aristocracy if you wish. But if I am right, and this view pervades the legal academy, then it would be a brave punter who bet against its being passed on to the next generation of lawyers, probably in even more virulent form.

I find that prospect pretty depressing. I think Scalia did too.