It was 2005. Somehow I had wangled an invitation to a speech by Antonin Scalia, associate justice of the Supreme Court, in Balboa Park. I arrived late. His Honor had already begun speaking.
From the back of the packed auditorium, I spied two empty seats front and center. Using the body language of one who pretends he belongs, I walked down the aisle with my companion. We sat down right in front of the lectern.
Scalia and his big baritone paused. He looked quizzically at me; his security detail did the same. Was I a crasher or a crank? Each silently concluded I was harmless. Scalia resumed his remarks.
Antonin Scalia has sat on the U.S. Supreme Court for 29 years. During his tenure, he has become a sort of hero to the right, and a bête noire to the left. His vivid and sometimes-caustic dissents in recent weeks made national news as the court grappled with Obamacare, same-sex marriage, and the death penalty.
I doubt Scalia cares about what is said about him in The Atlantic and The New Yorker. But Scalia deserves better than most of the politically correct vitriol that is spilled about him in the media. His loudest critics should treat his work more seriously and Scalia less like their favorite punching bag. If they did, the public would better understand the work of the federal courts.
Scalia’s jurisprudence starts and ends with what he calls textualism. Textualism is the idea that the federal courts’ job is to interpret law according to what it says and fairly implies, not improvise on it to produce what they deem to be socially desirable results.
Laws that are dumb or unfair cannot be rewritten or repealed from the bench (unless they’re unconstitutional); only the people can rewrite or repeal them, via referenda and their representatives. Any law student who took constitutional law and federal courts is familiar with these ideas, which ought to be unremarkable.
Textualism leads Scalia to predictable results in many cases. Let us take two recent ones: Obergefell v. Hodges (a same-sex marriage case) and Glossip v. Gross (a death penalty case).
Scalia detects no clause in the Constitution that would enable the federal courts to dictate to the voters or legislators how they must define marriage. And so he doesn’t discern any constitutionally guaranteed right to same-sex marriage.
Scalia points to parts of the Constitution that explicitly contemplate the death penalty for certain crimes. And so he sees no basis in the Constitution for abolishing the death penalty.
He believes these and many other matters are best left to the people, who have already approved same-sex marriage and abolished the death penalty in multiple states, without the need for federal court action.
“But he’s a right-wing nut,” cries the chorus of Scalia haters. “Textualism is just an excuse for his brand of Neanderthal law-and-order conservatism.” This is not true.
Scalia cast the deciding vote (or wrote for the court) in multiple cases that reached “liberal” outcomes. Texas v. Johnson (striking down as unconstitutional laws that banned burning the American flag), and Crawford v. Washington (disallowing the use of un-cross-examined hearsay in criminal prosecutions) are examples.
He also dissented from “conservative” outcomes reached by his colleagues in cases limiting the amount of punitive damages that juries may permissibly award in civil cases (BMW of North America, Inc., v. Gore), disallowing tort suits against civilians by persons injured in active military service (United States v. Johnson), and criminalizing use of a firearm by a defendant whose use of the firearm was to trade it for drugs (Smith v. United States).
The court’s recent decisions in the same-sex marriage and death penalty cases brought out the familiar chorus of Scalia haters on the airwaves and at dinner parties. “He’s so arrogant,” fumed a colleague, a partner in a large law firm. I asked him whether he’d ever met Scalia or seen him in action. He hadn’t.
At bottom, Scalia hatred seems founded on one thing: the belief that federal judges ought to produce results that the Scalia hater finds pleasing, whether the law as written warrants it or not. However sincerely held, this belief is irreconcilable with either an honest interpretation of the federal Constitution or a sensible way of construing it in a given case.
I practice in the area of commercial litigation, in which written contracts often are the subject of hot dispute. I’ve seen contracts that were badly written and absurdly self-contradictory. (I recall one that provided two mutually exclusive means of dispute resolution: a lawsuit in the federal courts, and binding arbitration.)
No judge would disagree over how disputes over such contracts must be settled: by construing the contract according to what it says and fairly implies, however that might vary from what one party or the other wishes it said, and without rewriting it. That a federal judge sworn to uphold the law would construe the Constitution and statutes using a similar approach seems only sensible.
I’m a lifelong Democrat. As a voter, I had no use for Presidents Reagan or Bush. I voted “no” on Proposition 8, and I’m for abolishing the death penalty in every state.
But whether he votes the way I like or not, Scalia views himself as a judge, not a legislator. He honestly interprets the laws. He wants others in his position to interpret them honestly, too. What’s wrong with that?