An Inconsistent Jurisprudence: The Doctrinal Spectrum

This chapter explores Justice Antonin Scalia’s constitutional jurisprudence across the broad range of issues he addressed. The chapter shows that he contradicted his originalist jurisprudence in interpreting the First Amendment (both its free speech and religion clauses) as well as the Fourth, Fifth, and Eleventh Amendments, and that he did the same in construing a variety of other constitutional doctrines including those involving standing, the treaty power, affirmative action, the Commerce Clause, the Fourteenth Amendment, and the U.S. Supreme Court’s own appellate jurisdiction. The chapter argues that he frequently twisted, ignored, and abandoned his jurisprudential principles and methodologies he proclaimed and that the principal consistency his decisions and opinions reveal was his commitment to his own ideological goals and values.

An Angle of Vision

This chapter discusses the variety of types of cases Justice Antonin Scalia heard on the U.S. Supreme Court and notes their variety as well as the fact that in a few areas Scalia took originalist positions that brought results commonly regarded as “liberal,” such as his interpretation of the Confrontation Clause. The chapter then turns to the bulk of the cases where he supported “conservative” results. It points out that he used his originalist jurisprudence vigorously to defend certain positions that involved his own most intensely held personal values (those dealing with abortion, gay marriage, the death penalty, and assisted suicide), and it suggests that his originalism may have been designed to justify his views on those issues. The chapter then suggests that the true test of his jurisprudence and methodology lay not in his actions in those cases but rather in the more general run of cases where he applied his jurisprudential principles inconsistently, failed to apply them at all, or actually rejected them. That large and final category of cases constituted the majority of his decisions and opinions, the chapter argues, and it provides the best ground for testing his jurisprudential claims and ultimately identifying the true nature of his jurisprudence and the significance of his judicial career.

An Abandoned Jurisprudence

This chapter examines Justice Antonin Scalia’s views on Article III of the U.S. Constitution and the nature of the federal judicial power that it established. One of Scalia’s principal goals was to limit severely the power of the federal courts and to undo many of the decisions of the Warren Court, including their ability to create implied private causes of action, and the chapter argues that in pursuing that goal Scalia departed from originalist views and that the arguments he advanced were themselves self-contradictory. The chapter shows, moreover, that originalist doctrines and historical practices actually contradicted his claims about limits on the federal judicial power. Further, the chapter argues that his views were based not on originalist ideas but on the twentieth-century positivism associated with Erie Railroad v. Tompkins, and that in Sosa v. Alvarez-Machain, he explicitly acknowledged that his positivist ideas were not the ideas of the Founders. The chapter concludes that in this area, Scalia simply abandoned originalism and did so, once again, to achieve his own ideological and political goals

A Manipulative Jurisprudence: Unprincipled and Expedient Reasoning

This chapter offers a more detailed analysis of some of Justice Antonin Scalia’s most striking inconsistencies. Its first section addresses Scalia’s use of James Madison as a principal and particularly prestigious originalist source, especially his essays in the Federalist Papers. The chapter examines in particular his inconsistent uses of Madison’s writings in such cases as United States v. Windsor and Morrison v. Olson and in his attitude toward affirmative action and Madison’s idea of the “extended republic” in his decisions on the Eleventh Amendment. The chapter shows that he used Madison when his writings supported Scalia’s own views but ignored him when they contradicted those views. The chapter’s second section examines two of Scalia’s most dubious actions on the Court, joining the five-justice conservative majority in Shelby County v. Holder and writing a deeply flawed opinion for the Court in Boyle v. United Technologies. The chapter argues that the two cases show Scalia at his most inconsistent, contradictory, and willful in serving his ideological and political goals, in the first case voiding a critical provision of the Voting Rights Act of 1965 and in the second expanding federal common law to protect military contractors from tort suits.

A Subjective Jurisprudence

This chapter examines Justice Antonin Scalia’s jurisprudence dealing with the U.S. Constitution’s two structural axes, separation of powers and federalism. It argues that both constitutional principles are general, largely indeterminate, and easily manipulable and that Scalia construed them in light of his own subjective goals and values. He was determined to use them instrumentally to expand executive power, limit Congress, and severely restrict federal judicial power. The chapter argues that Scalia regarded separation of powers as more critical and important than federalism because it was better suited to serve his political and institutional goals and that, in joining the Rehnquist Court’s “federalism revolution” in the early twentieth century, he contradicted the position he had taken in his Senate confirmation hearing about the propriety of the Court giving special deference to Congress on federalism issues. Finally, the chapter shows that before he went on the Court, Scalia had made it clear that he viewed both separation of powers and federalism as principles that could and should be interpreted to serve the practical policy goals of the political right.

The Methodological Fallacy

This chapter begins the book’s basic conclusions about the reasons for Justice Antonin Scalia’s enduring historical significance in terms of understanding American constitutionalism. The first reason, the chapter argues, is that his jurisprudence and judicial career demonstrate his belief in a pervasive “methodological fallacy,” the common belief that there is some formal interpretive methodology that is capable of tightly constraining or eliminating judicial discretion and generally providing “correct” interpretations of the U.S. Constitution. Scalia claimed that his jurisprudence did this, but his career demonstrated both that his jurisprudence was deeply flawed and that his own actions were largely guided not by “objective” originalist sources but by his own ideology and politics. The chapter argues that one major reason for Scalia’s enduring historical significance is that it suggests the true nature of American constitutionalism, the fact that the Constitution is incomplete and in many ways indeterminate and that there is no formal methodology capable of producing “correct” answers to most or all disputed constitutional questions.

An Ignored Jurisprudence: Bush v. Gore

This chapter examines Justice Antonin Scalia’s actions in the notorious case of Bush v. Gore. There, five conservative justices voted to stop the recount of the Florida vote in the election of 2000 and make George W. Bush president. The chapter outlines the position of the justices and focuses on the two opinions that Scalia joined, a per curiam for seven relying on the Equal Protection Clause and a concurrence by Chief Justice William Rehnquist for three of the seven based on Article II. The chapter argues that both of those opinions contradicted virtually all of Scalia’s jurisprudential principles, including those involving standing and the political question doctrine. Further, it argues that both of those opinions—together with the solo opinion Scalia wrote supporting a stay of the Florida recount and certain other contextual factors—demonstrate that Scalia’s actions in the case were deeply personal and inspired by his intense desire to see the Republican candidate win the election.

The Nature of American Constitutionalism

This chapter examines the third reason for Justice Antonin Scalia’s enduring historical significance for an understanding of American constitutionalism. The chapter argues that he was a man of his times, who adapted “conservative” politics and values to meet what he saw as the abuses of the Warren Court and twentieth-century liberalism. To counter broad assertions of federal legislative and judicial power, he developed doctrines to limit both of those branches, and to counter liberal attempts to limit presidential power after Watergate, he developed doctrines to expand the power of the executive. The chapter criticizes his embrace of positivism and his ideas about both law and the rule of law. It also argues that the nature of “conservatism” has evolved and changed over the decades and that Scalia’s jurisprudence broke with the conservative jurisprudence of the pre-Reagan era. The chapter concludes that Scalia’s jurisprudence and career demonstrate—contrary to his central jurisprudential claims—the third fundamental characteristic of American constitutionalism, its truly “living” nature.

The Fusion of Jurisprudence and Politics

This chapter explains the second reason for Justice Antonin Scalia’s enduring historical significance in understanding American constitutionalism. The chapter argues that he was closely allied with the Republican Party and shared the values of the social groups that constituted the party’s base. His jurisprudence and judicial career reflected that fact and did so to an unusually high degree, implementing the conservative agenda in such areas as civil rights and cases involving the Federal Rules of Civil Procedure, all designed to handicap plaintiffs across the board, especially those who sued governments and corporations. Thus, the chapter argues that Scalia’s jurisprudence and career exemplified a second fundamental characteristic of American constitutionalism, the close and informing relationship that exists between personal politics on one hand and formal methodologies and theories on the other. In his books, articles, speeches, and opinions, Scalia became a public celebrity and gave voice to virtually every theme in the conservative coalition’s rhetoric, and in the great majority of the cases he supported results consistent with the goals and values of that coalition.

An Arbitrary Jurisprudence: Heller

This chapter examines Justice Antonin Scalia’s highly controversial opinion in District of Columbia v. Heller construing the Second Amendment and holding that the U.S. Constitution establishes an individual right to possess firearms. Scalia held his opinion up as an example of constitutional originalism, and the chapter argues that it was indeed exemplary—but for reasons wholly contrary to those Scalia assumed. Rather than demonstrating the value of originalism, Heller shows that originalism is an inadequate and easily manipulable methodology. The chapter argues that Scalia’s opinion was arbitrary both in the source materials it cited and those it ignored and that it was based not on history but in Scalia’s personal love of guns and hunting. More broadly, the chapter argues that Scalia’s opinion shows that originalism is a rhetoric of constitutional change and that the Court’s decision in the case was the result of the half-century campaign of the National Rifle Association to work through the Republican Party to create an individual right to possess firearms based on the Second Amendment.