Supreme Ghosts, Snake Oil Originalism, and the 2015-2016 Term

By Eric Segall

The Supreme Court of the United States wrestled with fascinating and at times even bizarre questions this term: Could Texas pass non-medically necessary laws regulating many of its abortion clinics out of existence (short and easy answer, no). Could Texas use race as a "factor of a factor of a factor" for roughly a quarter of its entering class when it previously used whiteness as a 100% factor to exclude all non-white students (hard and complex answer, yes). Could President Obama use the historically large deportation discretion of the Executive Branch to allow non-citizen parents of lawful children to openly perform jobs Americans refuse to do (Court was tied so for now, no). Does the free speech clause of the First Amendment prohibit over twenty states from requiring its workers to pay partial union dues to avoid freeloader problems (Court was tied so for now, no). And, in the most ridiculous Supreme Court case in a long time (well since last term's King v. Burwell), do religiously affiliated not-for-profit companies have the right to refuse to tell the government that they want an exclusion from federal requirements intended to prevent unwanted pregnancies even if they are guaranteed the exclusion once they actually ask for the exclusion (answer, stay tuned).

Although the Supreme Court faced these nationally important issues over the last nine months, this term will likely be remembered mostly for the death of Justice Antonin Scalia in February. His absence loomed large both on and off the Court. 

With the Senate refusing to even let Merrick Garland in the door for a hearing, the Justices had to live with an evenly-divided eight person Court for longer than usual. They seemed to deal with Scalia's absence better than most liberal pundits and commentators, however, who were left to ponder and dream about the possibility of liberals dominating the Court for the first time since most people reading this essay can remember. Personally, I was more sanguine about the depleted Court, thinking that making it harder for either side to push its own political agenda on an institution composed of life tenured judges educated at Harvard or Yale and fed at Georgetown dinner parties might be something folks of all political persuasions should actually get behind. If Trump is elected, just watch both sides quickly flip flop on the "need for nine."

Meanwhile, pundits and commentators, as well as Scalia’s former law clerks, and scholars of all stripes, debated the late Justice's life and legacy. Now that almost five months have passed since his death, I hope it is appropriate to try and be as honest as possible about the most "ludicrously overrated" Supreme Court Justice of his generation who, in the words of Eric Posner "tragically thought he could take politics out of judging but only made things much worse" Meanwhile, Judge Posner has been unsparing in his criticism of Scalia. The rest of this essay will not be for the feint of heart.

Justice Scalia was of course best known for his frequent rants about how important text and history (read original meaning) are to judges who have to decide constitutional law cases. But the truth is that he did not come close to voting in an originalist fashion during his long career. I have set forth the proof of this accusation in long version here, and Judge Posner and I sketched it more briefly on this blog here. 

In the areas of affirmative action, freedom of speech generally and campaign finance reform specifically, federalism, gun rights, takings, standing, and voting rights, among many others, Justice Scalia voted to strike down laws where neither the text nor the original meaning behind the text supported his votes. Scalia once said he was a "feint-hearted" originalist but later walked that back and then said he was an "honest" originalist. The truth is that he was a snake-oil originalist who sold a product he did not use himself.

One scholarly response to the argument that Scalia constantly voted in a non-textualist, non-originalist way through huge swaths of constitutional law is that in many of the areas of law listed above, there are plausible, even if not persuasive, originalist arguments in support of Scalia's votes (arguments excavated by extremely motivated law professors, not Scalia himself). 

Even if there are such arguments, which I seriously doubt, such speculations were not available to Scalia, who also spent much of his career arguing that life-tenured federal judges should not invalidate decisions by other political actors absent clear text or strong historical evidence. For some so-called New Originalists like Randy Barnett or Ilya Somin, who openly admit that they believe in strong judicial review by, in Scalia's words, "a committee of nine unelected lawyers," maybe reasonable historical evidence may be enough to sustain judicial aggression. But Justice Scalia never argued for that position. Instead, in most of the areas of law listed above, he simply either ignored or mischaracterized historical evidence while often stridently accusing other Justices of playing fast and loose with the rules of the constitutional game.

One of the most important cases this term demonstrates Scalia's hypocrisy. In his thirty years on the bench, Justice Scalia voted to strike down every affirmative action  plan he ever saw, and no doubt he would have done the same in Fisher v, Texas. Scalia always argued that the Constitution is color-blind, and thus the government using racial criteria to foster diversity and equality was constitutionally indistinguishable from the government using racial criteria to completely exclude an entire race of people from a government benefit. But at no time in his career did Scalia try to justify this strong policy preference with reference to the original meaning of the text of the Fourteenth Amendment. Given the ambiguous text of the that Amendment (which does not mention race) and the fact that the Amendment did not stand for color blindness from 1868-1954, and given Scalia's dislike of the "living Constitution," when exactly did the meaning of the 14th Amendment change? Scalia never provided an answer, which would be fine for "living constitutionalists" but not for someone who thinks the Constitution is frozen in time.

One former Scalia clerk claims he presented originalist evidence to Scalia that the ratifiers would have thought affirmative action to be constitutional (or at least would not have deemed it unconstitutional) only to have that data completely ignored. This tactic of overlooking unhelpful historical evidenced was the hallmark of the man who yelled that the Constitution is "dead, dead, dead" while consistently voting to strike down laws based on the Justice's very current perspective on what the Constitution should mean today.

Justice Thomas, who seemed very lonely this term often dissenting all by himself, ended his dissent in the abortion case Monday with a quotation from the man whose shadow hung over the term so darkly: "The majority’s embrace of a jurisprudence of rights-specific exceptions and balancing tests is “a regrettable concession of defeat—an acknowledgement that we have passed the point where ‘law,’ properly speaking, has any further application." The constant finger pointing and chest thumping by Scalia and Thomas over the years that they applied "law" but the other Justices were doing something else marginalized both of them throughout their careers. Constitutional law is now and has always been about the clash of values. Maybe Thomas wouldn't have been so lonely this term, and maybe Scalia would have authored a few more majority opinions, if they had been more transparent about their own values.

And, speaking of values, as usual Justice Kennedy's values and the Court's values were one and the same. In the two biggest cases of this year's term (affirmative action and abortion) Justice Kennedy slid to the left in ways that would have prompted personal rebukes from Justice Scalia heard from Stone Mountain, Georgia to the curvaceous slopes of California. With Justice Kennedy in the majority this term over 97% of the time, we are again (actually we never left) living in Justice Kennedy's America, and gone are the good old days when Chief Justice Roberts jumped ship to save both the Affordable Care Court and the legacy of his, excuse me, of the Kennedy Court.