Scalia’s Successor Needs His Virtues

In addition to a commitment to enforcing the Constitution as written, the successor to Justice Antonin Scalia should possess two of his virtues.  First, he or she must unflinching in pursuit of principle even in the face of the rewards that often come from abandoning it.  The highest honors from our legal and academic establishment all go to justices who begin or  drift left. Justice Scalia, of course, was impervious to all such temptations.

But a justice also faces a temptation to decide law in favor of the policy preferences of the team who nominated him. Law, however, has no team, and Justice Scalia knew it. He wrote opinions in cases from flag burning to detention of enemy combatants that conflicted with the sentiments of many of his fellow conservatives.

And it was clear from the time  of his appointment that on the Court Scalia would be a member of only one party—the party of law.  In the academy, he showed his independence by dissenting on issues of central importance to his colleagues, like affirmative action.  At the Office of Legal Counsel in the Ford Admnistration, however, he even made allies unhappy by keeping the executive branch within the metes and bounds of the law.

Second, Scalia’s successor must be capable of pressing the intellectual case for following the Constitution as written. Originalism is gaining ground because of its intellectual power and a justice can deepen its attractiveness through his or her writings. Again Justice Scalia was an intellectual force in originalist circles even before being appointed as a Justice, as when he suggested replacing original intent originalism, which has serious problems of coherence, with original meaning originalism. And he was continuing to make the intellectual case for originalism until he died, defending, for instance, the use of legal canons as a method of fixing the meaning of a text.

It is impossible here to canvass the entire list of the twenty-one individuals from which  President-elect Donald Trump has promised to nominate Scalia’s successor to determine which have the best of these qualities of the late Justice.  But two are exemplars—each of one of the virtues.

For demonstrated commitment to principle in adverse conditions it is hard to beat William Pryor, a federal judge on the Eleventh Circuit. As Attorney General of Alabama  he went against much, if not most, of the opinion of his state in removing Chief Justice Roy Moore from office.  Chief Justice Moore had defied a federal court order to remove a monument of the Ten Commandments from the state Supreme Court. Attorney General Pryor didn’t necessarily even agree with the legal reasoning behind the court order, but he held fast to the correct view that they are to be enforced unless overturned on appeal.

For deepening the practice of originalism, it is hard to beat Thomas Lee, a judge on the Utah Supreme Court and a former law professor at Brigham Young University. He has pioneered the application of corpus linguistics to law. Corpus linguistics provides a comprehensive data set of the uses of words and phrases at a particular time. Thus, it can help pinpoint the meaning of terms much better than dictionaries. As Michael Rappaport has noted, the promise of corpus linguistics for originalism “is to use very powerful software to examine actual usage of words from texts at the time of the Constitution.“  More generally, Judge Lee would create a transmission belt from the best work of originalists in the academy to the Supreme Court. Similar transmissions greatly improved antitrust law. They could do the same for constitutional law.

But I am not endorsing particular candidates.  Instead my purpose is to highlight the salient qualities for which the Trump administration should be searching in its first nominee to the Court.

John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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  1. Devin Watkins says

    In terms of who would stand for principle and the rule of law, I would add two names that really stand out to me. First would be Texas Supreme Court Justice Don Willett. His concurrence in Patel should be required reading in all law schools and a guide post for the Supreme Court to reverse the Slaughter-House Cases.

    Secondly, I would add Judge Gorsuch of the Tenth Circuit Court of Appeals. We can start with the concurrence in Gutierrez-Brizuela v. Lynch pointing out that by invoking Chevron and deferring to the executive courts “are not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations in the cases and controversies that come before them”—“[a] duty expressly assigned to them by the” Administrative Procedure Act “and one often likely compelled by the Constitution itself.” And then add his dissent from a denial of en banc in United States v. Nichols reviving the non-delegation doctrine. And lastly in De Niz Robles v. Lynch his rejection of retroactive agency adjudication and how it upends the basic notions of due process and the rule of law.

  2. Marilyn says

    My only objection to Judge Lee is his senator brother Mike Lee. Sen Lee’s ugly comments about President-elect Trump regarding Muslims were uncalled for. The McCarren Act specifically granted to the President the authority to act against peoples who, in his (or her) judgment posted serious danger to the country. It was invoked in 1979 by President Jimmy Carter. President Bill Clinton, in his first State of the Union Address, implied his would use that authority against illegal immigration. Yet Sen. Lee condemned Mr. Trump for realizing that unvetted, impossibly large groups of illegals are definite threats to this country. The Mormon Church has a pact with the Muslim community to expedite Muslim entry to the U.S. I have no legal background, but I believe it is doubtful that a Justice Lee could go against his religion and render a common-sense opinion if it went against his faith. In honesty, I have little faith any more in the Justice System, and the comment about judges moving “left” when on the Supreme Court is the reason. Justices Scalia, Thomas and Alito remained true to their conservative but common sense, fair rulings. The liberal side of the Court is stuck on the Left side and votes as a block. The activist judges, in my opinion and the opinions of many conservatives, usurped the powers given to states and their duly elected legislatures, and appear not only to be ignorant of the Constitution, but disdainful of it as well. We hope for another Scalia, a justice who does not “drift left,” and who respects the authority and the people enough to decline the temptation to override decisions made by states’ duly elected representatives. Government adherence to ONLY enumerated powers granted to the central government is the first qualification that I would like to see.


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