One of the standard distinctions these days is between the old originalism and new originalism.
This article explores the tensions between Justice Scalia’s originalism and his lenient approach to the nondelegation doctrine. While I have only skimmed the piece, it appears to tell a story similar to the one that I would.
Justice Scalia wrote two significant opinions on the nondelegation doctrine – the doctrine that places limits on Congress’s power to delegate legislative power to executive branch agencies. One was his concurring opinion in Mistretta v. United States. In Mistretta, Scalia held that the delegation to the Sentencing Commission of the power to announce binding Sentencing Guidelines was unconstitutional. While Scalia was the only Justice who would have struck down the delegation, his argument was almost entirely focused on the unusual powers of the Sentencing Commission. Unlike other agencies, it did nothing else besides promulgating these guidelines. Thus, it was a junior varsity Congress.
I fully expect that Donald Trump will put forward an exceptional nominee to fill the Supreme Court vacancy left by Justice Scalia’s death. Given the composition of the Senate and the bench of judicial talent, it should be hard to get this selection of a new Justice wrong.
Despite President Obama having the opportunity to remake the U.S. Supreme Court with one nominee, Donald Trump will need to wait for the same opportunity. Not because Congress will confirm Judge Garland, and not because Congress won’t confirm Trump’s nominee, but because of the ideological configuration of the Court, and where Justice Scalia fell in that current configuration in relation to the other justices.
In a recent post, I noted that Justice Scalia has been criticized for departing from originalism in various areas. But the positions that Justice Scalia took in many of these cases – including a prohibition on state affirmative action, limitations on regulatory takings, and protection of various state immunities, such as sovereign immunity and commandeering immunity – could have been defended on originalist grounds. One area, however, where there is little to be said for Justice Scalia’s position has largely been ignored: the federal government’s power over immigration. In Arizona v. United States, Justice Scalia started strong, initially questioning the federal…
With the passing of Justice Scalia, various critics of the justice have made a sport of trying to point out areas where the justice might not have lived up to his own originalist principles. I certainly think it is important for all justices, especially originalist justices, to follow originalist principles. But I don’t approve of the attempt to use originalist principles as a club to attack originalists who sometimes did not live up to those principles.
It is hard to be a justice. One does not have the luxury, like a law professor, of simply writing about the issues one feels comfortable discussing. The issues come up with the cases (even given certiorari at the Supreme Court) and the justices must decide them. Given the pressures and forces of judicial politics, especially in an age where nonoriginalism has been the dominant view for generations, it is hard to expect an originalist justice to be entirely consistent.
In determining how bad it was that a justice did not follow a principle, one must consider a variety of factors, including how difficult it would be to follow the principle (in terms of matters such as consequences and reputation). That nonoriginalist justices follow their own political views – which can be adjusted to their own values, to current politics, or to most other things – is not an especially difficult thing. Thus, comparing an originalist justice who follows originalism only 75% of the time with a nonoriginalist who follows nonoriginalism 95% or 100% of the time is misguided. It is much harder to be the originalist.
Anyone who has clerked for an appellate judge knows that assisting in writing a dissent is one of the better parts of the job. While a majority opinion, however important it is, almost always involves compromise, a dissenting opinion allows a judge the full range of rhetorical devices, unhindered by the need to cobble together a majority or to convince colleagues to vote the same way.
On Monday, the New York Times reported that Justice Clarence Thomas asked various questions at oral argument, something he had not done in 10 years. In the first version of the story written by Adam Liptak, the sole explanation offered was one that was not complimentary to the Justice: It was hard to escape the conclusion that the absence of the voluble Justice Scalia, who had dominated Supreme Court arguments for nearly 30 years on the bench, somehow liberated Justice Thomas and allowed him to resume participating in the court’s most public activity. I was going to criticize this obvious bias, but…
Over at Balkinization, Mark Graber recently had a post entitled “Justice Scalia’s Orwellian Jurisprudence,” which claimed that Scalia paraded as an advocate of judicial restraint, but was actually an activist. Graber also claims that Scalia said he was an originalist, but ignored originalist history.
While Graber’s post has some legitimate criticisms of Scalia, which I will discuss in a moment, it is sadly marred by his claim about Scalia advocating judicial restraint. I am not aware of Scalia claiming to favor judicial restraint. Despite saying that Scalia advocated such restraint, Graber does not provide any specific evidence that Scalia actually defended this position. (If anyone has such evidence, I would be genuinely interested in seeing it.) In his Matter of Interpretation, Scalia says:
Textualism should not be confused with so called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrespute. I am not a strict constructionist, and no ought to be – though better that than a nontextualist. A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.
Thus, I do not think Scalia advocates judicial restraint. And unless he has some other evidence, I believe Graber should retract his charge.