[This book review article was published in the Fall/Winter 2017 issue of The Journal of Social, Political and Economic Studies, pp. 431-442.]
BOOK REVIEW ARTICLE
Justice Antonin Scalia: In Historical Perspective
Dwight D. Murphey
Wichita State University, retired
When Ronald Reagan was elected president of the United States in 1980, he faced the prospect of appointing one or more justices to the United States Supreme Court. If those justices were to be true to the “conservatism” that Reagan represented, they would be faced with the question of how to deal with the intellectual atmosphere and legal precedents of much of the preceding century, which had treated the Constitution as an “evolving” blueprint amounting to an ongoing sociological experiment. Antonin Scalia, appointed in 1986 and serving almost thirty years until his death in early 2016, was one of those who grappled with meeting what we here call “the challenge of the crossroads.” How he did it is one of the more important and intriguing questions of our time. Kevin Ring has put together a compilation of what he considers Scalia’s most interesting opinions and dissents. We review the resulting book, and while doing so describe the challenge the conservative judges faced. This enables us to place Justice Scalia’s judicial career in historical perspective. His opinions on a number of subjects are examined, along with his wit, insights and inspired writing.
Key Words: U.S. Supreme Court, Justice Antonin Scalia, American Constitutional development, Originalism, Textualism, death penalty, right to bear arms, religious freedom, freedom of speech, homosexuality, illegal immigration, Obamacare.
Scalia’s Court: A Legacy of Landmark Opinions and Dissents
Kevin A. Ring, editor
Regnery Publishing, 2016
Antonin Scalia’s brilliance and wit are well illustrated in this collection of his legal opinions and dissents written during his nearly thirty years’ service on the United States Supreme Court. He was appointed to the Court by President Ronald Reagan in 1986 and served until his death in early 2016. Kevin Ring is editor of the compilation and has added informative explanations of the context of each decision. He says he picked the opinions that were not necessarily the most important, wanting to focus on those that “are the most interesting to read.” Certainly he has succeeded in producing a fine representation of some splendid writing and legal thinking well attuned to the reading tastes of the educated layman.
To understand Scalia’s place in history, we need to grasp the unique position in which he was placed. The times called for him to be the trailblazer at a crossroads in American Constitutional law, and beyond that in American politics and culture. There is nothing in the book that explains this larger context, so we will ask our readers’ indulgence while we depart from a direct discussion of Scalia’s writings to see why he was in so pivotal a position.
Crossroads: The Challenge Scalia Faced
With Reagan’s election as president of the United States in 1980, one of the more sweeping turning points in American history became possible. By naming justices to the Supreme Court as vacancies arose, the new president could point the country, through the Court, in a new direction. Just how this was to be done would rest on the shoulders of the justices themselves. If they undertook the task with full consciousness of its subtlety and complexity, they would face an intellectual challenge unlike any other in the history of American law.
The Constitution, written at the Philadelphia convention in 1787 and supplemented by the Bill of Rights, involved both grants of power and an array of limitations upon them. Several powers were enumerated as within the purview of the national government, and the functions of government were separated among three distinct branches and divided between the national government and the states. The Bill of Rights made explicit a number of specific limitations. The Constitution provided a process for amendments, if and when desired.
The interpretation and application of this Constitutional scheme was never an easy matter, and there is little to be gained by over-simplifying the judicial history concerning it. Nevertheless, despite some controversies, the Constitution was long seen, and even came to be revered, as the Lodestar of the American political system – as steady a navigational tool for the American people as the North Star for a ship at sea. It could be, and was, amended, but more than anything it stood as a dependable guarantor of individual rights and assigned governmental dispensations.
For much of the first century and a half, and especially in the second half of the nineteenth century under the influence in the United States of the intellectual atmosphere arising out of the philosophy of John Locke and later given form by the likes of John Stuart Mill and Herbert Spencer, the Constitution was seen as essentially a classical liberal document, with an emphasis on limited government, economic freedom, and decentralized power. (We should recognize that, again, a generalization of this sort oversimplifies a complex reality and a variety of competing tendencies, but it’s a pretty good generalization, just the same.) What we are describing is the Constitution as honored over the decades at, say, innumerable meetings of the Sons (and Daughters) of the American Revolution. At one time, it was commonplace to speak of “Americanism.” The Constitution was an icon at the heart of that sentiment.
Eventually, a number of influences introduced a very different ideology. It would take us too far afield to recount them here. No doubt the changes occurring in American society from agriculture to industry, from small-unit production to large corporations, from rural life to the teeming city masses of newly-arrived immigrants, and much more, called for new ways to address issues of economics and social welfare. The ideology of the burgeoning Left taking hold within the social sciences and the commanding heights of opinion-making, however, took center stage on those issues. It set out on a program that was in some ways similar to but was in most ways at odds with what a still-ascendant classical liberalism would have done if it had not gone on the ideological defensive. For many years, the American Left called for ever-increasing federal power; and after World War II shifted to cultural revolution and the championing of what it saw as the many “victims” of mainstream American life. Over time, its perceptions came to be shared, through academia, the media, the entertainment industry, and countless streams of activist opinion, by those who form the broad elite that today determines “respectable” (also known as “politically correct”) opinion in the United States.
The Old Constitution, with its delimitation of governmental power and protection of individual liberties for citizens in general, including the average American, was rightly understood as standing in the way of the Left’s vision, whatever it was at a given time. It’s not surprising that a new legal philosophy would materialize – one that would cut loose the bonds that inhibited administrative discretion and activist government.
Thus, by the time Dean Roscoe Pound was delivering his famous lectures at Dartmouth College in 1921, we find him espousing a whole new vision of law and of the Constitution. The Lodestar concept was old hat. “Today… all recognize, nay insist, that legal systems do and must grow, that legal principles are not absolute, but are relative to time and place.” What Pound, and the intellectual milieu of which he was a part, favored was a system within which law “may grow consciously, deliberately and avowedly through juristic science and legislation tested by judicial empiricism.”
Pound’s was just one of many voices. The editors of The New Republic wrote that law should be considered “an instrument of progressive social engineering.” To them, “the truth is that the Supreme Court is a supreme policy-making body.” It is hardly too much to say that by the time the Supreme Court changed its complexion in the late 1930s, the Constitution had become a free-floating document and the Court itself more a panel of philosopher kings than of lawyers interpreting a fixed body of law. (Here again, the generalization is fundamentally accurate even though the personalities and views of individual justices over the decades make for a somewhat more intricate tapestry.)
The changes that have been fashioned in American Constitutional law have been extensive. A good illustration is provided by a case in which in 1962 the writer of this article, as a young attorney in Denver (coincidentally, with the law firm of John Gorsuch, the grandfather of President Trump’s early-2017 appointee Neil Gorsuch), wrote a brief to the Colorado Supreme Court on behalf of the Colorado Association of Real Estate Boards. The brief challenged the constitutionality of the then recently enacted Colorado Fair Housing Act, which prohibited discrimination based on race in the sale of a home. In recent decades, Americans have become so used to antidiscrimination laws that it is no longer apparent how greatly they fly in the face of what had until the middle of the twentieth century been considered fundamental rights of the individual. This writer’s 1962 brief relied on well-established law – indeed, law going to the very heart of the classical liberal vision of a free society – in reciting the right of an owner to “alienate” (i.e., dispose of) the property freely, the right of “freedom of contract,” and the importance of “freedom of association.” By 1962, it was pretty much a foregone conclusion that the Colorado Supreme Court would brush aside these traditional legal principles. It was no surprise when it ruled the Act constitutional. The Civil Rights Revolution had championed a focus on minority rights, and (as it was effected) that required overriding the corpus of law that had protected the freedom of people in general. Once the override occurred, it has been easy to extend it much further. We now see the owner of a catering company being forced to cater the reception for a homosexual wedding.
Our point in citing the 1962 case is that a justice like Scalia, coming onto the U.S. Supreme Court in 1986 and being on the cutting edge of Reagan’s “conservative revolution,” was intrinsically posed with the question of whether the traditional Constitutional law would be restored – and, if so, how much. There had been many other departures, such as a massive shifting of power to the federal government under the Commerce Clause, the “one man, one vote” rule that barred states from having one house of their legislatures centered on geography, not population, the Roe v. Wade decision declaring abortion a Constitutional right – and many others.
For a “conservative” justice to set out on a course of overturning, if he could, the decisions of a half-century would, of course, have been a political and cultural impossibility. From a legal standpoint, it would have meant going steadily against the doctrine of stare decisis – the following of precedents, which itself would have thrown a wildcard into the operation of the legal system.
On the other hand, a rigorous adherence to stare decisis would have meant giving a stamp of approval to all the changes that had come about under the “free floating” Constitution. Decisions that adherents of the original Constitution feel to be naked usurpations would be sealed in place, equivalent to saying “go ahead and make further usurpations when you can, knowing they will be accepted as fait accompli.”
What, then, was a Reagan appointee to do? He could neither affirm nor overturn the great bulk of usurpative decisions; nor could he (and colleagues like him) return the Court to an earlier stage in the country’s Constitutional history. The task would be to go forward with wisdom and subtlety, picking and choosing, and incrementally revisiting the issues of the rights of the majority and of the most appropriate divisions of power.
To say this is not to lay down a clear blueprint for precisely what that path should be. The great significance of Scalia’s Court: A Legacy of Landmark Opinions and Decisions is that it gives us an easily accessible window into what it was that such a conservative jurist did in fact during the three decades that followed his appointment. The weight of the “challenge of the crossroads” rested on his shoulders and those of his close associates. For a more complete fulfillment than he was able to accomplish, there would have to have been the rise of a new intellectual culture in the United States. That didn’t happen. The crossroads has become visible again in 2017, with similar possibilities. But whether an intellectual revolution is germinating under the surface of events is not yet apparent, and may never occur.
The course Scalia chose was not, either explicitly or by implicit intent, to revive the classical liberal ideology that informed the Court in the second half of the nineteenth century. The Court at that time had formulated the concept of “substantive due process,” which it interpreted to include the various rights that, though not listed in the Bill of Rights, were a part of individual liberty as generally understood. Scalia rejected this, and in place of it adopted a judicial philosophy of “originalism,” by which he had recourse to the specific language of the Constitution, supplemented by looking to see whether there was “a long-standing tradition of American society.” It is significant to note that even though this disavowed the earlier ideological content, the “long-standing traditions” did in fact take Scalia back to a time prior to the Left’s free-floating Constitution. Those traditions – those of the old “Americanism” -- would overlap in substantial part with the earlier classical liberal ideology.
The book we are discussing provides extensive insight into what Scalia did as he grappled with the challenge we have described. The editor has selected opinions and dissents on an extensive array of issues, ranging from freedom of speech, to illegal immigration, to searches and seizures, to Obamacare – and several others. Since we won’t be able to cover them all, we recommend a careful reading of the book itself. Here are the few we’ve chosen for discussion here:
Scalia’s Opinions and Dissents
The Right to Bear Arms. In 2008, Scalia wrote the opinion for a 5 to 4 majority declaring that the Second Amendment’s “right to bear arms” runs to individuals, not just to organized militia, as is contended by those who would largely truncate the Amendment. It is important to note that the purposes of the right, in Scalia’s opinion, include resistance to tyranny, thus going far beyond a right simply to have weapons for hunting and sport. Nevertheless, a number of limits have traditionally been imposed, and are consistent with the right: these include the prohibition against carrying concealed weapons, the barring of possession of firearms by felons and the mentally ill, and the “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.” As to the last of these, Scalia explains that what the Second Amendment protected was having “the sorts of weapons that they [the body of citizens capable of military service]” would bring to militia duty.
Scalia’s “originalist” method is in evidence here. He went back to the time the Bill of Rights was enacted to see what was contemplated at that time, and coupled this with a look at long-standing traditions. He was not examining the subject ab initio, weighing the advantages and disadvantages of a particular interpretation as a legislator would. Nor did he open the door to “social experimentation” and reliance on a flood of statistics. His way of meeting “the challenge of the crossroads” that we described earlier was thus to leapfrog over the judicial methodologies so fashionable during the past century.
The death penalty. The editor, Kevin Ring, tells us “Justice Scalia was an ardent defender of the government’s authority to use the death penalty as it saw fit.” The Eighth Amendment’s prohibition of “cruel and unusual” punishments would apply, according to Scalia, in either of two instances. The first is “those modes of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted” – and here he applies his originalist method. The second instance is where “modern standards of decency” would be violated. In this, Scalia follows a recent precedent, choosing not to repudiate stare decisis as to it, that does adopt an “evolving” standard. But he is far less open-ended about what sensibilities are “evolving” than the majority of his colleagues are. He insists on “objective” criteria. “First among these objective factors are the statutes passed by the society’s elected representatives.” For that, he would look at the statutes of all fifty states, not just of a selected few, even the more recent enactments. To Scalia, judges are “eminently ill-suited” to “divine” the “evolving standards of decency.” A recurrent theme in his opinions was that judges should be the interpreters of law, not legislators, and that a presumption to legislate is a usurpation of the majority’s right to govern.
In recent years, the country’s governing elite has interposed so many procedural delays regarding the death penalty that there has in many places been a de facto prohibition. Typically, Scalia flies in the face of that elite when he writes that “this delay is a problem of the Court’s own making.” What happened to stretch the time of carrying out the penalty from the historic average of two years to the present 18? “Nothing other than the proliferation of labyrinthine restrictions… promulgated by this Court.”
“Homosexual rights.” The leftist Frankfurt School that began in the interwar period almost a century ago has long been at work on its “march through the institutions” of American society, serving as the leading edge of the “cultural revolution.” Its most striking success has been in validating aberrant sexuality, as is seen in leading American universities where “Queer Theory” and “Queer Studies” have taken their place among the academic departments. Thinking among America’s opinion-elite is quick to embrace each step as it occurs, and it isn’t long before other attitudes come to be seen as bigoted and taboo. Everyone who instinctively seeks respectability among the opinion-elite then genuflects accordingly.
It has been in this context that the Supreme Court has “evolved” on the question of “gay (i.e., homosexual) rights.” As recently as 1986, the Court upheld a state law criminalizing sodomy. By 2003, however, Scalia had to file a dissent to assert what until very recently has been assumed to be obvious: “the ancient proposition that a governing majority’s belief that certain sexual behavior is ‘immoral and unacceptable’ constitutes a rational basis for regulation.” That such an opinion should seem remarkable shows the gulf that had opened up between a justice adhering to established law and a majority on the Court who were responsive to the opinion-elite and who, though judges, were anxious to legislate.
Freedom of Speech. Much of the West has outlawed “hate speech” and applies the prohibition in a way that criminalizes serious scholarship about “politically incorrect” subjects that are considered taboo and therefore not legitimate subjects for examination. Such legislation has not come about in the United States, in large part because of a convergence of the traditional American reverence for freedom of speech as protected by the First Amendment with the American Left’s long-standing anxiety about the possibility of its own speech being curtailed. That convergence is threatened, however, by a duality that exists within the Left. As long ago as 1965, Herbert Marcuse (part of the Frankfurt School) wrote his essay on “repressive tolerance” in which he advocated allowing all speech on the left and repressing all speech on the right. This amounts to a totalitarian insistence on the worth of some views and devaluation of others as unacceptably damaging. It’s not surprising when in 2016 we were told by Allan Brownfeld that “a coalition of seventeen attorneys general announced at a press conference that they are targeting any company that challenges the ‘accepted’ wisdom regarding climate change.”
For his part, Scalia has weighed in heavily on the side of open speech. Contrary to what we might well presume to be his personal loyalties, he voted to nullify a federal law outlawing flag-burning. And in one of the more consequential recent decisions (2010), he agreed with the Court’s majority in Citizens United that it would be unconstitutional to ban corporate spending in elections. In a 2003 concurring opinion, he had written that “given the premises of democracy, there is no such thing as too much speech” (his emphasis). On the other hand, Scalia held that pornography and indecency, such as nude dancing, are not speech at all, and hence don’t fall under the protection of the First Amendment.
Obamacare. One of the main features of the 2010 Patient Protection and Affordable Care Act (commonly known as “Obamacare”) was the “individual mandate” that required anyone who didn’t have employer-provided health insurance (or medical care provided by a government program such as Medicaid) to buy a private insurance policy approved by the government. A central question in the litigation that challenged the statute was whether the federal government (as distinct from the states) had Constitutional authority to make such a requirement. If the Supreme Court had followed a 1942 precedent that applied the Commerce Clause in a way that shifted authority over virtually all human activity to the federal government, it would have upheld the individual mandate on that ground. Significantly, it did not use that precedent, arguably weakening the sweeping nature of the Commerce Clause’s reach and opening the door to a shrinking of federal jurisdiction, depending upon future decisions. Instead, Chief Justice John Roberts, writing on behalf of a majority consisting of himself and the liberal justices, rather surprisingly contrived to uphold the mandate as an exercise of the government’s power to tax. This required calling the statute’s penalty for not getting insurance a “tax.”
Scalia and the three other conservatives justices dissented. Their joint opinion made a point that was dear to Scalia’s heart: that the Constitution’s separation and division of powers, though structural, were even more important than the Bill of Rights as protections against the abuse of government – from which it followed that jurisdiction should not wantonly be ascribed to the federal government.
The Obamacare statute had provided tax credits for people who bought their health insurance through “exchanges established by the State.” No such credits were authorized for people buying through an exchange set up by the federal government. Just the same, the Obama administration gave the credits to both. When this was challenged, Chief Justice Roberts again joined the liberal justices to form a majority, combining to uphold the administration’s grant of credits to those getting insurance through the federal exchange. In dissent, Scalia pointed to the text of the statute, and argued that if its clear meaning were not followed, “words [would] no longer have meaning.” In this, we see his adherence to a statute’s text. (This is a case of the “textualism” that went along with his “originalism”). For the Court to ignore what the statute said was for it to legislate, reflecting a desire that he saw on the part of the majority to “save the Affordable Care Act,” no matter what sophistries might be needed.
Illegal Immigration. When hundreds of thousands of immigrants illegally crossed the border from Mexico into Arizona (and other states) and the Obama administration chose to do little about it, Arizona passed a statute making a person’s violation of federal immigration law a state crime, prohibiting an illegal immigrant from working in the state, and authorizing state and local police to make arrests without warrants if they had “probable cause” to believe a crime had been committed.
When the Arizona law was challenged, a majority of the Supreme Court held it invalid on the ground that federal immigration law preempted it. Scalia dissented, arguing that “federal preemption” should not be easily inferred from “the mere existence of federal action in the immigration area.” “Implicit ‘field preemption,’” he said, “will not do.” He didn’t contest that the Constitution gives the federal government power to preempt the field, but held there should be no cavalier presumption that it has done so. None of the sections of the Arizona statute, in his opinion, contradicted federal law, but rather gave federal restrictions additional enforcement. What they did run counter to was not Congressional preemption, but the lack of will to enforce border control by Congress when it didn’t provide sufficient funding and by the administration when it failed to see to it that “the laws are faithfully executed.” (We know that this “lack of will” was not the result of negligence. The non-enforcement of border control has been favored by a number of ideological, ethnic, political and economic interests.)
A striking thing about his dissent was its stress on the importance of immigration control to the sovereignty of the states. He pointed to “the States’ traditional role in regulating immigration.” Scalia observed that the United States “is a Union of independent States, who have their own sovereign powers.” Thus, “Arizona is entitled to have ‘its own immigration policy so long as that does not conflict with federal law.” By reiterating the sovereignty of the states, Scalia was running contrary to the drift during the past century toward treating the states like administrative agencies of the federal government, much as a county is to a state.
Scalia’s Court is an easy book to read and is just the opposite of densely legalistic, but it does presuppose a serious reader whose attention span and tastes are considerably above what appeals to many American readers (even those, unfortunately, who have gotten a “college education”).
It is a rewarding experience, not just for its contents, but as literature. Scalia’s wit and delightful skill as a wordsmith show up, for example, in some surprisingly informal expressions, such as when he chides his colleagues for their “legalistic argle-bargle” and “interpretive jiggery-pokery.” Scalia includes a good many literary and historical references, such as quoting Mark Twain on golf and examining the history of British law on gun rights.
Through it all runs a rich vein of common sense and acute insight. To say this doesn’t mean we agree with all of his opinions. It’s enough to say that “the challenge of the crossroads” described earlier called upon him (and his conservative colleagues) for uncommon wisdom and fortitude. Scalia acquitted himself well in that historically unique context.
1. The integration of blacks into the larger society could have been done in ways consistent with the individual rights that were basic to American law, but would have required following a very different course than was chosen. Instead of being forced, it would have required the cultivation of respect. The slower pace wouldn’t have satisfied activists, but when looked back upon after many years might well be seen to have produced less alienation, dependency and rhetoric of “victimization” – and more genuine coming-together.
2. The argument that’s made against this forcing is that it violates the religious beliefs of such a caterer. This misses a much broader point, that it runs counter to the rights of contract, property and freedom of association of people in general, whatever their religious tenets.
3. This writer posed this question in a paper he delivered at the annual meeting of the Philadelphia Society on April 11, 1981, at the very beginning of the Reagan years. He proposed “a deliberate course of reconstituting the Constitution,” but without seeking to overturn the post-1930s decisions en masse. Recognizing that “it will be neither possible nor desirable literally to ‘go back’ to an earlier time in the history of the Constitution and to try to pick up from there… We will need to ‘go forward, not backward’ into a creative regeneration of the Constitution as a delimiting document.” This would “require an enormous amount of wisdom and statecraft on the part of the justices who attempt it.”
4. For an extended discussion of the “hate speech” prohibitions’ effect on scholarship, see this writer’s article “Conceptual Issues in Prohibiting ‘Hate Speech’” in the Spring 2003 issue of The Mankind Quarterly, pp. 335-352. The article can be accessed free of charge at www.dwightmurphey-collectedwritings.info as Article 85 (i.e., A85).
5. Allan C. Brownfeld, “Another Attack on Free Speech,” The St. Croix Review, June/July 2016, p. 25.
6. We are not giving citations for the various cases mentioned here, since the cases are the subject-matter of the book and the citation of each case is given there.
 The integration of blacks into the larger society could have been done in ways consistent with the individual rights that were basic to American law, but would have required following a very different course than was chosen. Instead of being forced, it would have required the cultivation of respect. The slower pace wouldn’t have satisfied activists, but when looked back upon after many years might well be seen to have produced less alienation, dependency and rhetoric of “victimization” – and more genuine coming-together.
 The argument that’s made against this forcing is that it violates the religious beliefs of such a caterer. This misses a much broader point, that it runs counter to the rights of contract, property and freedom of association of people in general, whatever their religious tenets.
 This writer posed this question in a paper he delivered at the annual meeting of the Philadelphia Society on April 11, 1981, at the very beginning of the Reagan years. He proposed “a deliberate course of reconstituting the Constitution,” but without seeking to overturn the post-1930s decisions en masse. Recognizing that “it will be neither possible nor desirable literally to ‘go back’ to an earlier time in the history of the Constitution and to try to pick up from there… We will need to ‘go forward, not backward’ into a creative regeneration of the Constitution as a delimiting document.” This would “require an enormous amount of wisdom and statecraft on the part of the justices who attempt it.”
 For an extended discussion of the “hate speech” prohibitions’ effect on scholarship, see this writer’s article “Conceptual Issues in Prohibiting ‘Hate Speech’” in the Spring 2003 issue of The Mankind Quarterly, pp. 335-352. The article can be accessed free of charge at www.dwightmurphey-collectedwritings.info as Article 85 (i.e., A85).
 Allan C. Brownfeld, “Another Attack on Free Speech,” The St. Croix Review, June/July 2016, p. 25.
 We are not giving citations for the various cases mentioned here, since the cases are the subject-matter of the book and the citation in each case is given there.