Originalism on Trial

By Bob EgelkoAugust 15, 2018

Originalism on Trial

The Justice of Contradictions by Richard L. Hasen

DECIDING THE LAW on the nation’s most divisive social issues isn’t as hard as it’s cracked up to be. At least not according to the late Supreme Court Justice Antonin Scalia.

“Abortion? Absolutely easy,” Scalia told the American Enterprise Institute in 2012, after 25 years on the court. “Nobody ever thought the Constitution prevented restrictions on abortion.”

“Homosexual sodomy? Come on. For 200 years, it was criminal in every state.”

End of story, at least for Scalia, whose signature doctrine was “originalism” — that the Constitution and the laws mean only what those who drafted and enacted them intended at the time, regardless of later developments. But it’s just the beginning of the narrative in The Justice of Contradictions: Antonin Scalia and the Politics of Disruption, an absorbing new book by Richard L. Hasen, professor of law at the University of California, Irvine.

As the title suggests, Hasen is not a Scalia devotee. But, based on a study of how often lower-court judges cite Supreme Court opinions in their own rulings, he says Scalia could be considered “the most influential justice of the past two generations.” He was also “a gregarious public intellectual […] anti-elitist, conservative, brilliant, and loud,” one who “gave voice and logic to conservatives who […] were still railing against the [Earl] Warren Court of the 1960s.”

That voice can still be heard in judicial circles. President Trump has declared Scalia to be his model for future appointees, including the justice’s successor, Neil Gorsuch (“Think Scalia, but without the spontaneous wit and charm,” Hasen says). He’s also the role model, and a onetime advisor and fundraiser, for the Federalist Society, the very conservative organization to which Trump and the Senate’s Republican majority have delegated the task of screening and recommending prospective federal judges at all levels.

One of Scalia’s decisions probably would have horrified Trump. He was part of a 5-4 majority in Texas v. Johnson, the 1989 ruling that declared flag-burning to be “expressive conduct” protected by freedom of speech. The plaintiff, a member of the Revolutionary Communist Youth Brigade, torched an American flag in protest outside the 1984 Republican National Convention in Dallas and was sentenced to a year in prison under a Texas law prohibiting the desecration of a “venerated object.”

Scalia didn’t write an opinion in the case and later said he had abhorred the result. “If it were up to me, I would put in jail every sandal-wearing, scruffy bearded weirdo who burns the American flag. But I am not king,” he stated in a public appearance in November 2015, three months before his death.

Hasen describes Scalia as “generally a conservative libertarian” in First Amendment cases, and says the flag-burning case showed that “in his ideological hierarchy, even hateful, anti-patriotic expression was better than government censorship.” (Trump has said flag-burners should go to jail and perhaps lose their citizenship.)

His wariness of government overreach was also visible in some areas of criminal law.

Scalia was an ardent supporter of the death penalty, a part of the original Constitution. He dissented when the conservative-led court barred capital punishment for the mentally disabled, in 2002, and for minors, in 2005. When the court upheld Georgia’s death penalty law in 1987 and rejected claims that it was racially discriminatory, Scalia wrote a memo saying even proven racial disparities shouldn’t invalidate the law. He also opposed the exclusionary rule, a century-old doctrine that bars evidence obtained in illegal police searches.

Yet, Scalia wrote or joined significant rulings favoring criminal defendants. His 2004 decision in Crawford v. Washington barred prosecutors from using most types of hearsay evidence, secondhand reports of out-of-court accounts by witnesses who are unavailable for questioning in court. In concluding that such evidence violates a defendant’s Sixth Amendment right to confront opposing witnesses, Scalia mined his “originalist” trove for the 1603 treason trial of Sir Walter Raleigh, who was sentenced to death by an English court that heard reports of what an alleged accomplice had said about Raleigh — a case the amendment’s drafters must have had in mind, Scalia said.

He also joined a 2000 ruling requiring jurors rather than judges to find facts that increase a defendant’s sentence, wrote a 2001 decision saying police use of thermal imaging technology to scan a home may require a search warrant, joined a 2012 decision requiring police to obtain a warrant before attaching a GPS tracking device to a car, and dissented from a 2013 ruling upholding a Maryland law requiring collection of DNA samples of anyone arrested for a serious crime. These cases, Hasen concludes, reflect Scalia’s “distrust of government and his strong belief in personal privacy.”

But that strong belief did not extend to the constitutional right of privacy that the court announced in Griswold v. Connecticut, a 1965 ruling on access to birth control, and relied on eight years later in declaring a woman’s right to abortion in Roe v. Wade.

Probably the best-known contrast of justices’ personal and professional lives in recent years was the heralded friendship of Scalia and Justice Ruth Bader Ginsburg, the court’s leading feminist.

While the two were attending operas together, Scalia was composing the 2011 ruling in Wal-Mart Stores, Inc. v. Dukes that denied class-action status to women suing the retail giant for sex discrimination. He was writing opinions in abortion cases demanding the repeal of Roe v. Wade, an exception to his self-described respect for legal precedent. And he was telling San Francisco law students in 2010 that the constitutional guarantee of equal protection of the laws, part of the 14th Amendment in 1868, was never intended to apply to women, despite the court’s repeated rulings since the early 1970s that sex discrimination was unconstitutional.

That brings us to Hasen’s “justice of contradictions.” Scalia, Hasen notes, based his conclusions that women, and gays and lesbians, lacked constitutional protection against government-sanctioned discrimination on the unquestioned facts that neither group was mentioned in the text of the 14th Amendment, and that the post-1868 Congress passed no laws protecting them — proof, he concluded, that they were not part of the amendment’s “original intent.”

But that same Congress passed a series of laws benefiting African Americans newly freed from slavery, evidence that “the original understanding of the equal protection clause was that it did not bar race-based remedies,” Hasen explains. Scalia nevertheless voted consistently to overturn affirmative action laws benefiting minorities, relying solely on the text of the 14th Amendment to find them unconstitutional, and never mentioning congressional intent.

Or take his opinions on the proper level of judicial deference to lawmakers. When the court, in United States v. Windsor, overturned the Defense of Marriage Act in 2013, and required federal benefits for legally married same-sex couples, Scalia criticized the majority for failing to respect Congress’s judgment. When another 5-4 ruling in 2015 struck down state bans on same-sex marriage in Obergefell v. Hodges, Scalia seemed to question the court’s authority even to consider second-guessing the people’s representatives. “A system of government that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy,” he said in dissent.

And yet, two days after the Windsor ruling on marital benefits, Scalia joined a majority in Shelby County v. Holder that struck down a central provision of the Voting Rights Act — passed 98-0 by the Senate in 2006 — that required states with a history of racial discrimination in voting to gain Justice Department approval before changing their election laws or district boundaries. During oral argument, he scoffed at the suggestion that the court should allow Congress to decide whether such measures were still needed to protect minorities.

The vote, he told the Obama administration’s lawyer, was most likely “attributable to a phenomenon that is called perpetuation of racial entitlement. […] Even the name of it is wonderful: the Voting Rights Act. Who is going to vote against that?” Scalia, in effect, cast such a vote after the fact, a sign that his willingness to defer to legislative decisions “depended in good part on how much he liked the underlying law,” Hasen observes.

“Scalia was not more ideologically driven or results-oriented than his fellow justices,” Hasen asserts. He cites the Bush v. Gore ruling in 2000, when Scalia and four fellow conservatives took a relatively liberal view of equal protection — that it prohibited a recount of the Florida votes that swung the presidential election to George W. Bush because counties used varying methods of assessing disputed ballots — while their liberal colleagues took a more conservative approach to equality as applied to vote-counting. But Scalia, Hasen says, “held himself out as better than the other justices because he applied allegedly neutral principles.”

That attitude can make for painful reading. Scalia’s opinions in some divided cases referred to justices’ contrary opinions as “bizarre,” “grotesque,” and “incoherent.” In the 2015 same-sex marriage case, he labeled Justice Anthony Kennedy’s majority opinion as “pretentious” and “egotistic” and said he would “hide my head in a bag” before joining such an opinion — one written by the justice who was the swing vote in the court’s close cases. When that position was held by Justice Sandra Day O’Connor, Scalia fumed at her for refusing to overturn Roe v. Wade in a 1989 abortion case, Webster v. Reproductive Health Services, and said her argument “cannot be taken seriously.”

Hasen notes that Scalia’s language “served to coarsen judicial discourse.” It may also explain the apparent reluctance of the conservative chief justices during his tenure to assign significant cases to Scalia, for fear of losing votes needed for a majority. As influential a force as he was during 29 years on the court, Scalia wrote only one ruling that is generally regarded as historic, District of Columbia v. Heller, the 2008 decision that established a constitutional right to keep firearms in the home for self-defense.

“I think Heller is my legacy opinion […] the most complete originalist opinion that I’ve ever written,” he told an interviewer in 2013. It is indeed an exhaustive analysis of the Second Amendment’s text, history, and apparent interpretation by its drafters, before he concludes that the amendment’s opening reference to the need for “a well-regulated militia” was only a preface to the operative passage guaranteeing a “right to keep and bear arms.”

Yet Justice John Paul Stevens, writing for the four dissenters, used a different textual analysis to conclude that the Second Amendment was intended to arm members of a militia, the interpretation the court had used when it last considered the issue in 1939. Apart from a 2010 ruling that extended Heller to the states, the court has steered clear of gun cases since 2008, leaving unanswered such questions as whether the same rights apply outside the home and how far states can go in regulating the types of weapons that can be sold, who can buy them, and where they can be carried — disputes that do not lend themselves easily to parsing of wording from 1791.

Hasen tries to give credit where it’s due. Referring to Scalia’s opinion in the 2004 case of Hamdi v. Rumsfeld, when he said a US citizen held as an “enemy combatant” at Guantanamo had to be either charged with a crime or set free, he says it “must have been tough for Scalia to write, given that his son Matthew served as an army officer in Iraq.” And his critique of the law establishing an independent federal prosecutor for political cases, which he called a threat to the separation of powers (Morrison v. Olson, 1988), was borne out a decade later in the controversies over Kenneth Starr’s wide-ranging investigation of President Bill Clinton, Hasen notes.

Hasen concludes, however, by stating that the justice promised far more than he could deliver.

“Scalia’s blind spot was his belief that it is possible to objectively and neutrally determine what the Constitution ‘actually commands,’” Hasen writes at the close of a 178-page book that, at least for this reader, shed new light on the law and how it is made, interpreted, and applied. “At the end of the day the Supreme Court has always been a political institution, deciding the most difficult cases by considering text, history, practice, and, yes, each justice’s values. Even Justice Scalia’s.”


Bob Egelko has been a reporter since June 1970 with the Associated Press, the San Francisco Examiner, and the Chronicle, covering state and federal courts in California, the Supreme Court, and the State Bar.

LARB Contributor

Bob Egelko has been a reporter since June 1970. He spent 30 years with the Associated Press, covering news, politics, and occasionally sports in Los Angeles, San Diego, and Sacramento, and legal affairs in San Francisco from 1984 onward. He worked for the San Francisco Examiner for five months in 2000, then joined The Chronicle in November 2000. His beat includes state and federal courts in California, the Supreme Court, and the State Bar. He has a law degree from McGeorge School of Law in Sacramento and is a member of the bar. Coverage has included the passage of Proposition 13 in 1978, the appointment of Rose Bird to the state Supreme Court and her removal by the voters, the death penalty in California and the battles over gay rights and same-sex marriage.


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