Justice Antonin Scalia — RIP

I did not know Antonin Scalia, who passed away unexpectedly February 13 at the age of 79.  I did, however, have the opportunity to meet the Supreme Court justice from time to time at Federalist Society events in Washington, but only long enough to shake hands and exchange pleasantries.  More significantly for me in remembering Justice Scalia is the dramatic impact he had on the law.

Largely in the 1980s — and spurred in significant measure by then-Attorney General Edwin Meese — conservative and libertarian legal scholars began to formalize the study and key principles of the judicial philosophy known as “originalism”  Originalism holds that a judge should seek to interpret the Constitution solely on the basis of the meaning that its drafters (including the drafters of amendments) had at the time of the drafting.  Justice Scalia, who took his seat on the Court in 1986, was an originalist, and by dint of his appointment, was in a position to bring that judicial philosophy to bear on actual law.  He did so with great effect over the course of nearly 30 years on the Court.  Today, even those justices and lower court judges who do not subscribe to originalism must be prepared to account for it and be able to defend their constitutional law opinions in the face of it.

Importantly, originalism is not a single idea with firm boundaries.  Over the years, legal scholars have developed various strains of the philosophy.  Justice Scalia self-identified as a “textualist,” by which he meant that he looked principally, if not solely, at the text of the provision of the Constitution that he was interpreting.  In so doing, he looked to the meaning of the words as they were understood at the time that they were written  Although with considerable overlap, another strain of originalism has taken on currency today as well.  This strain holds that, to give proper meaning to the words of the Constitution, one must read them within the context of the natural law and natural rights principles found in the Declaration of Independence.  That is, the natural rights principles in the Declaration informed the Constitution’s drafters understanding of what they were writing, and thus must similarly inform subsequent judges who are interpreting the document.  Some believe that Justice Clarence Thomas represents this originalist perspective.

Significantly, Justice Scalia applied his textualist brand of originalism with equal vigor to statutory interpretation.  Here too he sought to examine only the words within the four corners of a statute to find its legal force.  He considered such things as “legislative intent” — derived, for example, from the record of congressional debate — to be extraneous material and therefore not to be consulted by judges.  One of the more celebrated recent examples of his application of textualism is his dissent last year in King v. Burwellthe case upholding the Internal Revenue Service’s interpretation of the word, “Exchange,” within the meaning of the Affordable Care and Patient Protection Act, i.e., “Obamacare.”  In that case, the Court’s majority, in an opinion written by Chief Justice John Roberts, found it proper to define “Exchange” on the basis of the spirit and intent of the statute.  In stark contrast, Justice Scalia read the words of the statute literally and, in uniquely Scalia-esque language, vigorously critiqued the majority’s departure from those words.  (If readers are interested in more detail, I have written on that case and Justice Scalia’s dissent here.)

Last Friday, along with thousands of others, I was honored to be able to pay my respects to the late justice as he lay in repose in the Great Hall of the Supreme Court building.  As I exited the building, a reporter asked me about my impressions.  The brief interview with me and his story about the day can be found here.