Blog Ipsa Loquitur

Published on under The News

Margaret Talbot’s brief note on the death of Jusice Scalia is a postscript to her decade-old profile of him. In that profile, Scalia was the man. This was before his most apoplectic dissents in the Obamacare cases, as well as the Windsor and Obergefell cases, which ultimately recognized the universal right to marry. (He was pretty irate in Babbitt, though.)

That profile of Justice Scalia is a wonderful glimpse at Scalia near the zenith of his legal career, but this bit from the postscript really resonated with me:

I saw Justice Scalia speak a number of times, when I was profiling him for the magazine, in 2004 and 2005, and the question he hated most was how he would have ruled on Brown v. Board of Education. Scalia was committed to an originalist approach to jurisprudence, but a literal reading of the Fourteenth Amendment’s guarantee of equal protection would not seem to require a ruling to desegregate schools. […]

To law students who pointed out that it was the flexible, not the originalist approach that enabled Brown and other civil-rights breakthroughs, he’d reply that “Even Mussolini made the trains run on time,” or “Hitler developed a wonderful automobile. What does that prove? I’ll stipulate that you can reach some results you like with the other system. But that’s not the test.” In short, he never did reconcile originalism with Brown. And any legal philosophy that cannot be squared with that moral high point of the modern Supreme Court is fatally flawed.

That’s as a beautiful and succinct a metric for any judicial philosophy as I’ve ever read. Of course, sometimes people also reach conclusions you like by appliying a philosophy you may not like. As my friend Keith reminded me the other day, I concurred with Scalia’s recent raft of Fourth Amendment opinions. And in law school, there were certainly a handful of opinions in which I agreed with Scalia. It was always traumatic.

Jeffrey Toobin—also in the New Yorker—pulls fewer punches about Scalia’s philosophy and legacy. After a positively scathing indictment of the justice’s neolithic views on homosexuality, Toobin gets to Heller, a gun control case where Scalia read the original text of the Consitution and neatly sidestepped the whole bit about militias:

Scalia spent thousands of words plumbing the psyches of the Framers, to conclude (wrongly, as John Paul Stevens pointed out in his dissent) that they had meant that individuals, not just members of “well-regulated” state militias, had the right to own handguns. Even Scalia’s ideological allies recognized the folly of trying to divine the “intent” of the authors of the Constitution concerning questions that those bewigged worthies could never have anticipated.

None of this would have been remarkable if not for Scalia’s lifelong obsession with the plain language of the Constitution, and the legitimacy which he pretended that lent his legal opinions. But his inability to explain why an originalist justice would have been on the right side of Brown, and the fact that Scalia abandoned that philosophy when the stakes were highest, mar his legacy.

Regardless, constitutional law classes will be less exciting for want of more Scalia dissents.