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How Scalia made constitutional law exciting

February 15, 2016 at 6:35 PM EDT
Supreme Court Justice Antonin Scalia, who died Saturday at the age of 79, adhered to a philosophy of loyalty to the original meaning and intention of the Constitution. Jeffrey Brown discusses Scalia’s legacy with Edward Whelan of the Ethics and Public Policy Center, Elizabeth Wydra of the Constitutional Accountability Center and Jeffrey Rosen of the National Constitution Center.

JEFFREY BROWN: And now reflections from three legal scholars who head research groups.

Edward Whelan of the conservative Ethics and Public Policy Center, he worked as a law clerk to Justice Scalia in 1991 and ’92. Elizabeth Wydra heads the progressive Constitutional Accountability Center, and Jeffrey Rosen of George Washington University and the nonpartisan National Constitution Center in Philadelphia.

Welcome to all three of you.

I want to start first with his, Justice Scalia’s influence on jurisprudence, how cases are talked about, how they’re decided.

Edward Whelan, you worked with him. You saw him in action. This idea of originalism, how did he push it? What impact did it have?

EDWARD WHELAN, Ethics and Public Policy Center: Well, he pushed it both as a judge and as an academic.

And he pushed it through his opinions. The basic principle of textualism is that a text has a meaning to be discerned. That’s true of the Constitution, where originalism provides, one seeks to figure out what the meaning of a constitutional provision was at the time it was adopted, likewise with statutes.

One looks to decide — to figure out what a meaning of the text is there. He had tremendous influence on the Supreme Court in moving it away from reliance on legislative history, especially the look to legislative history first to determine what a statute means.

And he also, I think, had considerable influence on constitutional interpretation, including perhaps most markedly in the Heller Second Amendment case in 2008.

JEFFREY BROWN: Elizabeth Wydra, you’re on the other side of Justice Scalia on most legal issues, but did he change the way you think about the law, the way you argue it?

ELIZABETH WYDRA, Constitutional Accountability Center: Yes, absolutely.

I — as a progressive, I disagreed with Justice Scalia on many, if not most of the outcomes of cases. But I absolutely agree with his embrace of the Constitution’s text and history. And my organization, the Constitutional Accountability Center, was very much informed by, or I guess formed almost in a reaction to Justice Scalia’s strong embrace of text and history.

JEFFREY BROWN: Formed in reaction, right?

ELIZABETH WYDRA: I mean, in part, certainly.

But as he strongly advocated for conservative outcomes based on the text and history in the Supreme Court, progressives like me and like CAC, my organization, were inspired to say no from our perspective. Let’s disagree on this, but let’s talk about that text and history.

And when we look at it, we think it supports progressive outcomes. But we were having a debate with each other. We were not arguing past each other.

JEFFREY BROWN: In other words, you’re saying he may be right about the way of thinking about the law, but he’s still wrong on the outcome.


JEFFREY BROWN: But you are arguing on his terms?

ELIZABETH WYDRA: Well, I think we’re arguing on the same terms…


ELIZABETH WYDRA: … the Constitution, which belongs to everyone.

And I think it was a good example of how Americans can argue about the meaning of the Constitution and really go toe to toe on whether this is a progressive document, as I think, or a conservative one.

JEFFREY BROWN: Jeffrey Rosen, what would you add to this? This is also a justice who famously, “I’m an originalist and a textualist, not a nut.” Right?

Explain what he meant by that?

JEFFREY ROSEN, National Constitution Center: He meant that in a good sense.

He was talking about his friend Justice Thomas, and he said, “Unlike Justice Thomas, I wouldn’t overturn every case that I think is inconsistent with original understanding, because I’m not a nut.”

And he meant that very affectionately. But despite that pragmatism, the fact that progressive organizations like the wonderful Constitutional Accountability Center were founded that text in history could lead to progressive, as well as conservative results is a sign of Scalia’s incredible influence.

He must be counted one of the most influential and significant justices of the 20th century, because he changed the terms of constitutional debate. He forced progressives to make those arguments and to try to beat him at his own game.

Now, sometimes, progressives argue Justice Scalia was an inconsistent originalist, ignoring the text and history in case like Brown vs. Board of Education, which is hard to justify on originalist grounds. Scalia’s response was essentially, no theory is perfect. I may not be able to justify everything, but basically I’m pretty good.

But it’s really important to note, too, the series of cases where Scalia’s preferences diverged from his constitutional preferences, flag burning, the rights of criminal defendants, the right to confront your accusers, the independent counsel law. These are all cases that favored liberal results because Scalia felt the Constitution compelled it.

And for distinguishing policy arguments and constitutional arguments, I think he deserves great respect.

JEFFREY BROWN: All right, so we asked all three of you to come up, to think about a key case and a few lines that help illustrate his thinking.

Let me start with you, Ed, Ed Whelan.

You chose something from the famous Casey case, the Planned Parenthood vs. Casey. So, the lines are, “By foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule, instead of allowing for regional differences, the court merely prolongs and intensifies the anguish.”

Why did you pick those lines?

EDWARD WHELAN: Well, I think that passage captures Justice Scalia’s belief that so many issues that other people want to constitutionalize are really left to the political processes to decide one way or the other.

People often caricature Justice Scalia as a conservative, when in fact on a whole host of issues, whether it’s abortion, the death penalty, same-sex marriage, his position is not that the Constitution entrenches his own views, but rather that it leaves the matter to democratic processes.

It’s his ultimate humility about the judicial role and the sharp line drawn between the role of the courts and the role of the elected branches.

JEFFREY BROWN: And you say that running through all his decisions and dissents?

EDWARD WHELAN: That’s certainly a basic theme. Obviously, there are plenty of times when he saw that there were popular enactments that violated the Constitution.

The key challenge, I think, of any justice is to discern the line between what the Constitution allows and what it forbids and to avoid imposing one’s own policy preferences.

JEFFREY BROWN: All right, Elizabeth Wydra, now, you picked one, a quote from a case, Crawford v. Washington.

And it’s — this is writing the opinion for the court — “Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with a jury trial because the defendant is obviously guilty. This is not what the Sixth Amendment prescribes. ”

Why that? What does that tell you about his thinking?

ELIZABETH WYDRA: Well, Justice Scalia, as I mentioned earlier, was a conservative justice, but there were areas in which progressives and conservatives could agree with his jurisprudence.

And criminal procedure and criminal law were some of those areas. And that case shows that, in some cases, he was quite the friend to criminal defendants and was very strong on ensuring that jury protections to criminal defendants were afforded.

And then there were other cases, for example, on the Fourth Amendment search and seizure context, where he struck down law enforcement techniques that violated the privacy and the founders’ original idea that your person, papers and effects should be kept private.

So, he isn’t generally thought of as a friend to the less powerful — and I think in most cases he wasn’t — but certainly in the criminal defense area, he was from time to time in very important ways. And I think that’s a big part of his legacy.


And, Jeffrey Rosen, yours is from a dissent in the Dickerson case.

And Scalia’s words were: “Today’s judgment converts Miranda from a milestone of judicial overreaching into the very Cheops Pyramid or perhaps the Sphinx would be a better analogue of judicial arrogance.”

Now, you can parse the legal part, but I suspect you picked it because of the — it shows a little bit of his colorful language and thinking, right?

JEFFREY ROSEN: Well, it’s spectacular, and also because it taught me to pronounce it. I also thought it was Cheops Pyramid. But it’s Cheops’ Pyramid.



JEFFREY ROSEN: I learned that from looking it up.

JEFFREY BROWN: Well, I will tell you, I was sure that that was a reference to the Great Pyramid. And I was right.


JEFFREY ROSEN: Well, absolutely. No, this was a smaller one that he was really talking about.


JEFFREY ROSEN: No, but the fact that he made you rush happily to the dictionary to find out these words was a sign of how much he taught us and made constitutional law exciting.

I also loved his great line, “The court has mistaken a Kulturkampf for a fit of spite.” I didn’t know what Kulturkampf was either. And I found out after looking at Google that was the culture war between Bismarck and the Catholic Church in the 19th century. That was a gay rights case.

It was just he was a deeply literate man who had such a joy in writing, was such a beautiful writer, the greatest since Holmes and Robert Jackson. And I think the fact that his aphorisms are so memorable made him the influential justice that he was.

JEFFREY BROWN: Very briefly, did he have an impact on the law?

EDWARD WHELAN: OH, absolutely.

As Jeff has mentioned, he really transformed the approach that the court has taken and has forced his opponents to define themselves against him. To be sure, some of his greatest opinions are dissents. I would emphasize in his second term on the court his solo dissent in the independent counsel case, Morrison v. Olson, which also has some beautiful passages.

Over the years, I think everyone has recognized the wisdom of that solo dissent. And I think, likewise, when they get past the heated controversies of the moment, when people read so many of his other dissents, they will recognize the deep wisdom there. And law students will read his opinions as long as anyone reads Supreme Court cases.

JEFFREY BROWN: And I will ask you for a brief last word on that, too.

He was also, though, on the losing side more recently of many key issues of the day.


So, his legacy will be his focus on the text and history of Constitution, but there were many cases in which progressives showed that the text and history of the Constitution supported progressive outcomes, like in the marriage equality cases, where he simply is on the wrong side of history there, in my opinion.

JEFFREY BROWN: Elizabeth Wydra, Ed Whelan and Jeffrey Rosen, thank you, all three, very much.