Scalia: The original New Originalist overshadowed by consequences of SCOTUS activism

posted at 9:21 pm on February 17, 2016 by Ed Morrissey

So much of the discussion of Antonin Scalia has focused on the political consequences of his death that his life — and his pioneering work as the Supreme Court’s original originalist — has been overlooked. For instance, the circumstances of his death and the lack of an autopsy has fed some rumors about foul play, but part of that comes from a misinterpretation of how Scalia was found. Donald Trump fueled those rumors by misunderstanding a key detail, CBS’ Jan Crawford reports:

The first mistake was that the pillow was not found on top of his face, but on top of his head, which makes the scene sound much less suspicious:

The ranch owner, John Poindexter, tried to clarify his comments, telling “CBS This Morning” that Scalia “had a pillow over his head, not over his face as some have been saying. The pillow was against the headboard.”

Judge Cinderela Guevara said investigators found no signs of foul play or struggle. She added Scalia’s personal physician believed “the death was due to natural causes.”

Still, in most jurisdictions, an unattended death would require an autopsy. The family opposed it, but the local police and court should have conducted one anyway, even without Scalia’s national significance:

William Ritchie, the former homicide commander of D.C.’s Metropolitan Police Department, said an autopsy would put all these questions to rest.

“If you’re called to the scene to investigate a death, you will assume that death is a homicide until your investigation proves otherwise,” Ritchie said. “If the death scene was handled in an appropriate manner, we wouldn’t be having this discussion.”

Most of the reason for overlooking Scalia’s work comes from the supercharged political climate surrounding the Supreme Court. In my column for The Week, I point out the irony of this, considering that his originalist approach would have reduced the political stakes for future appointments had his advice been heeded more often by his colleagues:

A number of well-meaning thinkers have proposed stopgap solutions for this impasse. Jonathan Adler at The Washington Post suggested that a recess appointment of a retired Supreme Court justice could act as a stopgap until the next president takes office. Some argue that an open seat will actually work in favor of compromise; it would not affect cases that will get a substantial majority on the court, but any 4-4 ties that Scalia’s vote would have settled will result in punts that have no precedential weight. Others want the Senate majority to work with the president to select a handful of mutually acceptable candidates, with the promise of expedited confirmation — even though all of the political incentives will drive both sides away from compromise.

None of these solutions will work in a system where people lack the basic understanding of constitutional prerogatives on both ends of Pennsylvania Avenue, and in which the Supreme Court has eclipsed both Congress and the president in creating policy. Scalia, ironically, spent nearly three decades attempting to move the court back to a less activist model. Had that effort succeeded, it would have made his own passing remarkable in itself rather than a bugle call for both sides to divvy up the spoils.

Via Instapundit, Randy Barnett reminds everyone of what they should have spent the last few days doing — reflecting on the work and wisdom of a judicial giant:

The term “originalism” was actually coined in 1980 in a law review article by then-Stanford Law professor Paul Brest in which he criticized scholars and others who claimed that the text of the Constitution should be interpreted according to the original intentions of its drafters, who are referred to as “the framers.” Then, in 1985, in a highly publicized and controversial speech to the American Bar Association, Ronald Reagan’s Attorney General, Edwin Meese powerfully defended what he called, “a Jurisprudence of Original Intention.”

As Meese recalls, behind the scenes, Scalia — then a judge on the D.C. Circuit Court of Appeals — objected that this version of originalism was wrong. Rather than search for the original intention of the framers of the Constitution, Scalia maintained that we should instead be identifying the “original public meaning” of the text as it would have been understood at the time of its adoption. More than any other, this single refinement obviated many of the objections that had been made to originalism in the 1980s by living constitutionalists like Brest and others. In the 1990s it led to what is now sometimes called “the New Originalism.”

Having shaped the theory itself, Scalia then employed it in one of the most important cases of our lifetime: the 2008 case of District of Columbia v. Heller, which restored a previously lost clause of the Constitution: the Second Amendment. Since the 1960s, gun control advocates — who were rarely originalists themselves — had been contending that the right to keep and bear arms in the Second Amendment solely protected what they called a “collective right” of states to have a militia. And most lower federal courts of appeals then adopted this view when considering newly-enacted gun control measures. Then, starting in the 1980s, originalist scholars began pushing back with evidence that, like the rest of the Bill of Rights, the amendment protected the fundamental right of individuals to own, possess, carry and use firearms, subject to the reasonable regulation thereof. …

Of course, Antonin Scalia did so much more than these two things and there is good reason why he is likely the most discussed justice in every constitutional law course taught in the U.S. His dissents are crystal clear, accessible, engaging, sometimes caustic and always provocative. He freely admitted he wrote them for law students to read, not for his fellow justices. And, as I teach my students, even his 2005 concurring opinion in the Raich case is much better reasoned than the majority opinion of Justice Stevens that Scalia refused to join.

But if these two things were all he had done — improved the theory of originalism and shepherded its eventual adoption by the Supreme Court to restore an entire amendment in the Bill of Rights — Antonin Scalia would still be among the most impactful justices in our history. His shoes will be very difficult for anyone to fill, but he has set a powerful example for future generations of judges to follow.

The broken political process surrounding and overshadowing Scalia’s death is one of the litany of corrosive consequences of judicial activism and the breakdown of the law-making prerogative of the legislature. Antonin Scalia’s work reminds us of a better path, one that respects the checks and balances of the Constitution and the subsidiarity that it embraces. While the political fight matters, this work should matter more — especially if we want to return to a tradition of which Scalia was the last representative.


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