CRF Blog

Supreme Confidence

by Bill Hayes

In a 2005 article for the New Yorker, Supreme Confidence, Margaret Talbot profiled the powerful conservative voice on the Supreme Court Antonin Scalia. Scalia’s death in February 2016 has left a vacancy on the court, which is yet to be filled.

Lining up to hear a Supreme Court Justice speak is more like lining up for a rock concert than you might think. This is especially true if the speech is on a college campus and the speaker in question is Justice Antonin Scalia. Ruth Bader Ginsburg is a favorite on the feminist lecture circuit; Clarence Thomas has vivid stories of growing up as a “nappy-headed little boy running barefoot” around Pinpoint, Georgia; Sandra Day O’Connor is the preferred Justice at awards luncheons where crystal figurines are handed out. But Scalia is the most likely to offer the jurisprudential equivalent of smashing a guitar onstage. He might present a scorching opinion that will get him in trouble back in the Court — as he did in January, 2003, when he lambasted judicial efforts to eliminate the phrase “under God” from the Pledge of Allegiance. (Later that year, the Court agreed to take on the issue, and Scalia had to recuse himself.) Or he might stun a pompous liberal with a bearish verbal swat; recently, when a questioner criticized Scalia’s judicial approach by invoking Alexander Hamilton, Scalia retorted, “Hamilton, sir, was writing the Constitution, not interpreting one.” He will be funnier, more sarcastic, and more explicit about his beliefs than most people expect a Supreme Court Justice to be. And curiosity about him — what he will say or do next — has only grown now that there is talk that he could become Chief Justice, replacing William Rehnquist, who is suffering from thyroid cancer. President Bush has said that, of the current Justices, he admires Scalia and Thomas the most, and Scalia, who is sixty-nine, is recognized, even by his ideological opponents, as the singular conservative mind of the Rehnquist Court.

On a damp, cold afternoon in November, Scalia spoke at the University of Michigan Law School. Two hours before the lecture, the line extended down the steps of the school’s auditorium. Many in the crowd were liberal students — this was Ann Arbor, after all — who were nursing a grudge over Scalia’s snappish minority opinion in Grutter v. Bollinger, a 2003 case in which the Court upheld an affirmative-action program at Michigan Law School. The school had argued, and the majority had agreed, that having a “critical mass” of minority students offered an “educational benefit” — an improvement in “cross-racial understanding.” But Michigan’s “mystical ‘critical mass’ justification for its discrimination by race challenges even the most gullible mind,” Scalia wrote in his dissenting opinion. “The admissions statistics show it to be a sham to cover a scheme of racially proportionate admissions.” Moreover, he went on: “This is not, of course, an “educational benefit” on which students will be graded on their Law School transcript (Works and Plays Well with Others: B+) or tested by bar examiners (Q: Describe in five hundred words or less your cross-racial understanding). For it is a lesson of life rather than law — essentially the same lesson taught to (or rather learned by, for it cannot be “taught” in the usual sense) people three feet shorter and twenty years younger than the full-grown adults at the University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school kindergartens.”

Outside the auditorium, a dozen or so students marched in a ragged oval, chanting, “Two, four, six, eight, separation of church and state!” — not the most original of slogans but one that they thought appropriate for a Justice who so often stresses the deep and redeeming religiosity of the American people. One student had drawn a poster of Scalia as Oscar the Grouch, Such mockery does not seem to bother Scalia; his certainty runs so deep that he views detractors with mild amusement. And he revels in intellectual combat. Every year, he hires at least one liberal clerk, to give him somebody to spar with. Sister Helen Prejean, the anti-death-penalty crusader, recalls in her recent book, “The Death of Innocents,” that she once approached Scalia in the New Orleans airport to say that she was planning to attack his views in print. “I’ll be coming right back at you,” he said, jabbing his fist in the air.

At 4:30 P.M., Scalia strode heavily to the lectern, his head thrust forward. He has a square, ruddy face; thick black hair with a patent-leather sheen; gold-rimmed glasses; and an almost daunting air of vigor. He began by explaining that, as a jurist, he is an “originalist” — or, as he put it, in his habitual tone of pugnacious beleaguerment, one of “a small hearty minority who believe in a philosophy called originalism.” This cohort was so small, he said, that you could “fire a cannon loaded with grapeshot in the faculty of any major law school” — an experiment that Scalia might enjoy trying — “and not hit an originalist.”

Originalists, he went on, feel that judges should adhere to the precise words of the Constitution, and believe that the meaning of those words was locked into place at the time they were written. Scalia likes to say that a Constitution is about “rigidifying things,” whereas elections introduce flexibility into the system. Although proponents of originalism claim that it is a politically neutral method, in Scalia’s hands it usually leads to conservative results — at least on social issues like abortion, capital punishment, and gay rights.

The philosophy that an originalist sets himself against most firmly is that of the Supreme Court Justice William Brennan, who, in 1985, argued that “the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems.” Scalia sees this approach as an expression of judicial arrogance that all too often leads to the “discovery” of bogus new rights — such as the “right to privacy” that undergirds two decisions that Scalia loathes, Roe v. Wade (1973) and Lawrence v. Texas (2003), which declared unconstitutional a law forbidding homosexual sodomy. In his speech, Scalia noted derisively that, in a recent case, his fellow-Justices had opted to leave open the question of whether there is a “right to die.” Adopting the orotund voice of a newsreel announcer, he joked, “Stay tuned! In the fullness of time, a beneficent Court will give the people this new right.”

Scalia said, “People ask me, ‘When did you first become an originalist?,’ like they’re saying, ‘When did you first start eating human flesh?’ “ But originalism used to be orthodoxy, he said. Only in recent times, he added, have judges become enamored of an approach based on — “Oh, how I hate the phrase!” — a “living Constitution.” Scalia uttered these last words with exaggerated disdain, as if he were holding up some particularly noxious leftovers extracted from the back of the fridge.

Originalism wasn’t quite as unchallenged a doctrine as Scalia claims — even before the “living Constitution” approach emerged. In fact, arguments about the proper sources for judicial interpretation go back to the earliest days of the Supreme Court. In a 1793 case, one Justice suggested that American judges take into account both “general jurisprudence” and the “laws and practice” of other “States and Kingdoms,” while another Justice favored basing decisions exclusively on the words of the Constitution. Hugo Black, a liberal who served on the Court from 1937 to 1971, advocated a literal reading of the Constitution — setting himself against colleagues who, in his view, interpreted its words too wishfully. (Black famously objected to busing because he couldn’t find the word “bus” in the Constitution.) Black did not found a school of thought, however. As a named doctrine, originalism didn’t fully emerge until the nineteen-seventies, with the work of Robert Bork, then a Yale law professor, who wrote, “There is no other sense in which the Constitution can be what article VI proclaims it to be: ‘Law.’ This means, of course, that a judge, no matter on what court he sits, may never create new constitutional rights or destroy old ones.”

A “living Constitution” approach, Scalia said, gives a judge far too much interpretive latitude. When the method is applied, for example, to the Eighth Amendment’s ban on “cruel and unusual” punishment, judges must consider “the evolving standards of decency that mark the progress of a maturing society.” This line comes from a 1958 decision, Trop v. Dulles, which declared that stripping a deserter of his citizenship was unconstitutional; the Court has since cited the phrase in a 2002 decision barring the execution of the mentally retarded and in a decision this term banning the death penalty for juveniles. Scalia recited the words in the honeyed singsong voice of a well-indoctrinated child, then offered this mocking gloss: “Every day in every way we’re getting better and better. Societies only mature.” He paused. “They never rot.” [more]