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12.20.12

In Robert Bork’s Death, a Reminder of Scalia’s Inconsistency

The original originalist never made it to the high court, but his supposed brother in arms, Antonin Scalia, has wrought more than enough damage on his own, writes Paul Campos.

If you were wondering just how high the stakes were on Nov. 6, look no further than Wednesday morning’s news of the death of Robert Bork. The constitutional originalists may have taken some heart in the passing of their embattled icon, since they’d already gotten a Bork on the Court—Antonin Scalia, nominated by Ronald Reagan and confirmed in September 1986—barely 12 months before a nomination battle so vicious that it generated its own verb.

But as the raging gun-control debate has once again reminded us, Scalia is only an originalist when that method suits his preferred outcome, which helps highlight why the defeat of Bork’s nomination was a crucial moment in the political history of the Supreme Court.

If Bork had been confirmed, the past quarter-century would’ve seen a crucial extra vote for the originalist agenda—and likely a more consistent and committed one.

Bork and Scalia would likely have created a powerful if somewhat awkward alliance on the court. Unlike the more conventionally academic Bork, Scalia’s primary weapon has been the sarcasm-drenched broadside. For example, his dissent in a major affirmative-action case  decided in his very first term. After Scalia’s new colleagues rejected the civil-rights suit by a white working-class man named Brian Johnson, who didn’t get a job that went to an arguably less qualified woman, Scalia unloaded both barrels:

“In fact, the only losers in the [affirmative action] process are the Johnsons of the country, for whom [the civil-rights law] has been not merely repealed, but actually inverted. The irony is that these individuals—predominantly unknown, unaffluent, unorganized—suffer this injustice at the hands of a Court fond of thinking itself the champion of the politically impotent.”

Conservative opponents of so-called “judicial activism” were in ecstasy, and in the years that followed, they celebrated Scalia endlessly as a “brilliant” and “principled” opponent of legislating from the bench, living constitutions, and other hobby horses of the right wing. He has been the originalist that Bork never had a chance to be.

And yet in the process, he has fulfilled Nathaniel Hawthorne’s maxim that old men become parodies of their younger selves. This came to mind after last week’s unspeakable tragedy in Newtown led me to re-read Scalia’s opinion in the landmark 2008 ruling District of Columbia v. Heller, in which the Court for the first time discovered in the Second Amendment an individual right to possess firearms unrelated to service in a militia.

Even by the low standards of judicial sophistry, the opinion is a depressing exercise in bloviating certitude. Scalia cherry-picks facts and examples to answer the very complex question of when exactly Americans came to believe the Second Amendment embodied an individual right—even though the historical record makes it quite likely that the Constitution’s framers never intended that.

One of his examples—an excerpt from a two-day speech given by Charles Sumner on the Senate floor in 1856—serves to show just how little Scalia is to be trusted these days on either points of history or law, and especially on the relationship between the two, even though this relationship is crucial to his supposedly “originalist” method.

In recent years Scalia’s opinions have come to reflect no discernible legal theory, unless “outcomes that Antonin Scalia likes” counts as a legal theory.

Scalia quotes Sumner’s speech in support of the idea that an individual right to bear arms was well established even in the middle of the 19th century. But anyone who bothers to read the original speech will discover that it stands for a completely different proposition. Sumner, an abolitionist, was arguing not for an individual right to possess firearms, but for the right of the people of Kansas to organize themselves into armed citizen militias to combat pro-slavery forces from outside the state. In other words, Sumner’s speech has exactly the opposite meaning from the one Scalia gives it.

Furthermore, for a man whose entire judicial philosophy is based on a careful reading of the Constitution itself, his excruciatingly detailed linguistic analysis of the Second Amendment managed to effectively neuter the first thirteen of that text’s twenty-seven words, while at the same time ignoring a mountain of evidence that the crucial phrase “keep and bear arms” referred at the time of the amendment’s ratification to military rather than private weapon possession.

But more astonishing than his outright misreading of both the historical record and the Constitution’s language in Heller is Scalia’s brazen hypocrisy. Only five years earlier, the justice had savaged the Supreme Court’s majority for overturning a 17-year-old precedent by striking down a law criminalizing consensual same-sex relations between adults.

According to Scalia, the ruling was “the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda.” In his mind, what should have decided the case was that “sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights.”

And yet in Heller, Scalia happily ignored a 70-year-old precedent, which (as the dissent pointed out) had been followed by hundreds of federal judges over the decades—not to mention the contrary historical evidence. Scalia’s theory of constitutional precedent could be summarized as, “Supreme Court decisions should be followed in future cases, except when they shouldn’t be.”

Indeed in recent years Scalia’s opinions have come to reflect no discernible legal theory, unless “outcomes that Antonin Scalia likes” counts as a legal theory. The most outrageous example of this, of course, remains Bush v. Gore, which violated virtually every tenet of constitutional philosophy Scalia had previously expounded. (To understand the true bizarreness of that case, imagine the liberal members of the Supreme Court installing Barack Obama as president on the grounds that there’s never been such a thing as a constitutional right to privacy.)

Would a Justice Bork have devolved into an originalism of convenience as well? We will never know, but in any case Bork’s principled philosophy, when combined with Scalia’s increasingly unprincipled jurisprudence, would have done more than enough damage.

The bottom line is that if Robert Bork’s nomination hadn’t been defeated, then for much of the last quarter century, Antonin Scalia, rather than railing from the sidelines as he so often does these days, would have been the deciding vote on the most important legal issues of our day.

No wonder conservatives have never really gotten over Bork’s defeat.