President Donald Trump, who says he will announce on Thursday his nominee for the United States Supreme Court, has promised to appoint someone “like Justice Scalia.” According to one recent study, being “like Scalia” means fealty to the Constitution’s original meaning, devotion to Scalia’s writings, and a willingness to write one’s own opinions rather than just signing on those of colleagues.
This study, however, says absolutely nothing about Scalia’s two most important attributes as a Justice: His votes in actual cases and how he expressed disagreement with his colleagues. If honest attention were paid to that data, a Justice ”like Scalia” would mean something very different than what most members of the public think that it means.
The reality is that, when deciding cases, as opposed to off the bench rants and catty remarks in dissenting opinions, Scalia was not close to being an originalist. He decided cases based on his personal values (mostly though not always conservative) even though he denied that more stubbornly than any Justice in history.
No doubt Scalia was the master of the show. He was a delightful extrovert and a genuinely unforgettable character. His law clerks loved him. He inspired an entire generation of conservative law students, legal academics and judges. He was a fun-loving, globe-trotting (on other people’s dimes), deeply playful personality. He was a great writer and a skilled questioner. But, as Justice Scalia once remarked about Justice Ginsburg, even good people can "have very bad ideas."
To be “like Scalia” means to vote to strike down state and federal laws on a regular basis even when no persuasive case based on text or history supported those opinions. Off the bench he yelled at audiences that the Constitution “is dead, dead, dead,” but on the Court he voted for a living, evolving Constitution.
The examples could fill a book. His obsession with a “color-blind” Constitution, which drove his rejection of every affirmative action plan he ever reviewed, was based on neither text nor history but Scalia’s personal belief that racial preferences designed to help minorities do more harm than good. He may have been right or wrong about that as a policy matter but nothing in the text or history of the Constitution remotely supports his view.
His strong belief in cases like Citizens United that corporate spending on political campaigns was so important that it outweighed legitimate interests in stopping corruption and the appearance of corruption was based on neither text nor history. His view that injured citizens are not allowed to sue their own states under federal law no matter how serious the violation was based on neither text nor history. His view that government regulations of property (as opposed to physical invasions of property) could amount to illegal takings was based on neither text nor history. We could go on and on (one of us has) through virtually every area of litigated constitutional law.
Scalia invoked judicial self-restraint in favor of the will of the people when the result suited him, for example in same-sex marriage and abortion decisions, but he often abandoned the same principle as in Shelby County v. Holder when voting to overturn a key section of the Voting Rights Act. He voted for a principle in that case that Congress must have a strong reason to treat different states differently that is flatly and wildly inconsistent with both the text and history of the Reconstruction Amendments at issue in that case (which were passed in part to specifically give Congress the power to treat different states differently when dealing with issues of race).
A Justice “like Scalia” would also be one who treats his colleagues with little respect and always thinks he is the smartest Justice on the case. His vituperative attacks on other Justices were often both unnecessary and hypocritical to the core. For example, as one of us has written before, in his dissent in the same-sex marriage decision Obergefell v. Hodges, he lamented the “practice of constitutional revision by an unelected committee of nine,” and said that any “system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” He also wrote that in that case, “If… I ever joined an opinion for the Court that began [quoting Justice Kennedy’s majority opinion], I would hide my head in a bag.”
Yet, just three days later, the same Justice who wrote those intemperate words penned a scathing dissent when the Court upheld a ballot initiative passed by the people of Arizona that created a bi-partisan redistricting commission. The case involved a decision by the people of Arizona on a core issue of democratic self-government. They were tired of partisan posturing when it came to the vital task of dividing the state into voting districts (who isn’t?). Although Scalia stated that there was no proper jurisdiction over the case, he also wrote in his usual bombastic tone that the majority’s “resolution of the merits … is so outrageously wrong, so utterly devoid of textual or historic support, so flatly in contradiction of prior Supreme Court cases, so obviously the willful product of hostility to districting by state legislatures, that I cannot avoid adding my vote to the devastating dissent of the Chief Justice.” In reality, Chief Justice Robert’s dissent was only “devastating” to those Justices willing to freely and without cause replace the decision of the people of Arizona with the decision “of an unelected committee of nine lawyers,” on an issue where the constitutional text was ambiguous, its history contestable, and the prior case law on point truly mixed.
Scalia, an originalist in rhetoric only, was also an arrogant jurist with little patience for disagreement or for that matter the rule of law as he often hid his policy preferences behind a façade of humor, insult, and catchy turns of phrase.
Ironically, the legacy of such a person can only be to make more acceptable the notion that judges are ideological partisans. In fact, when the President says he wants someone “like Scalia,” what he really means is he wants a judge who will vote to overturn Roe v. Wade, and vote much of the time the way the Republican Party would prefer.
Don’t be fooled by the rhetoric. Scalia was a politician all the way down, and one more than willing to replace the decisions of other more accountable government officials, and the people of the states, with his own decisions — whether or not that reversal was justified by the text or history of the United States Constitution.