Justice Scalia's Faux Originalism

FILE - In this Oct. 18, 2011 file photo, U.S. Supreme Court justice Antonin Scalia looks into the balcony before addressing t
FILE - In this Oct. 18, 2011 file photo, U.S. Supreme Court justice Antonin Scalia looks into the balcony before addressing the Chicago-Kent College Law justice in Chicago. On Saturday, Feb. 13, 2016, the U.S. Marshals Service confirmed that Scalia has died at the age of 79. (AP Photo/Charles Rex Arbogast, File)

The adulation by admirers of Justice Antonin Scalia over his alleged role as a conservative constitutional steward who applied neutral, nonpartisan principles, is pure myth. While promoted by conservative ideologues who fawn over Justice Scalia's flamboyant jurisprudence, holding him up as an icon for conservative principles, is simply hard to take.

Justice Scalia was, in fact, one of the most unabashedly partisan judges ever to sit on the Supreme Court. His manipulation of the constitution was brilliant, and maddening, mostly because he and his followers pretend otherwise.

Sometimes Scalia claimed to be a textualist, sometimes not. Sometimes he claimed to be an originalist, sometimes not. Sometimes he glorified judicial restraint and vilified his colleagues for their "Czarist arrogance" in expanding constitutional rights. Sometimes he was a clear example of judicial activism.

He made his position known often with sarcastic and demeaning rhetoric . Not surprisingly, his constitutional maneuvering almost always brought him, and his boosters, to the outcome they sought, whether to stop abortions and limit homosexual rights, make guns freely accessible, limit minorities right to vote, give corporations the right to spend unlimited cash in elections and their right to pray, and, of course, to ensure the election of our 43rd President.

A few examples from Justice Scalia's body of work are noteworthy. Consider his approach to the Eleventh Amendment, which says that no state can be sued in a federal court "by citizens of another state, or by citizens or subjects of any foreign state." Note what is absent from the text of the Eleventh Amendment: there is no language that bars citizens of the same state from suing their own state in a federal court. But Justice Scalia, the icon of textualism, somehow managed to invent new language for the Eleventh Amendment, construing the Amendment to bar citizens of the same state from suing in federal court, thereby closing the courthouse door to minorities, women, homosexuals, the disabled, and others. How did Justice Scalia explain this radical departure from textualism?

He writes: "We have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition which it confirms." What presupposition? According to Justice Scalia, the idea that states are sovereign and do not wish to be sued in a federal court. Even so, the text of the Eleventh Amendment does not include this "presupposition."
Consider the landmark gun rights case, Heller v. District of Columbia, in which Justice Scalia, ever the outspoken defender of the doctrine of judicial restraint, shattered longstanding precedent to announce, to the delight of gun worshipers, that the Second Amendment includes a private right to own a pistol. Where does the Amendment say that?

Longstanding Supreme Court precedent focused on the Framers' singular concern, as the Second Amendment explicitly states, with the "necessity of well-regulated militias," and the need to protect these state militias from being emasculated by a federal government that could forbid those in the militias to possess weapons (therefore "the right of the people to keep and bear arms shall not be infringed").

But Justice Scalia marginalized this clause. He de-coupled the militia clause from the right to bear arms clause, making the bizarre and illogical suggestion that instead of intending to protect the effectiveness of state militias, the Framers were more interested in creating a right of private gun ownership for all people -- which presumably included criminals, slaves, lunatics, and children -- so these people could enjoy hunting and sport shooting.

A few additional points. Justice Scalia had always been a passionate defender of the political process for resolving controversial issues; he preferred that process to the Supreme Court's power to impose a rigid national rule, especially if (1) a law is enacted by a co-equal branch of the federal government; (2) there is no indication that the law is not working effectively; and (3) when there is no urgent need to overrule longstanding precedent.

These are the ingredients cited by conservatives who embrace the doctrine of judicial restraint. But in Heller, and several other cases, Justice Scalia turned it upside down, and was all too willing to reach out and strike down federal laws when there was no urgent need to interfere, and offered no articulated principles for this pattern of constitutional interpretation. The hypothesis that ideology dictated the decision is inescapable.

Too, Justice Scalia's use of history to support his interpretation was mysteriously selective, and in Heller much less convincing than Justice Stevens' use of history to reach the opposite conclusion. The only difference is that Justice Scalia's dogmatic view of history was able to enlist the Court's conservative majority. Indeed, as Judge Richard Posner has observed derisively, so-called historical evidence is "law office history" - where judges who advocate a particular position send their teams of brilliant law clerks scurrying to find historical documentation for their position. Justice Scalia, as any judge, is able to locate an historical basis for his position, however disinterested that historical basis may be.

One of Justice Scalia's bete noirs was the Due Process Clause; he consistently attacked his colleagues for using it to find substantive rights such as abortion, procreation, contraception, marriage, the right to raise and educate one's children in the Clause's "Right to Liberty."

To Justice Scalia, the Due Process Clause guarantees procedural rights only, not substantive rights. But of his dismissal of the Due Process Clause's protection of substantive rights, again he goes only so far. In the landmark case of McDonald v. City of Chicago, the Court held that the Due Process Clause incorporated as a substantive matter the Second Amendment's right to private gun ownership and was applicable to the states. In his concurrence, Justice Scalia was entirely willing to find the substantive right to own a gun contained in the Due Process Clause, but he never explained why only this particular right should be preferred over all others.

Justice Scalia's defense of federalism and states rights', as noted above, was the basis for his willingness to strike down several federal laws Congress enacted under the Commerce Clause -- criminalizing gun possession in schools and providing a civil remedy for gender-based violence. These laws were passed by Congress under principles to which the Court since 1937 always deferred. That is, the Court accepted Congress's view of the scope of the commerce clause as long as Congress had a rational basis to find that its regulation was substantially connected to commerce.

However, despite Congress's singular place as the democratically-elected, law-making branch, and donning the robe of the judicial activist, Justice Scalia was more than willing to join in striking down these laws.

Particularly egregious was the decision in Citizens United v. Federal Election Commission, which struck down under the First Amendment's Free Speech Clause the federal McCain-Feingold Act that regulated campaign contributions by corporations, and with it nearly a century of First Amendment jurisprudence and at least two prior Supreme Court precedents.

It is difficult to imagine how this embodiment of raw political activism could square with the doctrine of judicial restraint, and Justice Scalia's claim to originalism. To suggest that the Framers believed that a corporation should be treated like a real person and enjoy the right to free speech and contribute to political discourse is preposterous.

Finally, Justice Scalia's coup de grace, perhaps the most indefensible decision by the Supreme Court, is Bush v. Gore. Justice Scalia has always resisted discussing the decision, snapping to questioners to "Get over it." The decision represents a savage betrayal of conservative principles. The majority abandoned all judicial restraint and feverishly reached out to prevent the highest court of the state of Florida, in the midst of its lawful and proper recount of votes, from continuing its lawful task. Why did the Supreme Court's conservative majority intervene and ultimately declare the recount procedure unconstitutional as violating equal protection? And most egregiously, why did the majority declare that its ruling was "limited to the present circumstances" because it "presents many complexities." The majority did not say what those complexities were, nor did they explain that the lack of a uniform standard for counting votes -- the constitutional basis for the majority's ruling -- would have invalidated the entire presidential election, a possibility the Supreme Court somehow neglected to consider. As Justice Stevens wrote in dissent, "This decision can only lend credence to the most cynical appraisal of the work of judges throughout the land."

In an interview published by The New Yorker, Justice Scalia candidly stated that "the only issue was whether we should put an end to it, after three weeks of looking like a fool in the eyes of the world." This is not a constitutional argument. It sounds more like something a judicial activist would say, maybe a judge in an "Imperial Judiciary," that is. It sounds curiously akin to what Justice Scalia described in his dissenting opinion in the landmark abortion case of Planned Parenthood of Pennsylvania v..Casey, where he viciously mocked the majority for its "contrived," "fabricated," and "arrogant" decision. He concluded: "The Imperial Judiciary lives."