As President Obama prepares to appoint a successor to Scalia, one lesson is clear: The most successful justices in the twentieth century—from Scalia to Brennan to Louis Brandeis—have left their mark on the law not as legalistic craftsmen but as constitutional visionaries. In other words; it’s not enough to embrace a purely political or a bloodlessly academic vision of constitutional interpretation; to succeed on the Court, you need to believe passionately in the constitutional values you are defending.
Whether you conclude that Scalia consistently embodied or betrayed his constitutional methodology of originalism, it’s clear that he distinguished himself as one of the few justices on the Court who had a clear constitutional methodology to betray. In 1993, fresh out of law school, I wrote to Scalia asking for an interview about his jurisprudence. He sent back the following, charming note:
Since being a judge, I have had a uniform policy of declining interviews for articles about me. That policy undoubtedly has its costs, but is in accord with our judicial tradition of avoiding publicity. (As you know, I am big on tradition.) It is tempting to make an exception for a piece of the rare sort you describe, but a rule is a rule. (I am also big on rules.) I am sorry to disappoint—and wish both of us good luck in your article.
In the article that emerged, brimming with youthful overconfidence, I argued that Scalia’s note was a perfect miniature of his jurisprudence. He emphasized the importance of separating his personal preferences from his jurisprudential conclusions, but concluded that he was bound by history, rules, and tradition to resist temptation. Scalia’s promise to separate his constitutional conclusions from his personal preferences was admirable, I suggested, but he sometimes failed to fulfill it, picking and choosing among the original text, history, and original understanding of the Constitution when they clashed with his firmly held policy views.
More than two decades later, it’s clear that the piece failed to give Scalia his due. It’s true that Scalia never confronted the sharpest challenges to his originalist jurisprudence—in particular, to the liberal originalist academics such as Akhil Amar of Yale Law School and litigators at groups like the Constitutional Accountability Center, who insisted that text and history, honestly interpreted, should lead to progressive as well as conservative results. Scalia never gave a satisfactory answer in public to why he thought Brown v. Board of Education was correctly decided, in light of the fact that leading conservative legal historians acknowledge that the framers and ratifiers of the 14th Amendment, in 1866 and 1868, did not intend to strike down school segregation. (When I asked Scalia the question point blank at a convivial dinner a few years ago, he replied, with a belly laugh, that no theory is perfect.) He also never engaged the extensive history of the original understanding of the 14th Amendment, suggesting that its framers and ratifiers intended to forbid not all racial classifications, as Scalia argued, but only those affecting civil rights, not political or social rights. This original understanding meant that Bush v. Gore was also impossible to justify on originalist grounds, since the framers of the 14th Amendment did not intend the equal-protection clause to apply to voting at all. Scalia brushed off this challenge, too, with the impatient, “Get over it!” (For a full bill of particulars against Scalia as an inconsistent originalist, see this review of his book, A Mattter of Interpretation, or pick up any law review published since his confirmation in 1986.)