The novelist Scott Turow has an article in the New York Times magazine making the argument that Justice Scalia has moved toward a more civil libertarian position in recent years because of his originalism. I find his analysis rather shallow and ill-informed. He’s certainly right to point out that Scalia has, from time to time, joined an unexpected majority in seeming conflict with his previously stated views, but that is going to be true of any justice whose rulings you examine over a long period of time. And he’s right to note that there is, in my view and apparently in Turow’s, that Scalia has proposed stricter limits on presidential authority than one might have expected. I’ll post a long excerpt below the fold sitting out Turow’s basic argument. He starts with some of Scalia’s recent decisions involving Bill of Rights issues and criminal defendants:
Less noted, however, is the fact that Justice Scalia, especially in the last decade, has frequently taken an expansive view of the Bill of Rights, thus supporting defendants in criminal cases. Scalia is one of the intellectual godfathers of a strand of Supreme Court decisions, crystallized by Apprendi v. New Jersey, that revolutionized sentencing laws. Following a strict interpretation of the Fifth Amendment’s guarantee of due process of law and the Sixth Amendment’s right to trial by jury, Scalia has insisted that any fact used to extend punishment beyond normal statutory limits must be specified and proved to a jury beyond a reasonable doubt. Despite his fevered support for capital punishment, Scalia also joined a court majority in holding that the Constitution requires a death sentence to be decided by a jury, rather than by a judge, effectively setting aside every capital sentence still on direct appeal in five states.
Nor are Scalia’s pro-rights decisions limited to one arcane area. In Kyllo v. U.S. (2001), Justice Scalia, writing for the court, deemed police use of heat-seeking technology to detect whether marijuana was being grown inside a house a violation of the Fourth Amendment’s prohibition on unreasonable searches. In a 2004 opinion, Scalia spoke for a court majority in finding unconstitutional the widespread practice of using recordings or prepared statements to the police as a substitute for the testimony of unavailable witnesses. And last term, supported by the court’s four more liberal justices, Scalia held that a defendant wrongly deprived of the lawyer of his choice gets a new trial, no matter how overwhelming the evidence of his guilt.
So far so good. One could also add, though this is an older ruling, his opinion in Texas v Johnson, the flag burning case. But of course this is only half the picture. One could just as easily make a list of cases where Scalia took a decidedly un-libertarian position in similar cases. Look no further than his recent ruling in Hudson, which effectively guts the 4th amendment by eliminating any possibility of redress in cases of police violations. More interesting, I think, are the more recent cases involving presidential authority:
In adjudicating the war on terror, Scalia has come down strongly on behalf of the administration and its prisoners in a number of cases. The extensive powers claimed by the Bush administration would seem to pose a problem for originalists, because the Bill of Rights was indubitably added to the Constitution to keep the new American executive from repeating the monarchal abuses of King George. Yet in a speech in suburban Cleveland in March 2003, just before the invasion of Iraq (where one of his sons would serve), Justice Scalia told his audience that “most of the rights that you enjoy go way beyond what the Constitution requires” and predicted that in war time “the protections will be ratcheted right down to the constitutional minimum.” In one of the first war-on-terror cases to reach the court, Rasul v. Bush, a majority agreed that the foreign detainees at Guantánamo had a right to file habeas corpus petitions. Scalia strongly dissented, as one might have expected given the fact that the Constitution’s protections are generally intended for only American citizens.
It thus verged on the breathtaking when Justice Scalia wrote in Hamdi v. Rumsfeld: “Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis. … Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.”
Hamdi, an American citizen, was supposedly captured among Taliban forces in Afghanistan. Four justices thought that the Congressional resolution passed immediately after 9/11, authorizing the use of force against Al Qaeda, permitted the president to detain Hamdi as an enemy combatant. A majority ruled, however, that Hamdi could not be held indefinitely simply on the president’s say-so and was entitled to a meaningful hearing. Justice Scalia would not even concede the first point. Instead, he declared Congress has not given the president the power to hold any American, even one who has taken up arms against his country, as an enemy combatant and instead must press criminal charges or let him go.
Scalia’s dissent in Hamdi was indeed a welcome and quite surprising opinion, particularly in light of his appalling earlier speech about paring our rights down to a bare minimum in times of war. What changed in the meantime? That’s a good question, but I don’t think Turow has a good answer for it. Here is his attempt at one:
Justice Scalia is led to these seemingly divergent positions by his unyielding adherence to a school of constitutional interpretation called originalism. To Scalia, the Bill of Rights means exactly what it did in 1791, no more, no less. The needs of an evolving society, he says, should be addressed by legislation rather than the courts.
In all of this, Scalia is first and foremost a legal formalist — meaning that to him, the rules are the rules. He did not sign on to the Apprendi cases out of any special sympathy for criminal defendants — indeed, he once wrote an opinion refusing to uphold an acquittal on the grounds that the defendant’s motion for acquittal was filed one day too late. Rather, he was motivated by the assumption that, as he put it in the capital-punishment case, “the right of trial by jury is in perilous decline.” In other words, over the years the right had come to be interpreted more narrowly than in 1791.
But this explanation is difficult to maintain in light of other Scalia rulings. If his only concern is the meaning of the text in 1791, then I’d certainly like to hear a coherent originalist defense of his opinion in Raich. Unfortunately, Scalia does not even attempt to give one, ignoring completely the original meaning of the interstate commerce clause. So where does the explanation for this lie?
I think Jack Balkin probably got it about right: Scalia likes bright line rules and dislikes balancing tests, thus he rejected both O’Connor’s strained attempt to split the baby and the administration’s insistence that it had the power to arbitrarily do away with habeus corpus in individual cases. Scalia is the polar opposite of O’Connor in this regard. He has never been one to go for muddled and vague attempts at splitting the baby; he wants a bold statement of the law that cannot be misinterpreted.
In contrast to Turow’s almost pollyannaish explanation, what this really points out is that it’s simply not possible to be a consistent originalist of the type that Scalia claims to be. Scalia actually admitted that once when he said that he would vote to overturn a law that prescribed public flogging as punishment for a crime, something considered quite normal in 1791. That’s why, in my view, any talk of originalism as a genuine form of legal formalism has to end. It’s a wonderful theory that, in practice, must be jettisoned at times even by its most vocal proponents.
The notion that originalism provides an unerring legal formula for reaching correct results is demonstrated merely by looking at the divergent views of the court’s two ostensible originalists, Scalia and Thomas. Contrary to the incredibly common myth among liberals, Thomas is not a lapdog for Scalia at all. Indeed, they have often clashed significantly, no more obviously than in the Hamdi case I cited above.
Scalia demanded that the constitutional requirement for a Congressional suspension of habeas corpus be applied rather than allowing the administration decide on its own, without any pretense of congressional authority, to suspend it in individual cases as it saw fit. Thomas, meanwhile, swallowed the administration’s assertions hook, line and sinker. Balkin’s assessment of his ruling was dead on:
Thomas swallows the Administration’s strongest claims hook line and sinker. If the Executive determines that an American citizen is an enemy combatant, that is all the process that is due. Courts have nothing to say. This is an outrageous position for a Justice who purports to defend the American Constitution. Thomas’s opinion shows how easily the theory of the “Unitary Executive” so much beloved by legal conservatives can be turned into a justification for authoritarianism. Because the Executive needs to be energetic, act in secrecy, and with dispatch, power to make decisions about war and foreign affairs must rest in a single hand. Because it must rest in a single hand, there can be no oversight by the judiciary. “Judicial interference in these domains destroys the purpose of vesting primary responsibility in a unitary Executive.” That means that the Executive can simply round up whoever it likes, declare them an enemy combatant, and hold them indefinitely. Guaranteeing rights to be heard, present evidence, and consult with counsel will interfere with the ability of the Executive to interrogate detainees. Although Thomas is often praised for being independent-minded, when it comes to assertions of executive power– and particularly executive power to mistreat prisoners– he is the most syncophantic of the Justices.
Yet in other areas, particularly in commerce clause cases, Thomas is a much more consistent originalist than Scalia. All this just means that it simply isn’t possible to be a consistent originalist, at least not a consistent conservative originalist. It is possible, I think, to be a consistent liberal originalist, but since we have no one of that particular bent on the court that is still a theoretical belief.