Doctor of Law and Policy faculty member says he was “present in every course.”
By Dan Urman
The legal world lost a legend in the passing of Justice Antonin Scalia. It is hard to overstate Justice Scalia’s effect on the law. Justice Scalia’s influence reaches far beyond the walls of the Supreme Court and our nation’s legal libraries. I have witnessed Justice Scalia’s continued influence in the classroom. In the Doctor of Law and Policy program, where I teach Law and Legal Reasoning, Justice Scalia’s views are present in every course. He was not listed as an instructor on my syllabus, but he has consistently helped me teach legal theories and concepts. First, his opinions are incredibly clear, engaging, and easy to follow. They bring the constitution and the entire legal system to light, and my students enjoy his majority opinions and (increasingly frequent) dissents. I also assign his much celebrated book, “A Matter of Interpretation,” which captures his constitutional and statutory views (and includes responses by prominent critics).
Justice Scalia primarily influenced the legal system in two ways: 1) his theory of how to read statutes and regulations, known as textualism; 2) his theory of how to interpret the constitution, known as originalism.
First, Textualism. No greater authority than Associate Justice Elena Kagan, Justice Scalia’s colleague on the Court (and frequent intellectual adversary) reflected on Scalia’s influence on the law. Kagan noted that in recent years, courts pay increased attention to the text and wording of laws (statutes), instead of trying to figure out the legislature’s purpose by combing through floor statements and earlier versions of bills. According to Kagan, Justice Scalia is primarily responsible for this shift. She noted Justice Scalia has taught everybody (judges, lawyers, law professors, students, and the public at large) “how to engage in statutory interpretation.” Even those who disagree with him place more emphasis on the what the words mean, rather than what they want the words to mean.
In my course on Legislation and Regulation, I ask students to evaluate Justice Scalia’s categorically negative view of “Legislative History.” Legislative History refers to documents and other materials (such as speeches) produced by Congress as a bill is introduced, studied and debated before final passage. Attorneys and judges use these materials in order to determine Congressional intent or to clarify vague or ambiguous statutory language. Justice Scalia felt that it is “utterly impossible to discern what the Members of Congress intended except to the extent that intent is manifested in the only remnant of ‘history’ that bears the unanimous endorsement of the majority in each House: the text of the enrolled bill that became law.” In other words, Scalia believes that judicial references to anything other than the bill that became law lacks democratic legitimacy: every member did not vote on that earlier version or floor statement. Many of my students noted the appeal of this view, because reliance on legislative history could give undue influence to lobbyists (I provide them with this example). Scalia is famous for refusing to join any portions of opinions that reference legislative history, which he once referred to as “looking over a crowd of people and looking over the heads of guests for one’s friends.” To capture Justice Scalia’s influence, Chief Justice Roberts used this very metaphor at his 2005 confirmation hearings to criticize judicial citations of foreign law.
Justice Scalia is perhaps best known for his constitutional theory of originalism. Put simply, this approach states that Justices should interpret constitutional provisions based on the original public meaning of the terms when the ratifiers passed them. Like textualism, laws should mean what they meant when they were enacted, and nothing beyond it. Similar to his theory of textualism, Justice Scalia believes this is the most democratically legitimate approach, because “We the People” ratified the Constitution through a super-majority process (2/3 of the House and Senate, and ¾ of state legislatures, so “the people” can weigh in twice). In other words, if you want to change what the Constitution means, you should not ask the Supreme Court to change it for you. Instead, you should follow the (super) Democratic process outlined in Article V of the Constitution.
As Scalia himself noted, originalism sat on the fringes of academia as recently as 25 years ago. His persistent efforts on and off the bench helped bring it into the mainstream. Scalia served as one of the first faculty advisors for the “Federalist Society for Law and Policy Studies,” a conservative and libertarian legal organization formed in 1982 by law students at the University of Chicago, Yale and Harvard. In my legal theory course, I assigned “The Rise of the Conservative Legal Movement: The Battle for Control of the Law” by Steven Teles.
This book discusses how originalism, with Scalia’s help, rose alongside concerted efforts to change the debate in law schools, professional networks, and the judiciary. It helps trace the journey of ideas from legal journals to the upper reaches of the judiciary.
Originalism, like all theories, has its critics. Many of these detractors note that originalism cannot account for the most important case in Supreme Court history, Brown v. Board of Education (the 1954 desegregating schools and other legal forms of racial segregation), because the drafters and ratifiers of the 14th Amendment did not intend for the amendment to desegregate public schools (which were not widely in existence at the time). In my legal theory course, I ask students if originalism’s inability to account for Brown v. Board is fatal to the theory. Many of them, like Justice Scalia, argue that it is possible to suggest that Brown v. Board was merely correcting where the court went wrong in Plessy v. Ferguson 58 years later. Furthermore, Scalia notes, originalism might not be perfect, but it surely beats the alternative.
Justice Scalia also said that his theory of originalism was “neutral,” and did not always produce the results he may personally have preferred politically. Referring to his protection of the 1st Amendment right to burn a flag, Scalia said that if it were up to him, he “would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag….but I am not king.” He once quipped that he should “be the darling of the criminal defense bar” because he has stood up for defendants’ rights in the original Constitution. In majority opinions and dissents, Justice Scalia applied the 4th Amendment in an unyielding manner, arguing that the framers cared deeply about “unreasonable searches and seizures.” Therefore, if the government violated individuals’ reasonable expectations of privacy, even in the 21st century, judges like him should suppress any evidence collected by police. In a recent case he also suggested that government DNA swabs from inside a suspect’s mouth in order to solve other crimes violated the 4th Amendment. According to Justice Scalia, who believed in clear rules and bright lines, “suspicion-less searches are never allowed if their…end is ordinary crime-solving. That prohibition is categorical and without exception.” In addition to his strong views on the 4th Amendment, Justice Scalia emphasized the rights of juries to determine sentences and for criminal defendants to confront their accusers (both rights emanate from the 6th Amendment). In many cases, consistently applying these constitutional principles and the bright line rule means that defendants, no matter how unsympathetic they are, must be able to cross-examine their accusers (provided the accuser is available).
Of course, his originalism also led him to more conservative results as well, especially when it came to the death penalty, abortion, and same-sex rights. Regarding the death penalty, Scalia noted that the 5th Amendment contemplated the death penalty, stating that “no person should be held to answer for a capital crime…unless on a presentment or indictment of a Grand Jury….nor be deprived of life….without due process of law.” In Scalia’s view, this permits the the death penalty to be imposed, meaning it is not a “cruel and unusual” punishment prohibited by the 8th Amendment.
Scalia felt that constitutional endorsement on matters like the death penalty meant that legislatures could either prohibit OR permit these practices, but that it was not up to judges to categorically ban them. This is in line with his view of democracy and the people’s will as the best solution for policy change. Our critical evaluations of Justice Scalia’s theories in our courses help shed light on the larger and important debate about whether written laws and constitutional provisions should be interpreted in a static or dynamic way. Students have said that they came away with a greater appreciation of Scalia’s ideas, even if they disagreed with him.
Jeffrey Rosen, a Doctor of Law and Policy distinguished guest lecturer and President and CEO of the National Constitution Center, said it best: “Perhaps the greatest sign of Scalia’s influence is that liberal justices and scholars now make arguments about constitutional text and history, insisting that the conservative justices are ignoring the text and original understanding of the Constitution that Scalia insisted should be their guide. More than any justice since the liberal lion William Brennan, Scalia changed the way Americans debate the Constitution, and for that he deserves great respect.” In her recent remarks on Justice Scalia, Justice Kagan said “in 100 years, most people are not going to know most of our names.” In fact, most people do not know any of the justices’ names! In a 2012 poll, roughly 34% of Americans could name a single Supreme Court Justice. Regardless of whether they can identify Justice Scalia by name, all Americans have been influenced by his important intellectual and judicial legacy.