Justice Antonin Scalia

  • September 26, 2011

    by Jeremy Leaming

    Over the weekend Supreme Court Justice Antonin Scalia at Duquesne University Law School highlighted his belief that religious institutions have a constitutional right to flout official policy prohibiting discrimination against gays, and offered yet another defense of his method of constitutional interpretation, originalism.

    Duquesne University describes itself as a “Catholic and Spiritan University.”

    Scalia said, according to the Pittsburgh Tribune-Review, “Our educational establishment these days, while so tolerant of and even insistent upon diversity in all other aspects of life seems bent on eliminating diversity of moral judgment – particularly moral judgment based on religious views."

    He cited as examples, the newspaper reported, “attempts to sue a religious university in Washington, D.C., for offering only same-sex dorms and other attempts by a law school association to bar schools that discriminate against homosexuals.”

    Adding, “I hope this place will not yield – as some Catholic institutions have – to this politically correct insistence upon suppression of moral judgment, to this distorted view of what diversity in America means.”

    In a post for ThinkProgress Ian Millhiser says the justice’s “insistence that religious institutions enjoy a special right to discriminate against gay people is particularly troubling, and it has worked its way into decisions on the Supreme Court. In Christian Legal Society v. Martinez, a conservative Christian student group claimed the special right to have a state university subsidize their organization even though it refused to comply with the university’s anti-discrimination policy. Scalia joined a four justice dissent that would have given anti-gay groups exactly that right.”

    At the Duquesne event Scalia also defended his application of originalism “against those who say his approach is too ideological or rigid."

    Last week, Scalia, at a Constitution Day event at the American Enterprise Institute, was not in a defensive posture over originalism. Instead he chided so-called “living constitutionalists,” as jurists who flaunt the Constitution’s text to reach decisions that have expanded privacy rights.

    For example, Scalia bemoaned the Supreme Court opinions that overturned a law criminalizing sodomy, and that held women have the right to abortions.  He’s lambasted the opinions in Lawrence and Roe before, but during his talk at AEI, had added some more thought to what he dubbed the “Constitution-as-aspiration-approach.”

  • September 22, 2011

    by Jeremy Leaming

    Federal appeals court judge and University of Chicago law school professor Richard A. Posner in an interview with The New York Review of Books laments the nature of judicial hearings, especially those for Supreme Court selections, as being unhelpful, and questions Justice Antonin Scalia’s adherence to originalism, writes Christopher Shea for The Wall Street Journal.

    The entire interview with Posner is behind a pay wall, but Shea writes that Posner discusses “what he sees as inconsistencies in Justice Antonin Scalia’s application of the ‘orginalist’ judicial philosophy…”

    Shea adds that Posner (pictured) maintains that at times judges do create law because “constitutional text is sufficiently ambiguous.” He quotes Posner as saying:

    At my confirmation hearing back in 1981, when confirmations were much less controversial (and of course court of appeals nominees don’t get the same scrutiny as Supreme Court justices, though they are getting much more than they did when I was confirmed), Strom Thurmond, the chairman of the Judiciary Committee, asked me, “Do you agree that judges should just apply the law; they shouldn’t make the law?” I said that was usually the case but some cases are indeterminate and to decide them the judge may have to create some law.

    As noted here yesterday, earlier this week at the American Enterprise Institute, Scalia, as is his wont, chided judges who supposedly do not take the Constitution seriously (such judges are those who do not apply originalism in the manner Scalia asserts he does).

    “If current social values are to be the yardstick for determining the Constitution’s meaning, then it would seem natural to entrust the task of constitutional interpretation, as in England, to the legislature, and to dispense with judicial review altogether,” Scalia said.

  • September 21, 2011

    by Jeremy Leaming

    To honor Constitution Day, Supreme Court Justice Antonin Scalia took to a podium at the American Enterprise Institute to heap plaudits on the renowned political science professor Walter Berns and knock so-called “living constitutionalists,” as advancing an inconsistent and wobbly method of constitutional interpretation.

    “I can think of no more fitting way to mark this event then [with] a lecture series in honor of my good friend Walter,” Scalia said Sept. 20 at AEI’s “Walter Berns and the Constitution: A Celebration of Constitution.”

    Saying Berns is likely best known for his 1987 book, Taking the Constitution Seriously, Scalia said he would take a bit of time to “discuss a particular way of taking the Constitution seriously, mainly taking the Constitution seriously as law.”

    But before doing so, Scalia noted a period of time when a group of jurists allegedly failed to take the Constitution seriously.

    “Since about the era of the Warren Court, American jurisprudence has been dominated by a different view of the Constitution – this view treats the document not as a legal text, with a fixed meaning, ascertainable through the ordinary tools of legal interpretation, but rather as a collection of indeterminate, aspirational provisions; a living document that serves as sort of a jumping off point for the creation of rights thought to be necessary in the current day and age,” he said.  

    Scalia said a case decided during the Supreme Court’s last term, NASA v. Nelson, offered a fine example of our “legal culture” losing sight of the Constitution’s “fundamentally legal nature.” The respondents in the case, Scalia, continued argued that the federal government had violated their constitutional rights by requiring them to undergo background checks. But the respondents’ brief, according to Scalia, did not “once identify the provision of the Constitution the government was alleged to have violated.”

    In “true” living constitutionalist style, Scalia charged that the respondents must have assumed the high court would view the right to informational privacy “to be a good thing, and like so many other good things, it would be read into the Constitution, never mind the text. The majority opinion, I’m happy to say, did not accept that invitation, but I’m not happy to say, it did not close the door to such claims either. My own view, that there is simply no constitutional right to informational privacy did not carry the day.”

    Too often, Scalia continued, the Supreme Court has gone the other way by ignoring the Constitution’s text in an effort to reach desirable outcomes.

    An example he said was Lawrence v. Texas, where the Supreme Court in a majority opinion led by Justice Anthony Kennedy, overturned a Texas law criminalizing sodomy.

    “Should there be a right to consensual sodomy?” Scalia asked. “The majority of my court thought so. And so in a case called Lawrence v. Texas, such a right was read into the Fourteenth Amendment’s due process clause, which as a guarantee of procedural fairness is textually incapable of containing such a substantive right.

  • June 6, 2011

    The notion that conservative jurists, such as Supreme Court Justice Antonin Scalia, have the market cornered on constitutional interpretation is ludicrous, because their preferred method of interpreting the nation’s founding document is “fundamentally flawed,” writes Geoffrey R. Stone for The Huffington Post.

    In “The Demise of ‘Originalism,” Stone, a distinguished law professor at the University of Chicago Law School and chair of the ACS Board, says the “Framers understood that they were entrusting to future generations the responsibility to draw upon their intelligence, judgment, and experience to give concrete meaning to these broad principles over time.”

    There are several reasons why so-called originalism is flawed, Stone writes. For starters, “it is exceedingly difficult to know with any certainty what they did or did not think about concrete constitutional issues. As a consequence, judges purporting to engage in originalist analysis often project onto the Framers their own personal and political preferences.”

    Stone continues:

    The result is unprincipled and often patently disingenuous jurisprudence. There is no evidence for the claims advanced by originalists, for example, that the original meaning of the Equal Protection Clause prohibited affirmative action or that the original meaning of the First Amendment included the notion that corporations had a constitutional right to spend unlimited capital to influence political elections. Both of these claims, however, are central to today’s conservative legal agenda.

    Stone says there is an even “more troubling phase of conservative constitutional jurisprudence,” one he dubs “conservative activism.” This type of activism readily dismisses “constitutional claims by women, political dissenters, and racial, ethnic, and religious minorities, but at the same time aggressively” invalidates regulations on corporations or gun control laws.

    Later today at the National Constitution Center in Philadelphia, Stone will participate in an event called “Judicial Activism Reconsidered.” For more information about the 6:30 p.m. event, including availability of tickets, visit the Constitution Center’s website

  • May 20, 2011

    Originalism, a wobbly method of constitutional interpretation promoted by jurists, such as Justice Antonin Scalia, has gained a stronger foothold among conservatives, especially in academia, but continues to be derided by historians, writes Saul Cornell in a piece for Dissent Magazine.

    “When most historians look closely at originalist arguments, what they usually find is bad history shaped to fit an ideological agenda – what historians derisively call ‘law office history,’” Cornell writes.

    Cornell, history professor at Fordham University and a senior research scholar at Yale Law School, details a rocky path for originalism, from its development during the Reagan years as a tool to reign in so-called activists judges to today’s “new originalists,” who have prospered thanks to “right-wing scholars, judges, and generous support from the Federalist Society, the wealthy conservative legal group that has become a farm team for conservative judges and academics.”

    The “goal of new originalism is not to constrain judges, but to empower them to further the agenda of conservatives,” Cornell continues.

    But despite their claim to be devoted to understanding the original meaning of the Constitution’s framers, the new originalists are actually either ignorant or dismissive of history. As Cornell points out, the framers were not monolithic in their views about the Constitution or constitutional interpretation.

    Cornell writes:

    John Yoo, a prominent new originalist legal scholar who helped to frame the Bush administration’s novel views on torture, goes even further in circumventing historical understandings of the Constitution. (The Founders, it is worth recalling, were strong supporters of the principle of international law and took a dim view of torture.) For Yoo, the actual history of the Founding era poses few constraints on the modern lawyer or judge. Yoo accomplishes this sleight of hand by ignoring the conflicts and disagreements among the Founders. If one ignores those conflicts, one can cherry-pick evidence to construct whatever theory one likes. Most historians would point out that the Founding era was not only characterized by conflicts within the elite, such as the argument between Jefferson and Hamilton, but also an even more basic conflict between elites and ordinary Americans. Yoo and other new originalists not only ignore the tensions within the elite, they assume that common people in the Founding era lacked the knowledge necessary to understand the Constitution and played no role in the constitutional history of the period. (Yoo clearly did not bother to look at the Pennsylvania Constitution, newspapers from the period, or any text written by ordinary Americans.)

    For more on constitutional interpretation see Keeping Faith With the Constitution, by Pamela S. Karlan, Goodwin Liu and Christopher H. Schroeder.