by Joseph Thai, Watson Centennial Chair in Law and Presidential Professor, University of Oklahoma College of Law
Even in death, Justice Antonin Scalia is larger than life. Praise upon his passing has been outsized from both friends and foes of his jurisprudence—ranking him at least as “one of the country’s most influential jurists” if not “the most important justice in American history.” Time will tell whether these extraordinary assessments are prescient or premature.
What is clear today is that the theory of constitutional interpretation that Justice Scalia championed—originalism—is one justice away from extinction on the Supreme Court. The only other avowed originalist in the history of the Court is Justice Clarence Thomas. This stark fact runs counter to the false dichotomy often peddled to the public that conservative jurists are faithful to the Constitution because they stick to its original or “dead” meaning (to quote Justice Scalia), while liberal jurists play fast and loose with constitutional text in favor of an updated or “living” meaning (again, Justice Scalia) that matches their own contemporary values.
In fact, the most cutting critic of originalism on the current Court is also one of its most conservative members, Justice Samuel Alito. For example, at oral argument in a case assessing the constitutionality of a ban on the sale of violent video games to minors, Justice Alito mocked Justice Scalia’s questioning about the original meaning of the First Amendment and its application to the case by boiling down his inquiries thus: “Well I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?”
And in a Fourth Amendment case involving surreptitious GPS tracking of a car over the course of a month, Justice Alito poked fun at Justice Scalia’s originalist methodology. He refused to join Justice Scalia’s opinion for the Court even though he agreed with the result, for rather than applying modern Fourth Amendment principles to “a 21st-century surveillance technique,” the Court “[i]ronically . . . has chosen to decide this case based on 18th-century tort law.” What is more, Justice Alito noted, “The Court suggests that something like this might have occurred in 1791” with a constable hiding in a coach, “but this would have required either a gigantic coach, a very tiny constable, or both—not to mention a constable with incredible fortitude and patience.”